United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2019 Decided May 15, 2020

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)

Shayana D. Kadidal argued the cause for appellant. With 

him on the briefs were J. Wells Dixon, Pardiss Kebriaei, Baher 

Azmy, and H. Candace Gorman.

Anil Vassanji was on the brief for amicus curiae Professor 

Eric Janus in support of petitioner-appellant.

Thomas Anthony Durkin and George M. Clarke III were 

on the brief for amici curiae Tofiq Nasser Awad Al Bihani 

(ISN 893) and Abdul Latif Nasser (ISN 244) supporting 

appellant.

Brian E. Foster was on the brief for amicus curiae Human 

Rights First in support of petitioner-appellant. 
2

Sharon Swingle, Attorney, U.S. Department of Justice, 

argued the cause for appellees. With her on the brief were 

Hashim M. Mooppan, Deputy Assistant Attorney General, and 

Michael Shih, Attorney. Sonia M. Carson, Attorney, entered 

an appearance.

Before: ROGERS and MILLETT, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge MILLETT.

Opinion concurring in the judgment filed by Senior 

Circuit Judge RANDOLPH.

MILLETT, Circuit Judge: The United States has detained 

appellant Abdul Razak Ali, an Algerian national, at the 

Guantanamo Bay Naval Base in Cuba since June 2002. In this 

appeal, Ali asks the court to hold that the Fifth Amendment’s 

Due Process Clause categorically applies in full to detainees at 

Guantanamo Bay, and that his ongoing detention violates both 

the procedural and substantive aspects of the Due Process 

Clause. Those broad arguments are foreclosed by circuit 

precedent. To be sure, whether and which particular aspects of 

the Due Process Clause apply to detainees at Guantanamo Bay 

largely remain open questions in this circuit. So too does the 

question of what procedural protections the Suspension Clause 

requires. But Ali has eschewed any such calibrated or asapplied constitutional arguments in this case. For those 

reasons, the district court’s denial of Ali’s petition for a writ of 

habeas corpus is affirmed.
3

I

A

Shortly after the September 11, 2001 terrorist attacks, 

Congress passed the Authorization for Use of Military Force

(“AUMF”), Pub. L. No. 107-40, 115 Stat. 224 (2001). That

law empowers the President “to use all necessary and 

appropriate force against those nations, organizations, or 

persons he determines planned, authorized, committed, or 

aided the terrorist attacks that occurred on September 11, 

2001[.]” Id. § 2(a), 115 Stat. at 224. This includes the 

detention of “those who are part of forces associated with Al 

Qaeda or the Taliban[.]” Al-Madhwani v. Obama, 642 F.3d 

1071, 1073–1074 (D.C. Cir. 2011) (quoting Al-Bihani v. 

Obama, 590 F.3d 866, 872 (D.C. Cir. 2010)); see also Hamdi 

v. Rumsfeld, 542 U.S. 507, 516, 518–519 (2004) (plurality

opinion).

Congress subsequently passed the National Defense 

Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 

125 Stat. 1298 (2011). That Act “affirms that the authority of 

the President to use all necessary and appropriate force 

pursuant to the [AUMF] includes the authority for the Armed 

Forces of the United States to detain covered persons” until 

“the end of the hostilities authorized by the [AUMF].” Id.

§ 1021(a), (c)(1), 125 Stat. at 1562. The National Defense 

Authorization Act defines “covered persons” to include those 

“who planned, authorized, committed, or aided the terrorist 

attacks that occurred on September 11, 2001, or harbored those 

responsible for those attacks,” or who were “part of or 

substantially supported al-Qaeda, the Taliban, or associated 

forces that are engaged in hostilities against the United States 

or its coalition partners[.]” Id. § 1021(b), 125 Stat. at 1562.
4

B

Ali is an Algerian citizen. He was captured by United 

States and Pakistani forces in March 2002 during a raid of a 

four-bedroom guesthouse in Faisalabad, Pakistan. Ali v. 

Obama (Ali II), 736 F.3d 542, 543 (D.C. Cir. 2013). Ali kept

troubling company there. At the time of the raid, he was living

with the al Qaeda facilitator Abu Zubaydah and several of 

Zubaydah’s compatriots, including “four former trainers from 

a terrorist training camp in Afghanistan, multiple experts in 

explosives, and an individual who had fought alongside the 

Taliban.” Id. The guesthouse also contained “a device 

typically used to assemble remote bombing devices” and 

“documents bearing the designation ‘al Qaeda[.]’” Id. 

