DC District Court rejects application of Due Process at Guantanamo Bay

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 remanded559 U.S. 131, 130 S. Ct. 1235, 175 L. Ed. 2d 1070reinstated in relevant part605 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.

Interesting student note on due process and asylum seekers

For those interested in the contested application of the Constitution to aliens seeking admittance and asylum, I recommend reading a note recently published in the Fordham Law Review. “A Constitutional Case for Extending the Due Process Clause to Asylum Seekers: Revisting the Entry Fiction after Boumediene,” 87 Fordham L. Rev. 289, by Zainab A. Cheema.

The note examines the continuing vitality of the “entry fiction,” the idea that even though an alien is physically present in the United States, they remain outside the border for legal purposes if they have not been granted admission or parole, in the wake of the Supreme Court’s decision in Boumediene. It argues that the impractical and anomalous test adopted by the Court in Boumediene would counsel in favor of greater procedural protections to asylum seekers who have passed a credible fear interview. Specifically, the note calls for bond hearings for these asylum seekers after a presumptively reasonable period of time.

It is a quick and interesting read and I commend it to you.

What do we mean by "extraterritorial" application?

Today's post will ask a theoretical question - what exactly do we mean when we say a provision of the Constitution applies extraterritorially?  In some cases, like Verdugo-Urquidez, it seems fairly obvious - the search took place outside the United States.  As the Court held, the violation occurs once the search or seizure is accomplished.  If that happens outside the U.S., then we are asking if the Fourth Amendment applies extraterritorially.

But what about the Fifth Amendment's Due Process Clause, or the Self-Incrimination Clause?  The Court was just as clear in Verdugo-Urquidez that a violation of the Self-Incrimination Clause only occurs at trial, when the coerced testimony is introduced.  However, that description does not appear to track the Court's jurisprudence surrounding the Self-Incrimination Clause.  As Professor Mark Godsey persuasively argued in a 2003 law review article, the Supreme Court in 1986's Colorado v. Connelly, shifted the focus of the Fifth Amendment's protections from introduction at trial to the conduct of police during the pretrial interrogation.  479 U.S. 157 (1986).  Given this, if a suspect is interrogated in Romania, may he challenge his confession as involuntary once he's returned to the United States for trial?

The Due Process Clause can be even trickier.  One can argue that it does not even come into play until one enters court.  If this is the case, then almost every application of the Due Process Clause of the Fifth Amendment will not be extraterritorial, since there are very few U.S. courts which sit outside the United States.  (Two notable exceptions are courts martial and military commissions). 

We see this interaction in cases dealing with personal jurisdiction.  The Court has a long history of cases in which it examines whether the Due Process Clause is offended when a foreign company is haled into a state court to face tort liability for actions in a state.  There, the Court asks whether the foreign corporation has "minimum contacts" with the forum to justify applying local laws to its actions.  Interestingly, the Court has never once asked whether such a foreign corporation has "substantial connections" to the United States such that it can claim the protections of the Due Process Clause in the first instance.

There are two potential explanations for this seeming inconsistency: 1) the Court assumes that the Due Process Clause applies because we are in U.S. courts, thus there is no question of extraterritoriality; or 2) the Due Process Clause is a constraint on Government power, a la Black's opinion in Reid, and thus it serves to limit what the Government may do regardless of who is on the other side.  Sadly, the Court has never addressed the question head on.  But some lower courts have.  In those cases, they seem to indicate that the former explanation is the correct one.  They have held that the mere presence of the corporation through their lawyer in Court provides them the connection necessary to assert the Due Process Clause's protections.

It is a fairly unremarkable claim that the Due Process Clause applies in U.S. courts, regardless of who is seeking to enforce it.  Given that, it appears that courts are of the opinion, without directly saying so, that when a foreign corporation challenges the application of a state's long arm statute under the Due Process Clause, they are not asking the Court to apply the Clause outside the United States.

These questions are more than academic.  Professor Godsey concludes that under Supreme Court precedent, if the Connelly view of confessions controls, aliens interrogated abroad would not be able to claim the protections of the Fifth Amendment, contra to the Court's statement in Verdugo-Urquidez.  As for other applications of Due Process, it would help if the Court would take the next opportunity to clarify on what basis foreign corporations claim the protections of Due Process is.  For now, there appears to be a bit of tension between the Court's personal jurisdiction cases, which require only "minimum contacts" and its extraterritorial cases, which require "substantial connections."  Answering the question of what we mean by "extraterritorial" may help resolve this tension.

Further Reading:

Mark A. Godsey, "The New Frontier of Constitutional Confession Law -- The International Arena: Exploring the Admissibility of Confessions Taken By U.S. Investigators Abroad," 91 Geo. L. J. 851 (April 2003).

First Investment Corp. of the Marshall Islands v. Fujian Mawei Shipbuilding, Ltd. et al, 703 F.3d 742 (5th Cir. 2012).

Does the Constitution follow the flag?

This is the quintessential question this blog seeks to answer.  It is my hope and plan to cover developments in both the law and academia, by reviewing cases and interesting pieces of scholarship that shed light on this question, while also providing my own thoughts and insights, as someone who has been considering the question for over 15 years.

To help get a better grasp of the underlying issues, I thought it would be helpful to give a brief overview of some of the major cases in the area, to see where we've been and where we are going.  I will do more in-depth examinations of each of these cases (and others) in future posts.

One final note before we delve into this post - this is only the briefest of overviews and is far from comprehensive.  Think of it as a journey from Seattle to San Diego - we're not going to identify every little town along the way, but we'll note the major cities on the journey.

