United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed On: February 22, 2019

No. 18-5297

ABDUL RAZAK ALI, DETAINEE,

APPELLANT

v.

 DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, 

 ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-01020)

On Petition for Initial Hearing En Banc

______

Before: GARLAND,Chief Judge; HENDERSON,ROGERS, TATEL*,

GRIFFITH, SRINIVASAN, MILLETT, PILLARD*, WILKINS, AND

KATSAS**, Circuit Judges

ORDER

Upon consideration of appellant’s petition for initial

hearing en banc, the response thereto, and the absence of a

request by any member of the court for a vote, it is
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ORDERED that the petition be denied.

Per Curiam

 FOR THE COURT:

 Mark J. Langer, Clerk

BY: /s/

 Ken Meadows

 Deputy Clerk

* A statement by Circuit Judge Tatel, with whom Circuit Judge

Pillard joins, is attached.

** Circuit Judge Katsas did not participate in this matter.
TATEL, Circuit Judge, with whom PILLARD, Circuit Judge, 

joins, concurring: At the heart of this appeal lies a question 

undoubtedly of exceptional importance: whether the 

procedural protections of the Fifth Amendment’s Due Process 

Clause extend to persons detained at the Guantanamo Bay 

Naval Base. Someday this court may well need to address that 

question en banc, but this is not that day. Because I read our 

case law to leave unresolved the extent of the Due Process 

Clause’s reach into Guantanamo Bay, I concur in the denial of

initial hearing en banc. 

The tightrope walk performed by both parties in the 

briefing on this petition well illustrates the dilemma. Petitioner 

apparently recognizes that our cases do “not preclude extension 

of the Due Process Clause to Guantánamo.” Pet. 13. Perhaps 

recognizing that this position is unlikely to win him an initial 

hearing en banc, he adds that there is “obvious confusion” on 

the issue among the “various opinions and statements by judges 

of this Circuit.” Id. at 16. On the other side, the government

thinks there is no work for a panel to do because this court has

“clearly and repeatedly answered” the question by holding that 

due process is unavailable at Guantanamo, Opp. 7, but 

nonetheless takes the position that initial en banc review is 

inappropriate, id. at 7–8. 

The government traces its insistence that this circuit has 

resolved the question to Kiyemba v. Obama (Kiyemba I), 555 

F.3d 1022, 1026–27 (D.C. Cir. 2009), vacated, 559 U.S. 131 

(2010) (per curiam), reinstated in relevant part, 605 F.3d 1046 

(D.C. Cir. 2010) (per curiam). See Opp. 7; see also Ali v. 

Trump, 317 F. Supp. 3d 480, 488 (D.D.C. 2018) (reading 

Kiyemba I to answer the question). But as I read the opinion in

Kiyemba I, that case neither implicated the right to procedural 

due process nor decided whether its protections reach 

Guantanamo. 
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In Kiyemba I, all agreed that the detainees in question 

should be released. 555 F.3d at 1024. The only question was 

where. See id. Granting the detainees habeas relief, the district 

court ordered the government to release them into the United 

States. Id. We reversed, id. at 1032, explaining that the 

Constitution committed the question in that case—concerning 

who may enter the United States—to the political branches, see 

id. at 1026 (“As a result, it ‘is not within the province of any 

court, unless expressly authorized by law, to review the 

determination of the political branch of the Government to 

exclude a given alien.’” (quoting United States ex rel. Knauff 

v. Shaughnessy, 338 U.S. 537, 543 (1950))).

Along the way, however, the Kiyemba I court addressed

the district court’s notion that “some ‘constitutional 

imperative’” protecting “‘the fundamental right of liberty’” 

authorized the release order. Id. (quoting In re Guantanamo 

Bay Detainee Litigation, 581 F. Supp. 2d 33, 34, 43 (D.D.C. 

2008)). These phrases, according to the court, “suggest[ed] that 

the [district] court may have had the Fifth Amendment’s due 

process clause in mind.” Id. “But the due process clause,” the 

Kiyemba I court explained, “cannot support the court’s order of 

release” because “[d]ecisions of the Supreme Court and of this 

court . . . hold that the due process clause does not apply to 

aliens without property or presence in the sovereign territory of 

the United States.” Id. The court consigned to a footnote the 

remaining piece of the syllogism, stating that “[t]he 

Guantanamo Naval Base is not part of the sovereign territory 

of the United States.” Id. at 1026 n.9. 