In June 2002, the United States transferred Ali to the Naval 

Base at Guantanamo Bay. Ali II, 736 F.3d at 543. A few years 

later, Ali filed a petition for habeas corpus in the United States 

District Court for the District of Columbia challenging his 

designation and detention as an enemy combatant. Ali v. 

Obama (Ali I), 741 F. Supp. 2d 19, 21 (D.D.C. 2011). The 

district court denied the petition. Id. at 27. Applying a 

preponderance of the evidence standard, the district court 

concluded that Ali was a member of Zubaydah’s forces, which 

the district court found was an “associated force” of al Qaeda

and the Taliban within the meaning of the AUMF. Id. at 25, 

27; see also Pub. L. No. 107-40, § 2(a), 115 Stat. at 224. The 

district court further found that Ali’s capture in the same 

guesthouse as Zubaydah, combined with evidence that Ali was

taking English lessons through one of Zubaydah’s training 

programs while there, was enough to establish his membership

in that force. Ali I, 741 F. Supp. 2d at 25–26. The court also 

credited government evidence “placing [Ali] with Abu 

Zubaydah’s force in various places in Afghanistan prior to his 

stay at the Faisalabad guesthouse.” Id. at 26. And Ali’s 
5

membership in Zubaydah’s force was “corroborated further by 

[his] own admission—when he was first interrogated—that he 

had gone to Afghanistan to fight in the jihad against the U.S. 

and its Allied forces.” Id.

This court affirmed, concluding that Ali’s presence in the 

“terrorist guesthouse” alongside other terrorist combatants 

strongly supported the district court’s finding that he was an 

enemy combatant. Ali II, 736 F.3d at 545–546. Among other 

things, Ali’s presence in the company of senior leaders of 

Zubaydah’s force, the duration of Ali’s stay, his participation 

in English lessons while there, and the presence of documents 

and equipment associated with terrorist activity together 

provided weighty and substantial grounds for finding Ali to be 

an enemy combatant. Id. at 546.

On January 11, 2018, Ali joined several other Guantanamo 

detainees in filing renewed habeas petitions arguing that their 

continued detention violated the Due Process Clause and the 

AUMF. The district court subsequently denied Ali’s habeas 

petition.

First, the district court held that detainees at Guantanamo 

Bay are not entitled to the protections of the Due Process 

Clause. The court also held that, even assuming the Due 

Process Clause applied, Ali’s rights were not violated. The 

court reasoned that circuit precedent foreclosed Ali’s 

procedural arguments that (1) the government must show by 

clear and convincing evidence that he remains a threat to 

national security, (2) government evidence is not entitled to a 

presumption of regularity, and (3) hearsay evidence should be 

inadmissible in AUMF detention proceedings. The court also 

rejected Ali’s substantive due process argument that his 

continuing detention no longer served its ostensible purpose. 
6

Second, the district court rejected Ali’s argument that his 

continuing detention exceeds the scope of the AUMF. The 

district court read the AUMF to authorize the detention of 

enemy combatants until the hostilities authorized by that 

statute cease and found that hostilities against al Qaeda and the 

Taliban were ongoing. 

Ali appealed, seeking initial consideration en banc. This 

court denied initial en banc review. Ali v. Trump, No. 18-5297, 

2019 WL 850757 (D.C. Cir. Feb. 22, 2019).

II

We review the district court’s factual determinations for 

clear error and its ultimate decision to grant or deny habeas

relief de novo. Latif v. Obama, 677 F.3d 1175, 1178 (D.C. Cir. 

2012); see also Barhoumi v. Obama, 609 F.3d 416, 423 (D.C. 

Cir. 2010). 

A

The district court’s decision that the Due Process Clause 

is categorically inapplicable to detainees at Guantanamo Bay 

was misplaced. See Qassim v. Trump, 927 F.3d 522, 524 (D.C. 

Cir. 2019). The Supreme Court’s decision in Boumediene v. 

