Judge Royce Lamberth of the District Court of the District of Columbia recently issued a ruling in Al-Hela v. Trump, a case arising out the post-9/11 detention of an alleged enemy combatant at Guantanamo Bay, Cuba. Al-Hela, having been captured in 2002 and transferred to Guantanamo in 2004, challenges the legality of his detention. Among other arguments, Al-Hela argued that his detention violated the Due Process Clause of the Fifth Amendment.
Judge Lamberth rejected the argument, holding that the Due Process Clause does not apply to Guantanamo Bay, relying heavily on the D.C. Court of Appeals' 2010 decision in Kiyemba v. Obama, 605 F.3d 1046, 1047-48 (D.C. Cir. 2010). Lamberth wrote as follows:
Petitioner argues that his detention is a due process violation.3 However, the due process clause does not apply to Guantanamo detainees. See Kiyemba v. Obama, 555 F.3d 1022, 1026-27, 384 U.S. App. D.C. 375 (D.C. Cir. 2009) (Kiyemba I), vacated and remanded, 559 U.S. 131, 130 S. Ct. 1235, 175 L. Ed. 2d 1070, reinstated in relevant part, 605 F.3d 1046, 1047-48, 390 U.S. App. D.C. 429 (D.C. Cir. 2010) (Kiyemba II). In Kiyemba I, the D.C. Circuit recited numerous Supreme Court cases for the proposition that 'the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." Kiyemba I, 555 F.3d at 1026-27 (citing Zadvydas v. Davis, 533 U.S. 678, 121 S. Ct. 2491, 150 L. Ed. 2d 653 (2001); United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 274-75, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990); Johnson v. Eisentrager, 339 U.S. 763, 783-84, 70 S. Ct. 936, 94 L. Ed. 1255 (1950)). Although the Supreme Court vacated Kiyemba I in order to afford the D.C. Circuit the opportunity to assess the' factual circumstances that had changed while the petition for certiorari was pending, see 559 U.S. at 131, the D.C. Circuit reinstated Kiyemba I's judgment and opinion in pertinent part in Kiyemba II, 605 F.3d at 1048. In subsequent cases, the D.C. Circuit has confirmed that Kiyemba II reinstated Kiyemba I's holding that detainees at Guantanamo do not possess constitutional due process rights. See Al-Madhwani v. Obama, 642 F.3d 1071, 1077, 395 U.S. App. D.C. 250 (D.C. Cir. 2011); see also Bahlul v. United States, 840 F.3d 757, 796, 426 U.S. App. D.C. 182 (D.C. Cir. 2016) (Millet, J., concurring); Al Bahlul v. United States, 767 F.3d 1, 33, 412 U.S. App. D.C. 372 (D.C. Cir. 2014) (Henderson, J., concurring). Applying Kiyemba II, district courts in this Circuit have refused to recognize due process claims by Guantanamo detainees. See Ali v. Trump, 317 F. Supp. 3d 480, 487-88 (D.D.C. 2018); Salahi v. Obama, Civ. No. 05-0569, 2015 U.S. Dist. LEXIS 168879, 2015 WL 9216557, at *5 (D.D.C. Dec. 17, 2018); Rabbani v. Obama, 76 F. Supp. 3d 21,25 (D.D.C. 2014); Ameziane v. Obama, 58 F. Supp. 3d 99, 103 n.2 (D.D.C. 2014); Bostan v. Obama, 674 F. Supp. 2d 9, 29 (D.D.C. 2009).
A deeper dive into Kiyemba will be the subject of a future blog post. However, it is interesting to note that the D.C. Circuit made its decision, and reaffirmed it, following the Supreme Court’s decision in Boumediene v. Bush, which held that the Suspension Clause of the Constitution applied in Guantanamo Bay. I can’t help but wonder what good providing habeas is, if there are no underlying rights to give content to the writ. The most likely source of any habeas relief would be a violation of the Due Process Clause, an avenue foreclosed by circuit precedent.
Just a reminder that nearly 18 years after September 11, we are still holding alleged enemies in detention, without trying them. Rather than being convicted of providing aid to our enemies, or engaging in hostilities toward the United States or our allies, his continued detention is based on a far lower standard that he :”more likely than not” supported al Qaeda and associated forces.
A copy of the redacted order is available here.