It’s a sign of the chronic failure of the US justice system to deliver anything resembling justice to the men held at Guantánamo Bay that, nearly 20 years after the prison was established to hold them, for the most part, indefinitely without charge or trial — even though they were never adequately screened at the time of their capture — lawyers and judges are still arguing about whether or not those men have any right to see the government’s purported evidence against them.
Specifically, the arguments involve the extent to which — if at all — the Fifth Amendment’s Due Process Clause applies to the men held at Guantánamo, in which the most prominent players resisting its application have been, historically, judges in the appeals court in Washington, D.C. (the D.C. Circuit), and lawyers in the Civil Division of the Justice Department, who, under George W. Bush, Barack Obama and Donald Trump, and now under Joe Biden, have strenuously resisted efforts to extend to the Guantánamo prisoners any meaningful right to challenge the basis of their imprisonment.
On a very fundamental level, these arguments shouldn’t even be taking place at all. Way back in the mists of time, in Boumediene v. Bush, in June 2008, when the Supreme Court affirmed the Guantánamo prisoners’ constitutionally guaranteed right to challenge the basis of their detention via a writ of habeas corpus, the Court’s intention was that they would be entitled to a “meaningful review” of the basis of their imprisonment, in which the government would have to present its evidence openly, and have it challenged.
How Boumediene was gutted
However, as Jonathan Hafetz, a Professor of Law at Seton Hall University School of Law, explained in an article for Just Security on Sept. 1, “Since Boumediene, lower courts have sought to interpret the Supreme Court’s direction to provide ‘meaningful review’ to habeas detainees at Guantánamo. District court judges initially interpreted this review aggressively, insisting that the government provide actual evidence that a detainee directly engaged in hostilities (here’s a notable example that highlights the tone and tenor of previous judicial skepticism of the government’s positions defending detention) and granting habeas relief in nearly sixty percent of cases.”
As Hafetz added, however, “the D.C. Circuit — led by Judge A. Raymond Randolph, who openly denounced Boumediene — drastically narrowed this review in a series of decisions. As a result, more searching judicial inquiries of the government’s allegations — of the kind Boumediene seemed to require — were replaced by deference to multiple-level hearsay statements in government intelligence reports and, most importantly, to the expansive use of ex parte evidence, which flouts principles of fundamental fairness and severely undermines the ability of detainees to meaningfully challenge the government’s allegations.”
The two years after Boumediene marked the only time that the law has meaningfully applied at Guantánamo. 32 men had their release ordered by District Court judges, who found that the government had failed to establish that they were, in any meaningful sense, connected to either Al-Qaeda or the Taliban. However, the appeals court’s rulings brought to an abrupt this brief period when the law applied, and since the summer of 2010 no prisoner has secured a habeas ruling ordering their release, and most efforts to try to do so have been abandoned.
A key ruling in this period was Kiyemba v. Obama, in which, as the attorney Tom Wilner, who represented the prisoners in their Supreme Court cases, explained, the court ruled that, “although the detainees may have a right to a habeas hearing, they have no constitutional right to due process of law.”
It took until 2019 — and a shift in the D.C. Circuit Court’s make-up under President Obama — for judges, in Qassim v. Trump, a case involving the Yemeni prisoner Khalid Qassim, to “reverse [this] eight-year rule that has prevented Guantánamo detainees from seeing and rebutting the evidence purportedly justifying their detentions,” as Tom Wilner, who argued the case, explained. The judges were Obama nominees Patricia Millett and Cornelia Pillard, and Judge Harry Edwards, appointed by President Carter in 1980, and as I described it in an article in June, they “granted Qassim’s request to reverse the District Court’s denial of his petition for habeas corpus, sending it back to the lower court ‘to conduct Mr. Qassim’s habeas proceeding in accordance with procedures that would afford him a ‘meaningful review’ of the basis for his detention.’”
Unfortunately, Qassim’s case subsequently disappeared in the lower court’s collective in-tray, although it was not the end of the struggle for due process. As I also explained in my article:
[I]n May 2020 Judge Millett wrote the majority opinion in another case, Ali v. Trump, involving Abdul Razak Ali, an Algerian, in which the court, as New York Times columnist Linda Greenhouse explained, “held that the district court had been right to reject the inmate’s habeas petition, but wrong to do so categorically. Judge Millett noted that while ‘circuit precedent has not yet comprehensively resolved’ the question, ‘the district court’s decision that the Due Process Clause is categorically inapplicable to detainees at Guantánamo Bay was misplaced.’”
I added that, although this was “a perfectly reasonable ruling,” it “provoked fury” from Judge Randolph, who, as Greenhouse explained, “refused to sign Judge Millett’s opinion, accusing her of ignoring what he insisted was clear Supreme Court precedent that made the due process guarantee unavailable to ‘a nonresident alien enemy detained by the United States outside of our sovereign territory.’”