Bush, 553 U.S. 723 (2008), unequivocally held that 

Guantanamo Bay detainees must be afforded those procedures 

necessary to ensure “meaningful review” of the lawfulness of 

their detention, id. at 783. See Qassim, 927 F.3d at 524. In 

particular, detainees are constitutionally entitled to “those 

‘procedural protections’” that are “necessary (i) to ‘rebut the 

factual basis for the Government’s assertion that [the detainee] 

is an enemy combatant’; (ii) to give the prisoner ‘a meaningful 

opportunity to demonstrate that he is being held pursuant to the 

erroneous application or interpretation of relevant law’; and 
7

(iii) to create a record that will support ‘meaningful review’” 

by federal courts. Id. at 528–529 (formatting modified) 

(quoting Boumediene, 553 U.S. at 779, 783).1

In identifying those constitutional protections for 

detainees, the Supreme Court pointed both to the 

Constitution’s guarantee of habeas corpus, U.S. CONST. art. I, 

§ 9, cl. 2 (commonly known as the Suspension Clause), and the 

Due Process Clause. Boumediene, 553 U.S. at 771–792; see 

Qassim, 927 F.3d at 529.

Circuit precedent has not yet comprehensively resolved

which “constitutional procedural protections apply to the 

adjudication of detainee habeas corpus petitions,” and whether 

those “rights are housed” in the Due Process Clause, the 

Suspension Clause, or both. Qassim, 927 F.3d at 530. 

In this case, Ali has chosen not to ground any of his claims 

for procedural protections in the Suspension Clause. So that 

issue is not before us. Instead, Ali’s main argument puts all of 

his eggs in one constitutional basket. He argues that the Due 

Process Clause’s procedural and substantive requirements 

apply wholesale, without any qualifications, to habeas corpus 

petitions filed by all Guantanamo detainees. Ali Br. 12 (“The 

Due Process Clause [a]pplies at Guantánamo[.]”); id. 13–14

(“After Boumediene, it inescapably follows that the Due 

Process Clause also applies—in the same measure as the 

Suspension Clause—at Guantánamo to constrain certain 

executive branch actions.”); see also Ali Reply 12–13; Oral 

1 This opinion’s references to detainees at Guantanamo Bay and the 

constitutional protections they enjoy speaks only to foreign national 

detainees, who compose the Naval Base’s current population in 

detention. We do not address what protections would apply to

United States citizens or those with similar legal ties to the United 

States were they to be detained at Guantanamo Bay. 
8

Arg. Tr. 4:6–12, 7:11–15, 13:5–7 (in seeking new procedural 

protections, counsel is “absolutely” “asking for a broader rule” 

than one that just resolves Ali’s case); id. 20:2–21:6.

2

 

That argument sweeps too far. 

For starters, the argument is in substantial tension with the 

Supreme Court’s more calibrated approach in Boumediene, 

which tied the constitutional protections afforded to 

Guantanamo Bay detainees’ habeas corpus proceedings to their 

role in vindicating the constitutional right to the Great Writ and 

the judicial role in checking Executive Branch overreach. See 

553 U.S. at 798 (“[P]etitioners may invoke the fundamental 

procedural protections of habeas corpus.”); id. at 779–783, 

793–795. The court stressed that the scope of constitutional 

protections must “turn on objective factors and practical 

concerns, not formalism.” Id. at 764. Yet Ali argues for only 

a formal and unyielding line.

Ali’s argument that the Due Process Clause’s substantive 

protections apply with full force to all detainees at Guantanamo 

Bay also runs crosswise with this court’s decision in Kiyemba 

v. Obama, which held that, for Guantanamo Bay detainees, the 

claimed substantive due process right to release into the United 

States had no purchase because a noncitizen who seeks 

admission to the United States generally “may not do so under 

any claim of right.” 555 F.3d 1022, 1027 (D.C. Cir. 2009), 

2 Ali at one point briefly states that “at least some of the protections 

of the Due Process Clause must also reach Guantánamo because 

there are no practical barriers that would apply[.]” Ali Br. 13. He

does not develop this argument, though, and we will not make new 

constitutional arguments for counsel. See Government of Manitoba 

v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (“A party forfeits 

an argument by mentioning it only in the most skeletal way[.]”) 

