Due Process Rights for Guantanamo Detainees

Due Process Rights for Guantanamo Detainees

Legal Sidebari

Due Process Rights for Guantanamo Detainees
November 2, 2021
The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) granted a petition for
rehearing en banc in Al Hela v. Biden, vacating a three-judge panel opinion holding that law-of-war
prisoners detained at the U.S. Naval Station at Guantanamo Bay, Cuba, are not entitled to due process
under the U.S. Constitution. The decision to rehear the case may not necessarily portend good news for
the detainee because the D.C. Circuit has in multiple cases declined to decide the question, at one point
overturning a district court ruling denying that Guantanamo detainees are entitled to constitutional due
process, expressly leaving the question undecided. The D.C. Circuit has preferred instead to avoid the
constitutional question by assuming without deciding that detainees are entitled to such rights but that
typically petitioners have received all of the process that is due. Consequently, it seems likely that the
D.C. Circuit on rehearing Al Hela will be voting on deciding whether Guantanamo detainees have due
process rights, but may not necessarily decide the issue. If the D.C. Circuit determines Al Hela is the
proper vehicle for deciding the due process question, the answer will likely turn on which Supreme Court
precedent the court deems controlling.
Supreme Court Precedent
Johnson v. Eisentrager
Johnson v. Eisentrager involved a group of German enemy aliens held by U.S. forces in Germany after
their conviction by a military commission. The Supreme Court framed the question as follows:
We are here confronted with a decision whose basic premise is that these prisoners are entitled, as
a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To
support that assumption, we must hold that a prisoner of our military authorities is constitutionally
entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United
States; (c) was captured outside of our territory and there held in military custody as a prisoner of
war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the United States; (f) and is at all times imprisoned
outside the United States.
The Court answered this question in the negative, explaining that “these prisoners at no relevant time
were within any territory over which the United States is sovereign, and the scenes of their offense, their
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capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the
United States.” The petitioners were thus not entitled to bring a habeas petition in U.S. court.
During the course of its review of the decision below, the Court described the opinion below as resting on
the false notion that the “Right to the writ … is a subsidiary procedural right that follows from possession
of substantive constitutional rights,” including a general right to liberty. The Court interpreted the Fifth
Amendment’s application to “any person” to exclude aliens outside of U.S. territory.
If the Fifth Amendment confers its rights on all the world except Americans engaged in defending
it, the same must be true of the companion civil-rights Amendments, for none of them is limited by
its express terms, territorially or as to persons. Such a construction would mean that, during military
occupation irreconcilable enemy elements, guerrilla fighters, and “were-wolves” could require the
American Judiciary to assure them freedoms of speech, press, and assembly as in the First
Amendment, right to bear arms as in the Second, security against “unreasonable” searches and
seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.
Such extraterritorial application of organic law would have been so significant an innovation in the
practice of governments that, if intended or apprehended, it could scarcely have failed to excite
contemporary comment. Not one word can be cited. No decision of this Court supports such a view.
None of the learned commentators on our Constitution has ever hinted at it. The practice of every
modern government is opposed to it (internal citation omitted).
Subsequent Supreme Court holdings appear to confirm that the Eisentrager opinion extends outside
wartime circumstances involving enemy aliens to cover any alien outside U.S. territory. In United States
v. Verdugo-Urquidez, the Court relied on its “emphatic” holding in Eisentrager to deny Fourth
Amendment rights to aliens in a case not involving a wartime context. In Zadvydas v. Davis, the Court
applied Eisentrager in the immigration context to conclude that the Due Process Clause does not apply to
aliens who have not yet entered U.S. territory. In 2020, the Court in USAID v. Alliance for Open Society
International, cited Eisentrager (among other cases) to state that “it is long settled as a matter of
American Constitutional law that foreign citizens outside U. S. territory do not possess rights under the
U.S. Constitution.”
Boumediene v. Bush
In Boumediene, the Court departed from the holding in Eisentrager and its progeny that foreign citizens
outside U.S. territory do not enjoy constitutional rights. The government argued that Eisentrager
established conclusively that the Constitution’s Suspension Clause does not apply to enemy combatants
held outside of sovereign U.S. territory and that therefore, Congress acted constitutionally in revoking
their statutory right to petition for habeas corpus. Although the Supreme Court did not overrule
Eisentrager, it disagreed with the formalistic application of the holding and did not apply it to the instant
case. The Court disputed the idea that de jure sovereignty over territory controls the extraterritorial
application of the Suspension Clause. (Cuba maintains “ultimate sovereignty” over Guantanamo but
ceded “complete jurisdiction and control” over it to the United States by treaty in 1903). Rather, the Court
read Eisentrager together with other Court precedent regarding the extraterritorial application of the
Constitution (otherwise known as the Insular Cases) to conclude “questions of extraterritoriality turn on
objective factors and practical concerns, not formalism.”
Comparing the factors outlined above in the Eisentrager case to the situation of detainees at Guantanamo
Bay, the Court found some distinctions. Perhaps most important among these is the degree of control the
United States exercises over the territory where the naval station is situated. “Unlike its present control
over the naval station,” the Court explained, “the United States’ control over the prison in Germany
[where the Eisentrager prisoners were held] was neither absolute nor indefinite.” The Court also
distinguished among the types of procedural protections applied in determining the status of the detainees
in each case. In assessing the inconvenience that further protections would pose to the military, the Court