As I also explained:
Moreover, in September 2020, Judge Randolph was part of a panel led by Trump appointee Judge Neomi Rao, in Al Hela v. Trump, a case involving Abdulsalam al-Hela, a Yemeni businessman and politician allegedly involved with al-Qaeda, in which, responding to Al Hela’s claim that “the government’s reliance on anonymous hearsay in the intelligence reports it used to justify his continued detention violated his right to due process,” Judge Reo stated, “we reject Al Hela’s due process claims on the threshold determination that, as an alien detained outside the sovereign territory of the United States, he may not invoke the protection of the Due Process Clause.”
Greenhouse added that, “A footnote to her opinion contained the astounding assertion that ‘our court has adhered to Eisentrager’s holding [the World War II ruling relied upon by opponents of due process at Guantánamo] that the Fifth Amendment’s Due Process Clause does not apply outside the territorial United States and therefore cannot be invoked by detainees at Guantánamo Bay.’”
The third judge, Judge Thomas Griffith, who has subsequently retired, issued a separate opinion, in which he pointed out that “we have never made such a far-reaching statement about the Clause’s extraterritorial application,” but as Greenhouse added, “The objection was fruitless.”
Judge Griffith’s opinion may have been “fruitless” at the time, but it has subsequently had resonance, as an appeal against Judge Rao’s ruling was successful, and a full en banc court heard the case, now known as Al-Hela v. Biden, on Sept. 30. It may be, as Jonathan Hafetz argued a month ago, that “the full D.C. Circuit appears poised to (finally) recognize that the Fifth Amendment’s Due Process Clause applies to detainees at Guantánamo.” As he explained, “Not only were there sufficient votes on the Circuit to vacate and revisit the panel’s ruling to the contrary, but because of the change in presidential administration, the US government itself no longer disputes that the Clause applies.”
This sounds promising, but, as Hafetz added, although the Biden administration — after internal debates noted by the New York Times in July (see here and here) — may no longer dispute that the Due Process Clause applies, it is arguing instead that, in Hafetz’s words, “the Court should avoid the issue by ruling that the petitioner already received all the process he would have been due under the Constitution, including the ‘meaningful review’ guaranteed by the Suspension Clause under Boumediene” — even though that position actually appears to undermine its contention that it no longer opposes due process rights at Guantánamo.
The Al-Hela en banc hearing
While the court is clearly no longer as dominated by ideologically malignant right-wingers as it was when habeas corpus was first gutted a decade ago, it remains to be seen whether a majority of the judges will uphold Al-Hela’s appeal. As Middle East Eye reported, “While some judges showed concern over the limited legal options available to Guantánamo detainees to challenge their detention, others appeared cautious about issuing a sweeping constitutional ruling.”
Moreover, the Justice Department’s position remains as intransigent as it always has been. Flailing around for justifications to continue to deny him any rights, DoJ attorney Sarah Harrington seized on the fact that, in June, a review process at Guantánamo — the Periodic Review Boards — approved him for release. Harrington ignored the principle of due process by focusing narrowly on al-Hela’s particular case, stating that, because negotiations were ongoing to secure his transfer to their country, “I don’t think it would be appropriate for a court to try to impose itself into the negotiations that are going on”, as The Hill reported, also noting that she added that any ruling by the court “would just be sort of words on a paper and I don’t think it would have any effect.”
As the Washington Post reported, many of the judges had probing questions for the DoJ lawyers, although none of them seemed to be adequately addressed. Several judges “asked how the end of the Afghanistan war affected his continued detention,” with Judge Judith Rogers specifically asking Harrington, “You don’t deny that circumstances have changed dramatically?” to which Harrington’s reply was that , although circumstances may have changed, “Biden and his military leaders have ‘made clear that conflict with al-Qaeda and associated forces’ continues and Hela’s detention remains lawful” — even though that contradicts the PRB’s decision that al-Hela should be released because he no longer poses a threat to the US.
As the Post also explained, “Several judges, including [Ketanji Brown] Jackson [a Biden appointee] and Robert L. Wilkins [an Obama appointee], also expressed concern about the current system that allows the government to share certain classified evidence against a detainee only with the presiding judge, and not the detainee’s lawyer.” The Hill also picked up on this, noting that Judge Millett had “questioned the Biden administration’s attorney about its position that detainees have robust opportunities to bring legal challenges when their defense attorneys are often prohibited from viewing classified information that could be considered important evidence,” asking, “How can this process be remotely fair under [the DoJ’s] view” of the Constitution. Ignoring the specifics of Judge Millett’s question — about withheld evidence, which strikes to the heart of the due process concerns — the government, according to the Post, “took the unusual step of filing a letter with the court” — [s]everal hours after the argument ended” — “to clear up any mistaken impression from the hearing that there were ever times when evidence was so highly sensitive that it would also be withheld from the judge.”