(formatting modified).
9

vacated and remanded, 559 U.S. 131, reinstated in relevant 

part, 605 F.3d 1046, 1047–1048 (D.C. Cir. 2010). That case 

refutes Ali’s claim that the substantive protections of the Due 

Process Clause apply across the board to all Guantanamo Bay 

detainees. And Ali has abstained from pressing any more 

gradated or as-applied Due Process Clause argument here. 

In sum, Boumediene and Qassim teach that the 

determination of what constitutional procedural protections 

govern the adjudication of habeas corpus petitions from 

Guantanamo detaineesshould be analyzed on an issue-by-issue 

basis, applying Boumediene’s functional approach. The type 

of sweeping and global application asserted by Ali fails to 

account for the unique context and balancing of interests that 

Boumediene requires when reviewing the detention of foreign 

nationals captured during ongoing hostilities.

B

To the extent that Ali focuses on particular categories of 

constitutional objections, the Due Process Clause is of no help 

to him. See Association of American R.Rs. v. United States 

Dep’t of Transp., 896 F.3d 539, 544 (D.C. Cir. 2018) 

(“[C]ourts must choose the narrowest constitutional path to 

decision.”).

1

Ali argues that his continued detention for more than 

seventeen years violates substantive due process. While Ali’s 

detention has been quite lengthy, under binding circuit 

precedent the Due Process Clause’s substantive protections 

would offer him no help.
10

Among other things, the substantive component of the Due 

Process Clause “bars certain arbitrary, wrongful government 

actions regardless of the fairness of the procedures used to 

implement them.” Foucha v. Louisiana, 504 U.S. 71, 80 

(1992) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)). 

But only government action that is “so egregious, so 

outrageous, that it may fairly be said to shock the contemporary 

conscience” qualifies as arbitrary for the purposes of 

substantive due process. Estate of Phillips v. District of 

Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006) (quoting County 

of Sacramento v. Lewis, 523 U.S. 833, 848 n.8 (1998)).

Ali contends that his ongoing detention violates 

substantive due process in two ways. First, he argues that his 

continued detention is driven by a new blanket and punitive 

policy against releasing detainees and, as such, is “untethered 

to any ongoing, individualized purpose to detain him.” Ali Br. 

20–21. Second, Ali argues that his “[p]erpetual detention” 

based on an “eighteen-day stay in a guest-house” shocks the 

conscience. Ali Br. 23. Neither argument succeeds.

First, Ali’s detention is long because the armed conflict 

out of which it arises has been long, continuing to the present 

day. See Letter to Congressional Leaders on the Global 

Deployment of United States Combat-Equipped Armed 

Forces, 2018 DAILY COMP. PRES. DOC. NO. 00416, at 2 (June 

8, 2018) (“The United States remains in an armed conflict, 

including in Afghanistan and against the Taliban, and active 

hostilities remain ongoing.”). Given that, Ali’s detention still 

serves the established law-of-war purpose of “prevent[ing] 

captured individuals from returning to the field of battle and 

taking up arms once again.” See Hamdi, 542 U.S. at 518, 521

(plurality opinion) (“[W]e understand Congress’ grant of 

authority for the use of ‘necessary and appropriate force’ to 

include the authority to detain for the duration of the relevant 
11

conflict, and our understanding is based on longstanding lawof-war principles.”); see also Al-Alwi v. Trump, 901 F.3d 294,

297–298 (D.C. Cir. 2018). 

Ali does not dispute that hostilities authorized by the 

AUMF are ongoing. Oral Arg. Tr. 22:19–23. And although

the AUMF was initially enacted in 2001, Congress reaffirmed 

the government’s interest in detaining enemy combatants by 

passing the National Defense Authorization Act in 2011. Pub. 

L. No. 112-81, § 1021(a), (c)(1), 125 Stat. at 1562 (affirming 

“that the authority of the President to use all necessary and 

appropriate force pursuant to the [AUMF] includes the 

authority for the Armed Forces of the United States to detain 

covered persons” until the end of the hostilities). Whatever 

subjective motivations Ali might impute to the government, its

original and legitimate purpose for detaining him—recognized 

by the law of war and Supreme Court precedent—persists. 