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stated, “The Government presents no credible arguments that the military mission at Guantanamo would
be compromised if habeas corpus courts had jurisdiction to hear the detainees’ claims.”
The Boumediene Court limited its holding to availability of the writ of habeas corpus, stating, “[o]ur
decision today holds only that the petitioners before us are entitled to seek the writ” and clarifying that
their “opinion does not address the content of the law that governs petitioners’ detention.” Accordingly,
the Court did not decide the question of what due process rights apply in Guantanamo detainee cases. At
the same time, the Court did identify a connection between the necessary scope of habeas review and the
Court’s test for procedural adequacy in the due process context.
It has been more than a decade since the Supreme Court has decided a case involving a Guantanamo
detainee, and the Court has not squarely addressed whether Guantanamo detainees are entitled to due
process under the Fifth Amendment, having declined to take up the issue as presented in Ali v. Trump. In
Ali, a panel of the D.C. Circuit declared a district court’s holding erroneous to the extent that the court
held that the Due Process Clause does not apply at all to Guantanamo detainees, but affirmed the lower
court’s decision to deny the detainee’s habeas petition on the basis that the petitioner’s due process claims
were unavailing.
One circuit judge in Ali concurred in the judgment only, arguing that Eisentrager forecloses the detainees’
assertion of due process claims under the Fifth Amendment. The now vacated decision in Al Hela rested
on a similar reasoning as the concurrence.
It appears that D.C. Circuit judges who have grappled with the question of due process rights for
detainees fall into two camps—they would either keep the due process question open based on the
functionalist approach of Boumediene or would use a more formalistic approach applying Eisentrager to
find that the Guantanamo detainees, as aliens outside the sovereign territory of the United States, are not
entitled to invoke the Fifth Amendment.
D.C. Circuit Precedent
In 2009, the D.C. Circuit held in Kiyemba v. Obama (Kiyemba I) that Guantanamo detainees who were
determined not to be enemy combatants but who could not be returned to their home country (China) due
to the likelihood of torture did not have a right to be released into the United States. The majority held
that habeas courts lack authority to compel the transfer of a non-citizen detainee into the United States,
even if that detainee is found to be unlawfully held and the government has been unable to effect his
release to a foreign county. The Kiyemba I decision was primarily based on long-standing jurisprudence
in the immigration context which recognizes that the political branches have plenary authority over
whether arriving aliens may enter the United States. The majority, however, also found that Guantanamo
detainees do not enjoy protections under the Due Process Clause of the Constitution, as they are non-
citizens held outside the United States and lack significant ties to the country. The Supreme Court vacated
and remanded the opinion due to changed circumstances because some of the detainees had received
offers to be resettled elsewhere. On remand, the D.C. Circuit in Kiyemba III reinstated its earlier opinion
with updated factual content. The Supreme Court declined certiorari.
In 2019, the D.C. Circuit cabined the Kiyemba due process holding by limiting that decision to its facts.
In Qassim v. Trump, the court construed Kiyemba as addressing only the substantive due process question
(i.e., the right to be released in the United States) of the appropriate remedy for petitioners whose right to
liberty was not at issue as their habeas petition had been granted. Kiyemba did not address, the court
explained, what procedural protections applied in habeas cases contesting the government’s right to detain
in the first instance. The court remanded the case to the district court to determine what constitutional
rights, if any, the detainee could assert. The full court denied a request to rehear the case en banc sua
sponte, with two judges dissenting, asserting that the panel’s opinion created an “irreconcilable conflict”