Sen. Dick Durbin’s letter to Attorney General Merrick Garland
Fundamentally, the Justice Department’s position remains at odds with the administration’s stated intention not to accept Judge Rao’s position that due process rights do not extend to the men held at Guantánamo, and on this point it is not only worth remembering the long years in which DoJ lawyers have done all they can to keep men at Guantánamo, but also to look specifically at a letter that Sen. Dick Durbin (D-IL), the Chair of the Senate Judiciary Committee, sent to Attorney General Merrick Garland in July, urging the Justice Department “to reconsider its approach to ongoing detention at Guantánamo Bay.”
As Sen. Durbin wrote:
I urge you to ensure that the Department of Justice’s approach to ongoing detention at US Naval Station Guantánamo Bay reflects the values of our nation. Indefinite detention is antithetical to the ideals of liberty that the United States of America was founded upon. Every day that the prison remains open, its existence calls into question our commitment to human rights and the rule of law.
Unfortunately, for nearly two decades, executive branch lawyers, policymakers, and the courts have continued to rationalize indefinite detention at Guantánamo with numerous legal theories and justifications. The result of this approach is that we have continued to hold dozens of men without charge, trial, and access to due process.”
For years, the Department has sought to advance legal theories to justify detention until the end of a war with no definite end; the detention as “enemy combatants” of individuals who are not alleged to have taken up arms against us; and the denial of even the basic protections of due process. Further, the Department has frequently opposed the habeas petitions of detainees who are elderly, ill, or already approved for transfer.
The Department’s legal positions should reflect our nation’s commitment to liberty and the rule of law, recognizing that our nation is strongest when it adheres to its core values. Legal positions or arguments that may have once seemed justified to some in the aftermath of 9/11 must be viewed in light of current circumstances. As we approach the 20th anniversary of those attacks and the withdrawal of US forces in Afghanistan, the Department should revisit its positions and arguments regarding the continued authority to detain men without charge or trial — and without due process — at Guantánamo.
Most imminently, the Department should revisit its argument that detainees have no right to due process. For nearly two decades, our nation has failed to provide due process to detainees held at Guantánamo, resulting in the use of unreliable hearsay and coerced or torture-derived evidence and a shamefully low burden of proof for depriving men of their liberty. These inadequate standards and procedures have made it nearly impossible for detainees to prevail in litigation challenging their detention, and have significantly hindered efforts to close the prison.
Referring to the then-forthcoming Al-Hela hearing, Sen. Durbin noted that the Justice Department “has the opportunity and the responsibility to adjust course.”
In its 2008 decision in Boumediene v. Bush, the Supreme Court held that the Suspension Clause of the Constitution applies to Guantánamo, enabling detainees to challenge the legality of their detention through habeas corpus. In reaching this conclusion, the Supreme Court applied its longstanding functional approach to determine the applicability of the Constitution to non-citizens outside of the United States and held that “[i]n every practical sense Guantánamo is not abroad; it is within the constant jurisdiction of the United States.”
The Supreme Court did not directly rule on the applicability of the Due Process Clause to Guantánamo detainees in Boumediene, but the Court’s reasoning applies with equal force to that issue, given the close relationship between habeas and due process rights. As the Court noted in Hamdi v. Rumsfeld [in June 2004], the writ of habeas corpus can be employed “as a mechanism of judicial review” and the Due Process Clause “informs the procedural contours of that mechanism in [those instances].”
It is well past time for the Department to reconsider its approach to the applicability of the basic safeguards of due process to the men who remain imprisoned without charge or trial at Guantánamo, as well as other positions that help perpetuate this moral stain on our nation.
Sadly, as last week’s hearing showed, the Justice Department doesn’t appear to have properly taken Sen. Durbin’s criticisms on board, refuting Judge Rao’s position that due process doesn’t apply at Guantánamo in a fundamentally meaningless manner. The Justice Department’s position that al-Hela — or any other Guantánamo prisoner, for that matter — has “already received all the process he would have been due under the Constitution, including the ‘meaningful review’ guaranteed by the Suspension Clause under Boumediene,” as Jonathan Hafetz described it, is simply untrue, as the legal wreckage of the last decade shows, and the Justice Department should be ashamed of itself for providing, over a period of nearly 20 years, a procession of inexcusable obstacles preventing justice being delivered to the men held at Guantánamo.
As Tom Wilner explained to me after the hearing, “The concept of due process is straightforward. It is those processes and procedures developed through the centuries under the common law to ensure that anyone deprived of liberty has a fair opportunity to rebut the charges against him. It is perhaps the most fundamental protection of individual liberty in Anglo-American law, incorporated directly into the US Constitution. Adherence to those procedures — to due process of law — is the essence of the rule of law. Anyone deprived of due process is by definition deprived of the procedures necessary to ensure that he has a fair opportunity to rebut the charges against him.”