On top of that, Ali has little ground to stand on in claiming 

that time has dissipated the threat he poses. The Guantanamo 

Bay Periodic Review Board has specifically reviewed Ali’s 

detention no less than eight times to determine whether his 

continued detention remains necessary to protect against a 

significant security threat to the United States. See generally 

Exec. Order No. 13,567, 76 Fed. Reg. 13,277 (March 7, 2011)

(establishing the Periodic Review Board). And each time the 

Periodic Review Board has recommended continued detention

because of the threat his release would pose.

3

 

3

See Periodic Review Board, Unclassified Summary of Final 

Determination for ISN 685 (July 6, 2016), https://www.prs.mil

/Portals/60/Documents/ISN685/20160706_U_ISN_685_FINAL_D

ETERMINATION.pdf (initial full review); Periodic Review Board, 

File Review—Said bin Brahim bin Umran Bakush (AG-685) (Feb. 

3, 2017), https://www.prs.mil/Portals/60/Documents/ISN685

/FileReview/170104_U_ISN685_FINAL_DETERMINATION_PU
12

In its most recent full review of Ali’s detention, the 

Periodic Review Board “determined that continued law of war 

detention of the detainee remains necessary to protect against 

a continuing significant threat to the security of the United 

States.” See Periodic Review Board, Unclassified Summary of 

Final Determination for ISN 685 (Feb. 28, 2019),

https://www.prs.mil/Portals/60/Documents/ISN685/Subseque

ntReview1/20190228_U_ISN_685_FINAL_DETERMINATI

ON_PUBLIC.pdf (second full review). In reaching this 

conclusion, the Board “considered the detainee’s elevated 

BLIC_V1.pdf (first file review); Periodic Review Board, File 

Review—Said bin Brahim bin Umran Bakush (AG-685) (Aug. 2, 

2017), https://www.prs.mil/Portals/60/Documents/ISN685

/FileReview2/20170802_U_ISN_685_FINAL_DETERMINATION

_MFR_PUBLIC.pdf (second file review); Periodic Review Board, 

File Review—Said bin Brahim bin Umran Bakush (AG-685)

(March. 18, 2018), https://www.prs.mil/Portals/60/Documents

/ISN685/FileReview3/20180216_U_ISN_685_FINAL_DETERMI

NATION_MFR_PUBLIC.pdf (third file review); Periodic Review 

Board, File Review—Said bin Brahim bin Umran Bakush (AG-685)

(Aug. 13, 2018), https://www.prs.mil/Portals/60/Documents

/ISN685/FileReview4/20180717_U_FOUO_ISN685_MFR_PRB_

U_PR.pdf (fourth file review); Periodic Review Board, Unclassified 

Summary of Final Determination for ISN 685 (Feb. 28, 2019),

https://www.prs.mil/Portals/60/Documents/ISN685/SubsequentRev

iew1/20190228_U_ISN_685_FINAL_DETERMINATION_PUBLI

C.pdf (second full review); Periodic Review Board, File Review—

Said bin Brahim bin Umran Bakush (AG-685) (Sept. 13, 2019), 

https://www.prs.mil/Portals/60/Documents/ISN685/FileReview5/20

190719_U_ISN_685_UNCLASSIFIED_MFR.pdf (fifth file 

review); Periodic Review Board, File Review—Said bin Brahim bin 

Umran Bakush (AG-685) (Feb. 20, 2020), 

https://www.prs.mil/Portals/60/Documents/ISN685/FileReview6/20

0116_U_FOUO_ISN685_MFR_re_Sixth_File_Review_UPR.pdf

(sixth file review). 
13

threat profile as evidenced by his prior roles in Afghanistan and 

prior association[,] [t]he Board’s inability to assess the 

detainee’s current threat level due to the detainee’s refusal to 

participate in meetings with his representative, the lack of 

submission of any new materials by the detainee and the 

detainee’s decision not to attend the hearing.” Id. 

And in its most recent review of Ali’s case file in January 

2020, the Periodic Review Board determined “by consensus” 

that “no significant question [was] raised as to whether [Ali’s] 

continued detention [was] warranted.” Periodic Review 

Board, File Review—Said bin Brahim bin Umran Bakush 

(AG-685) (Feb. 20, 2020), https://www.prs.mil/Portals/60

/Documents/ISN685/FileReview6/200116_U_FOUO_ISN685

_MFR_re_Sixth_File_Review_UPR.pdf (sixth file review).4

Second, the fact that hostilities have endured for a long 

time, without more, does not render the government’s 

continued detention of Ali a shock to the conscience, in light 

of the dangers the Periodic Review Board has found to be 

associated with his release. 