In my view, Kiyemba I did not resolve whether the Fifth 

Amendment affords detainees any procedural due process 

protections. The Kiyemba I court addressed only one theory of 

how the Due Process Clause might reach Guantanamo. When 

the court said that the line of cases constraining the clause to 
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sovereign U.S. territory barred the requested relief, see id. at 

1026 & n.9, it never contemplated—because nobody raised—

whether a successful theory might find support in Boumediene 

v. Bush, 553 U.S. 723 (2008), the Supreme Court’s

pathmarking decision issued just eight months earlier. In that 

case, the Court questioned the “argument that, at least as 

applied to noncitizens, the Constitution necessarily stops where 

de jure sovereignty ends,” id. at 755, and went on to explain

“that questions of extraterritoriality turn on objective factors 

and practical concerns, not formalism,” id. at 764. Accord Al 

Bahlul v. United States, 767 F.3d 1, 65 n.3 (D.C. Cir. 2014) 

(Kavanaugh, J., concurring in the judgment in part and 

dissenting in part) (reading Boumediene to “require[] a 

‘functional’ rather than ‘formalistic’ analysis” to determine 

whether a “particular constitutional provision” applies to “nonU.S. citizens in U.S. territories”). 

The Kiyemba I court, moreover, did not explain whether it 

was referring to the right to substantive due process or to the 

right at issue here, the right to procedural due process. Cf. 

County of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998) 

(due process both requires “fundamental procedural fairness” 

and “protects against government power arbitrarily and 

oppressively exercised”). Context, however, indicates that the 

court was referring to the right to substantive due process. The

relevant passage in Kiyemba I refuted the premise that a 

“fundamental right of liberty” required the government to 

release the detainees onto United States soil. Id. at 1026 

(internal quotation marks omitted). That hardly sounds like a 

procedural protection. See Washington v. Glucksberg, 521 U.S. 

702, 721 (1997) (recognizing that substantive due process is 

concerned with “fundamental liberty interest[s]”). Indeed, the 

relevant dispute in Kiyemba I concerned only whether the law 

gave the detainees a substantive right to enter the United States.

The detainees asserted no procedural due process rights, see 
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555 F.3d at 1024, and we should not lightly read our opinions 

to sweep far beyond the facts of a given case. See American 

Federation of Musicians v. FCC, 356 F.2d 827, 830 (D.C. Cir. 

1966) (“[T]he judicial function is best served, we believe, when 

appellate decision, after appropriate review, is limited to only 

those questions necessary to decide the case . . . .”). And 

although this court has occasionally restated Kiyemba I’s 

holding, see, e.g., Bahlul v. United States, 840 F.3d 757, 796 

(D.C. Cir. 2016) (en banc), it has never purported to expand the 

original opinion’s ambit. 

This limited understanding of Kiyemba I helps explain

why subsequent panels of this court have demurred from 

reading the case to resolve, for all time, the due process rights

of Guantanamo detainees. For example, in Rasul v. Myers, 

issued just two months after Kiyemba I, the court, including the 

two members of the Kiyemba I majority, declined to “decide 

whether Boumediene portends application of the Due Process 

Clause . . . to Guantanamo detainees.” 563 F.3d 527, 529 (D.C. 

Cir. 2009) (per curiam). Similarly, in Al-Madhwani v. Obama, 

we avoided deciding whether Kiyemba I foreclosed any due 

process rights by “assuming [the detainee] had a constitutional 

right to due process.” 642 F.3d 1071, 1077 (D.C. Cir. 2011). If 

Kiyemba I had actually decided that territorial sovereignty 

offers the only possible basis for extending any due process 

protections, then Rasul and Al-Madhwani would have had no 

reason to avoid the question.

Ali’s argument that the Due Process Clause has something 

to say about the length of his confinement is serious—and 

deserves to be taken seriously. The detentions at Guantanamo 

Bay, which the government tells us may last at least until the 

hostilities authorized in 2001 abate, are lengthening into 

decades, with no end in sight. This situation requires this 

court’s careful consideration. But because it should be 
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considered first by a panel, I concur in the denial of initial 

hearing en banc.