Due Process for Guantanamo Detainees: The D.C. Circuit Rules in Qassim

On June 21, the U.S. Court of Appeals for the D.C. Circuit returned to the question of the constitutional rights possessed by the detainees remaining at the U.S. naval base at Guantanamo Bay, Cuba. In particular, Khalid Ahmed Qassim asserted a Fifth Amendment due process right to see the classified information that allegedly supports his detention. The court walked away from prior sweeping language it used saying that the detainees have no due process rights and held that such rights may apply in a habeas proceeding.

To understand the issue, it is helpful to have a bit of history of how the Constitution has applied to enemy detainees. Addressing enemy prisoners in U.S.-occupied Germany at the end of World War II, the Supreme Court held in Johnson v. Eisentrager that aliens detained as enemies outside the United States are not “entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus.” The court further said that the Fifth Amendment would apply to such enemy detainees: “Can there be any doubts that our foes would also have been excepted [from the reach of the Fifth Amendment], but for the assumption ‘any person’ would never be read to include those in arms against us?” In so holding, the court emphasized that “at no relevant time” were the enemy detainees “within any territory over which the United States is sovereign.”

That remained the state of the law until 2008. In Boumediene v. Bush, the Supreme Court held that even though Guantanamo Bay was not United States sovereign territory, it is “under the plenary control, or practical sovereignty” of the United States. And the court held that the detainees at Guantanamo have a right, under the U.S. Constitution, to bring a habeas petition to challenge the legality of their detention. In so holding, however, the court said it was not addressing “the content of the law that governs petitioners’ detention. That is a matter yet to be determined.” Rather, the court was only holding that the Guantanamo detainees “may invoke the fundamental procedural protections of habeas corpus.” That right entitles the detainee “to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” And, the Supreme Court held, the habeas court must have the power to order release of the detainee.

After Boumediene, a detainee who was ordered released in a habeas proceeding claimed a right to enter the United States, but the court of appeals rejected that argument. In Kiyemba v. Obama, the court held that the habeas release right was not a right to enter the United States and also rejected the argument that the detainee’s ongoing detention while the government sought to place him in another country violated the Fifth Amendment Due Process Clause. Eisentrager still controlled, the court said, and the detainees at Guantanamo possessed no constitutional rights beyond the right to habeas review: “[T]he due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.”

In Qassim, the D.C. Circuit now faced the looming question of whether due process rights apply in the habeas proceeding itself. This issue has laid dormant for the past decade largely because the district courts have afforded the detainees ample procedural rights, honoring the Supreme Court’s edict that habeas includes the “meaningful opportunity to demonstrate” that the detention is unlawful.

But Qassim seemed to be seeking more than the habeas right would afford. He wanted access to the classified information supporting his detention. That information was being shared with his cleared counsel but not with him. The unclassified version of the evidence showed that Qassim retreated from the front lines, near Bargam, to an al-Qaeda-affiliated guest house and then to the Tora Bora, where he spent 20 days and was present for a nighttime visit from Osama bin Laden. Post-Boumediene, courts have found that type of evidence to be more than enough to support detention based on affiliation with al-Qaeda.

Qassim needed to somehow exclude the classified material supporting those unclassified “facts.” He argued that, under the Fifth Amendment Due Process Clause, unless the classified material could be shared with him, it had to be excluded. The district court denied the motion, reading Kiyemba as establishing that Qassim had no right to due process.

The court of appeals, in an opinion by Judge Patricia Millett, has now held that the district court should not have read Kiyemba as a categorical bar on constitutional procedural protections in habeas litigation involving the detainees. The court explained that Kiyemba neither presented nor decided the question of whether Guantanamo detainees “enjoy procedural due process protections under the Fifth Amendment (or any other constitutional source, see, e.g., Suspension Clause, U.S. Const. Art. I, § 9, cl. 2) in adjudicating their habeas petitions.”

The court also held, however, that “Qassim’s quest to see the classified information underlying his detention” was premature. The court noted that the district court’s case management order provided a mechanism for the exchange of classified information with cleared counsel. While the case management order generally prevents detainees themselves from reviewing the classified information, the court found that Qassim’s counsel has the right to request that information be declassified. The parties invoked none of those discovery procedures provided by that order, the court noted: “As a result, the parties never tested the disclosure procedures in the case management and protective orders.” The court further observed that “the government has advised for the first time on appeal that, were Qassim to pursue the available procedures, he might “receive most or all of the information to which he ... claims due process entitles him.’”

Given this very premature context, the appellate court held that it is impossible to determine (1) which information would be disclosed under the district court’s case management order and the government’s newly found optimism on appeal about available disclosures; (2) whether any information that might be withheld even implicates possible constitutional disclosure obligations; or (3) what the consequences of extending constitutional procedural rights to alien detainees at Guantanamo Bay would be—that is, what balance would be struck between the government’s potential justifications for any withholdings and the need of Qassim and his counsel to see the material in order to meaningfully litigate his habeas petition.

Accordingly, the court of appeals reversed and remanded to the district court to determine how the process plays out under the case management order. The court added that, on remand, the district court “will be free to modify the procedures set out in the case management order as necessary to facilitate resolution of the constitutional questions raised in this case.”

At oral argument, however, all three appellate judges (Judges Millett, Cornelia Pillard and Harry Edwards) made clear that if the district court adopted a process like that provided under the Classified Information Procedures Act (CIPA), this would likely be constitutionally adequate. Under that process, classified information is shared with cleared counsel and an adequate unclassified summary or substitute is provided to the defendant. Thus, it remains highly doubtful that the court of appeals would provide the detainee here, or in general, the right to direct access to classified materials.

Qassim’s counsel also objected at oral argument that the classified materials provided to the defense contained redactions. At argument, the government explained that the redacted materials do not include material the government was relying on to support detention and, thus, did not need to be shared with counsel. The government said that the district court could have asked to review the materials in an unredacted form in camera (i.e., in chambers, without being providing to the detainee counsel) but that none of that redacted material was relevant to the detention decision. At oral argument, at least, the court seemed troubled by the submission of such redacted materials to a court. The government, however, frequently uses such redactions to limit the classified disclosures to what there is a “need to know.” The panel seemed to think that it was too difficult to understand the classified documents relied on without seeing the relevant materials in full context. But the court’s opinion leaves that dispute for another day.

The big headline here is that the D.C. Circuit has limited Kiyemba and held for the first time that constitutional due process rights may apply to habeas proceedings. The bottom line, though, is that the ruling probably matters little in general, or even for Qassim, because the processes already being afforded in the Guantanamo habeas cases seem to meet the relevant due process standards—but time will tell.