Ali attempts to downplay his connection to Zubaydah’s 

force by characterizing it as an “eighteen-day stay in a guesthouse.” Ali Br. 23. But that is a long time to be in the company 

of senior terrorist leaders. Nor does Ali dispute that he was 

actively studying in their English program while there,

acquiring a skill that would have equipped him to harm the 

United States. See Ali II, 736 F.3d at 548 (“[T]he record 

included evidence that leaders of Abu Zubaydah’s force 

4 Because Ali has repeatedly been found to be unsuitable for 

relief, this case does not present the question of what protections 

might apply to a detainee whom the Board has determined to be 

suitable for release, yet who continues to be detained. 
14

provided English language training to help prepare their 

members to better infiltrate English-speaking areas and launch 

successful terrorist attacks.”). Finally, Ali has provided no 

sound basis for concluding that either his ability or his desire 

to rejoin opposing forces has diminished.

2

Ali also argues that, as a matter of procedural due process, 

the extended duration of the government’s detention of 

detainees at Guantanamo Bay requires the government to 

show, by clear and convincing evidence, that continued 

detention is necessary to avoid specific, articulable dangers. 

He further contends that the Due Process Clause precludes the 

use of hearsay evidence and bars the presumption of regularity 

with respect to the government’s evidence. Circuit precedent

forecloses each of those arguments. 

To begin with, we have repeatedly held that, to uphold an

order of detention, the individual’s status as an enemy

combatant need only be proved by a preponderance of the 

evidence. See, e.g., Uthman v. Obama, 637 F.3d 400, 403 n.3 

(D.C. Cir. 2011) (“Our cases have stated that the 

preponderance of the evidence standard is constitutionally 

sufficient and have left open whether a lower standard might 

be adequate to satisfy the Constitution’s requirements for 

wartime detention.”); Awad v. Obama, 608 F.3d 1, 11 (D.C. 

Cir. 2010) (“Lest there be any further misunderstandings, let us 

be absolutely clear. A preponderance of the evidence standard 

satisfies constitutional requirements in considering a habeas 

petition from a detainee held pursuant to the AUMF.”); see also 

Al-Bihani, 590 F.3d at 878. 

 
15

The same holdstrue for the use of hearsay evidence during 

habeas corpus and other detention proceedings. See Al-Bihani, 

590 F.3d at 879. 

As for the presumption of regularity, it is not at all clear 

that the presumption has even been used in Ali’s case. See 

Ali I, 741 F. Supp. 2d at 25–27 (setting forth the district court’s 

factual findings and its conclusion that Ali was a member of 

Zubaydah’s force); see also Barhoumi, 609 F.3d at 423 (“We 

review the district court’s findings of fact for clear error[.]”). 

In any event, this court’s cases have also expressly granted a 

presumption of regularity to certain government evidence. See 

Latif v. Obama, 666 F.3d 746, 755 (D.C. Cir. 2011).

The bottom line is that we are not at liberty to rewrite 

circuit precedent in the way Ali desires. See LaShawn A. v. 

Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc) (“One 

three-judge panel * * * does not have the authority to overrule 

another three-judge panel of the court.”).

Ali responds that, despite these precedents, a new 

balancing under Mathews v. Eldridge, 424 U.S. 319 (1976), is 

necessary because, as his detention drags on, the government’s 

asserted security interest in his continued detention grows 

weaker while his liberty interest grows stronger. See Rasul v. 

Bush, 542 U.S. 466, 488 (2004) (Kennedy, J., concurring) 

(“[A]s the period of detention stretches from months to years, 

the case for continued detention to meet military exigencies 

becomes weaker.”). In other words, according to Ali, a new 

balancing analysis is in order because any assumption that 

wartime detention will be temporary “has long since 

dissipated” given the prolonged hostilities. Ali Br. 25. 

