# United Sta tes Co urt of A ppea ls

F O R T H E D I S T R

I C T O F C O L U M B I A

C I R C U I T

Filed On: F ebrua

ry 22, 2019

No. 18-5297

A B D U L R A Z A K A L I , D E TA I N E E , A P P E L L A N T

v.

D O N A L D J

. T R

U M P , P R E S I D E N T O F T H E U

N I TE D S TA TE S , E T A L ., A P P E L L E E S

Appea l from the United States District Court for the D istrict of Columbia (No. 1:10-c v-01020)

On Petition for I nitial Hear ing E n Ba nc

______

B e f o r e : G A R

L A N D , Chief Judge ; H E

N D E R S O N , R O G E R S , T A T E L *

, G R I F F I TH , S R

I N I V A S A N , M I L L E TT , P I L L

A R D *, W I L K

I N S , A N D K A TS A S **, Circuit Judges

ORDER

Upon consideration of appellant’ s petition for initial hear ing en banc, the response there to, and the absenc e of a reque st by

any member of

the cour t for a vote , it is2

ORDERED that the petition be denied.

P er C uriam

F OR THE COURT :

Mark J. L ang er, Cler

k

BY : /s/ Ken Me adows Deputy

Clerk

* A statement by Circuit J udg e Tatel, with whom Circuit J udg e Pill ard joins, is attache d.

** Circuit J udg e Ka tsas did not participate in this matter.T ATEL , Circuit Judge

, with whom P ILLARD , 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 , b ut th is 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 il lustrates the dilemma. P etitioner 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 ther e 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 trace s 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 a s I read the opinion in Kiyemba I , that case neither implicated the right to procedural due process nor decide d whether its protections reach Guantanamo.2

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

, i d. at 1032 , explaining that the Constitution committed the question in that case

— concerning who may enter the United States

— to the political branches

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

cou rt, 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. 2 008) ). These phrases, a ccording 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

re maining 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 addresse d only one theory of how the D ue P rocess C lause might reach Guantanamo

. When the court said that the line of cases constraining the clause to3
sovereign U.S. territory barred the requested relief, see id. at 1026 & n.9, it never contemplate d

— 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 ea rlier

. 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 objectiv e 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 “non

U.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 Sacr a mento v. Lewis
, 523 U.S. 833, 845

– 46 (1998) (due process both requires “fundamental procedural fairness” and “protects against government power a rbitrarily and oppressively exercised”). C ontext, however, indicates that the court was referring to the right to substantive due process

. The relevant passage in Kiyemba I refuted t he premise that a “fundamental right of liberty” required the government t o 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

. T he detainees asserted no procedural due process rights

, s ee4

555 F.3d at 1024 , and w e 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 appellat e 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 Gu antanamo 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.” 5 63 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 d etainee] had a constitutional right to due process.” 642 F.3d 1071, 107 7 (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 w ould 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 deserve s 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 consi deration. But because it should be5

considered first by a panel

, I concur in the denial of initial hearing en banc

.