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with Kiyemba and Supreme Court precedent. Arguing that Qassim created an intra-circuit conflict, the
dissenters urged subsequent panels to follow their reading of Kiyemba as categorically foreclosing any
due process protections (substantive and procedural) for aliens abroad.
Al Hela v. Biden
Against this backdrop, the D.C. Circuit in Al Hela determined that the issue of what due process
protections should be afforded to aliens at Guantanamo had been adequately litigated (unlike in Qassim),
making the issue ripe for resolution. The court held that Eisentrager and its progeny dictated that “the
protections of the Due Process Clause, whether labeled ‘substantive’ or ‘procedural,’ do not extend to
aliens without property or presence in the sovereign territory of the United States.” Al Hela, in his
requests for a rehearing en banc, argued among other things that the panel’s categorical rejection of due
process rights for aliens outside U.S. territory conflicts with circuit and Supreme Court precedent. The
D.C. Circuit granted the petition for rehearing en banc and heard oral arguments September 30, 2021. The
court has not yet issued a decision.
In his brief on the merits, Al Hela argued that the functional approach in Boumediene applies equally to
the Due Process Clause. He contended that substantive due process provides that his continued detention
after nearly two decades requires the government to prove he poses a threat. He further claimed that he
was denied procedural due process by the district court’s reliance on ex parte secret evidence, multiple
layers of hearsay, a presumption of regularity with respect to government evidence, and the use of
preponderance of the evidence as a standard of review. Taken together, Al Hela maintained that these
defects denied him the opportunity for meaningful review as promised by Boumediene.
The government urged the appellate court to avoid deciding whether Guantanamo detainees are ever
entitled to assert due process rights. The government acknowledged it previously took the position that
the Fifth Amendment does not apply to Guantanamo detainees, explaining that it no longer takes a
position on this complicated question. The government argued that even if Al Hela is entitled to
constitutional due process rights, these protections would not entitle him to release. With respect to Al
Hela’s substantive due process claim that the government must prove a person poses a threat in order to
continue to detain him, the government responded that enemy combatants may always be held until the
cessation of hostilities to prevent their return to the battlefield.
With respect to Al Hela’s procedural due process claims, the government asserted that the Supreme
Court’s opinion in Hamdi v. Rumsfeld, which dealt with a U.S. citizen detained as an enemy combatant in
the United States, is the basis for determining what process is due and what procedures courts should
follow. The government pointed out that the D.C. Circuit has relied on Hamdi to find that hearsay
evidence is permissible; that the government may withhold sensitive evidence from Guantanamo
detainees in habeas cases; that the courts may accord a presumption of accuracy to government evidence;
and that a preponderance-of-the-evidence standard suffices. Accordingly, the government contended that
Al Hela’s habeas proceeding provided all of the process that was due in order to secure a meaningful
opportunity to review his detention.

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Author Information

Jennifer K. Elsea

Legislative Attorney

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