That argument does not extract Ali from the force of 

binding circuit precedent. In developing the procedures
16

applicable to AUMF challenges, this court contemplated that

detentions could last for the duration of hostilities. See 

Uthman, 637 F.3d at 402 (“The AUMF, among other things, 

authorizes the Executive Branch to detain for the duration of 

hostilities those individuals who are part of al Qaeda or the 

Taliban.”); Awad, 608 F.3d at 11 (explaining that the 

government’s “authority to detain an enemy combatant is not 

dependent on whether an individual would pose a threat to the 

United States or its allies if released but rather upon the 

continuation of hostilities”). The length for which hostilities 

might continue was uncertain then and continues to be 

uncertain now. And this court’s ruling on Ali’s initial habeas 

petition expressly recognized that Ali may be detained for an 

extended, and uncertain, period of time: 

We are of course aware that this is a long war with no 

end in sight. We understand Ali’s concern that his 

membership in Zubaydah’s force, even if it justified 

detention as an enemy combatant for some period of 

time, does not justify a “lifetime detention.” But the 

2001 AUMF does not have a time limit, and the 

Constitution allows detention of enemy combatants 

for the duration of hostilities.

Ali II, 736 F.3d at 552 (emphasis added) (citation omitted).

Indeed, Ali agrees that, if the hostilities covered by the 

AUMF were a more traditional type of war that continued for 

this same length of time, there would be no substantive due 

process objection to continued detention. Oral Arg. Tr. 21:15–

19. Yet Ali cites no authority suggesting that the form of 

hostilities that enemy combatants undertake changes the law 

of war’s authorization of their continued detention, especially 

when, as here, the government has found that the threat Ali 

poses continues. 
17

C

Finally, Ali argues that this court may avoid the 

substantive and procedural due process issues altogether by 

applying the canon of constitutional avoidance and construing 

the AUMF to limit the duration of detentions. See, e.g.,

Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (“[I]t is a cardinal 

principle of statutory interpretation * * * that when an Act of 

Congress raises a serious doubt as to its constitutionality,” 

courts must “ascertain whether a construction of the statute is 

fairly possible by which the question may be avoided.”)

(formatting modified). But because the specific constitutional 

claims that Ali presses have already been considered and 

rejected by circuit precedent, there are no constitutional rulings 

to be avoided. 

III

For all of those reasons, the district court’s denial of Ali’s 

petition for a writ of habeas corpus is affirmed.

So ordered.
RANDOLPH, Senior Circuit Judge: I concur only in the

judgment. I do so because Qassim v. Trump, 927 F.3d 522 (D.C.

Cir. 2019), on which the majority relies, cannot be reconciled

with the law of this circuit or with the Supreme Court’s

interpretation of the Constitution.

Qassim announced that “Circuit precedent leaves open

and unresolved” the question whether detainees at the 

Guantanamo Bay Naval Station in Cuba are entitled to the 

“procedural” due process protections of the Fifth Amendment

even though circuit precedent foreclosed “substantive” due

process claims. 927 F.3d at 530. That depiction of circuit

precedent was not accurate and, more important, it contradicted

decisions of the Supreme Court. Rather than “open and

unresolved,” it is “well established” that the protections of the

Fifth Amendment’s Due Process Clause “do not extend to aliens

outside the territorial boundaries” of the United States,including

those held at Guantanamo Bay. Zadvydas v. Davis, 533 U.S.

678, 693 (2001). 

To explain my position I begin where Qassim and

today’s majority opinion should have begun – with the Supreme

Court’s interpretation of the Due Process Clause. I follow a

well-marked path. See Qassim v. Trump, 938 F.3d 375, 376

(D.C. Cir. 2019) (Henderson and Rao, JJ. dissenting from denial

of en banc review); see also Hernandez v. United States, 785

F.3d 117, 125-28 (5th Cir. 2015) (Jones, J. concurring). 

1

The Fifth Circuit’s en banc decision in Hernandez was 1

vacated on other grounds by the Supreme Court. See Hernandez v.