In re Ross, 140 U.S. 453 (1891) - Ross dealt with a seaman on an American-flagged vessel in Yokohama Harbor, Japan, who committed murder on board ship.  Under the terms of a treaty with Japan, Ross was tried and convicted in a consular court by the US Consular General.  He was sentenced to death and transferred to the United States. Ross challenged the conviction on two grounds - first, he argued that as a Canadian citizen, he was not subject to the jurisdiction of the consular court.  Second, he argued that he could not be held for the charge except upon presentment or indictment of a grand jury, under the terms of the Fifth Amendment.  The Court rejected both arguments.  As a sailor on an American-flagged vessel, Ross was subject to American law.  As to the claim under the Fifth Amendment, the Court held that "the Constitution can have no operation in another country."  Thus, no one could claim the protections of the Constitution outside the territorial boundaries of the United States.

The Insular Cases, (1901-1923) - The Insular Cases were a series of Supreme Court decisions dealing with the application of the Constitution to the so-called "insular territories," those acquired after the Spanish-American War.  These included, at the time, Puerto Rico, Cuba, and the Phillippines.  Today, they apply with equal force to Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.  The cases covered multiple provisions of the Constitution, beginning with the Uniform Duty Clause of Article I, and encompassing the right to a jury trial under the Sixth Amendment.  The Court ultimately concluded that, while fundamental rights would apply of their own force to these territories, procedural rights, like the jury trial, would not apply unless Congress took some affirmative steps.

Johnson v. Eisentrager, 339 U.S. 763 (1950) - Eisentrager addressed the question of whether foreign enemies, who had never set foot in the United States, could claim the protections of the Constitution.  Eisentrager was one of eight German prisoners of war, who were captured and tried by military commission in China and transferred to an American-run prison in Germany for incarceration.  They sought a writ of habeas corpus in the District Court for the District of Columbia, arguing that their trial and continued detention violated Articles I and III of the Constitution, as well as the Fifth Amendment.  The Court denied the claim.  It held that enemy aliens, with no ties to the United States, had no right to claim the protections of the Fifth Amendment.  Two key arguments come from this case: 1) "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society." 339 U.S. at 770. In other words, the more contact an alien has with the United States, the greater his claims on the protections of the Constitution; and 2) "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 even hinted at it. The practice of every modern government is opposed to it." 339 U.S. 784-785 (internal citations omitted).

Reid v. Covert, 354 U.S. 1 (1957) - Reid actually consolidated two cases, both dealing with wives of servicemen who murdered their husbands while stationed overseas.  Both were tried by military courts martial and sentenced to life imprisonment.  They argued that such courts martial violated the Fifth and Sixth Amendments.  Here, the Court sided with the women.  In a four-justice plurality opinion, Justice Hugo Black wrote: "At the beginning, we reject the idea that, when the United States acts against citizens abroad, it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.  Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.  When the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." 354 U.S. at 5-6 (footnotes omitted).  Thus, Justice Black would have emphatically protected the rights, at least of American citizens, to the protection of the Constitution, wherever the United States attempted to prosecute them.  In addressing Ross and The Insular Cases, Black believed they were relics of history and best left there.  "[W]e can find no warrant, in logic or otherwise, for picking and choosing among the remarkable collection of 'Thou shalt nots' which were explicitly fastened on all departments and agencies of the Federal Government by the Constitution and its Amendments."  354 U.S. at 9.  The second Justice Harlan concurred, but on much narrower grounds.  He argued that the proper way to judge when the protections of the Constitution should apply is when providing those protections would not be "impracticable or anomalous."  In this case, given that the women faced the penalty of death, the Government should be required to transport them home and try them before a civilian court.

United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) - Verdugo-Urquidez concerned a claim by a Mexican national that a search of his home, in Mexico, by U.S. Drug Enforcement Agency agents, violated the Fourth Amendment, because they lacked a warrant.  After the search of his home, he was arrested and brought to the U.S. for trial.  He argued that the evidence should be suppressed.  Chief Justice Rehnquist wrote an opinion for four justices holding that the Fourth Amendment did not apply to foreigners who lacked "substantial connections" with the United States.  Specifically, he wrote: "[The Fourth Amendment], by contrast with the Fifth and Sixth Amendments, extends its reach only to 'the people.' ... 'the people' seems to have been a term of art employed in select parts of the Constitution."  494 U.S. at 265.  Thus, because the Fourth Amendment protected only "the people" and since Verdugo-Urquidez's only connection to the United States was his presence for trial, he was not protected.  Justice Kennedy filed a concurring opinion, which provided the fifth vote.  While he stated that his opinion did not differ from Rehnquist's, he relied on Justice Harlan's "impracticable and anomalous" test in Reid, and held that it would be impractical to apply the Fourth Amendment's warrant requirement outside of the United States.  First, there were no judges with jurisdiction to issue such a warrant; second, Mexican notions of privacy might be so foreign to our own as to make a judgment about the reasonableness of the search impossible; and third, applying the Fourth Amendment could interfere with our relations with the Mexican government.

Boumediene v. Bush, 553 U.S. 723 (2008) - Most recently, the Court finally adopted the "impracticable and anomalous" test from Reid when it held that the writ of habeas corpus could not be denied to enemy aliens held in U.S. military custody in Guantanmo Bay, Cuba.  Under the Suspension Clause, the writ of habeas corpus may only be suspended by Congress during times of rebellion or civil unrest.  Furthermore, because the United States exercises de facto sovereignty over the naval base at Guantanamo Bay, the prisoners are, for all intents and purposes, within U.S. territory.  Given this U.S. control, it would not be impracticable or anomalous to extend the writ of habeas corpus to those imprisoned on the island.

This concludes our brief survey of the history of the extraterritorial application of the Constitution.  Thanks for reading this far.  As I noted above, I will be exploring each of these decisions, as well as others, in more depth in future posts.  For now, I welcome any questions or comments.