Mesa, 137 S.Ct. 2003. On remand, the Fifth Circuit (en banc) largely

reiterated the relevant portions of Judge Jones’s 2015 concurring

opinion. See, e.g., 885 F.3d 811, 817 (5th Cir. 2018) (noting that “no

federal circuit has extended the holding of Boumediene [v. Bush, 553

U.S. 723 (2008)] . . . to other constitutional provisions). This most

recent Hernandez Fifth Circuit decision was affirmed by the Supreme

Court. See Hernandez v. Mesa, 140 S.Ct. 735 (2020). 
2

1. Johnson v. Eisentrager, 339 U.S. 763 (1950)

The Supreme Court’s seminal decision in Eisentrager,

rendered in the twilight of World War II, interpreted the Due

Process Clause of the Fifth Amendment to the Constitution. That

well known Clause states: “nor shall any person . . . be deprived

of life, liberty, or property, without due process of law.” U.S.

Const. amend. V (emphasis added). 

The lower court in Eisentrager – which happened to be

the D.C. Circuit – ruled that “any person” in the Due Process

Clause included “an enemy alien deprived of his liberty” by the

United States “anywhere in the world.” 339 U.S. at 767, 782.2

The Supreme Court in Eisentrager firmly rejected that

interpretation. Eisentrager’s holding was clear, it was precise,

and it was contrary to Qassim: a nonresident alien enemy

detained by the United States outside of our sovereign territory

was, the Court decided, not “any person” within the meaning of

the Fifth Amendment and therefore not entitled to the

protections of the Due Process Clause. Id. at 782-85.

The Qassim court paid no attention to the Supreme

Court’s interpretation of “any person” in the Fifth Amendment. 

There is no good explanation for this omission. The Supreme

Court’s ruling made it irrelevant whether the alien’s claim was

one of “procedural” due process or “substantive” due process.

Under Eisentrager, it was the status of the individual as an alien

enemy held outside the United States, not the nature of his

claims, that barred application of the Due Process Clause. As I

will discuss in a moment, when the Supreme Court years later

See Eisentrager v. Forrestal, 174 F. 2d 961, 963-65 (D.C. 2

Cir. 1949).
3

considered Eisentrager again, it put the case on precisely that

footing. 

In light of Eisentrager, whether an alien enemy held at

Guantanamo Bay may invoke the Due Process Clause is not – 3

to use Qassim’s words – “open and unresolved.” Even so, the

Qassim panel insisted that its opinion “explains in detail its

consistency with” Eisentrager. It did nothing of the sort. 4

Qassim relegated Eisentrager to a footnote. The

footnote gave the case citation and appended a brief

parenthetical. The parenthetical was misleading. It described

Eisentrager as having decided “that enemy aliens engaged in

Guantanamo is not part of the sovereign territory of the 3

United States. The Detainee Treatment Act of 2005, Pub. L. No.

109–148, 119 Stat. 2680 (2005), so provides: “‘United States,’ when

used in a geographic sense . . . does not include the United States

Naval Station, Guantanamo Bay, Cuba.” Also, Guantanamo is not part

of the United States under the Immigration and Nationality Act, 8

U.S.C. § 1101(a)(38).

Even if there were some doubt about Guantanamo Bay’s

status, “[w]ho is the sovereign, de jure or de facto, of a territory is not

a judicial, but is a political question, the determination of which by the

legislative and executive departments of any government conclusively

binds the judges.” Jones v. United States, 137 U.S. 202, 212 (1890),

quoted in Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918)

and Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S.Ct. 2076, 2091

(2015). Thus, “determination of [American]sovereignty over an area

is for the legislative and executive departments.” Vermilya-Brown Co.

v. Connell, 335 U.S. 377, 380 (1948).

Qassim v. Trump, 938 F.3d 375, 376 (D.C. Cir. 2019)

4

(Millett, Pillard, and Edwards, JJ., concurring in denial of en banc

review).
4

hostile action against the United States have no immunity from

military trial.” 927 F.3d at 529 n.5. There is not a word about

the Supreme Court’s interpretation of “any person” in the Due

Process Clause. In today’s opinion, the majority does not even

cite Eisentrager, let alone explain how it can possibly be

squared with Qassim.

To sum up, Eisentrager’s holding gives the lie to

Qassim’s assertion that it was an open question whether

Guantanamo detainees were entitled to due process, procedural

or otherwise.

5

Neither the Qassim opinion nor the majority opinion in

this case can be rationalized on the basis that Boumediene v.

Bush, 553 U.S. 723 (2008), rendered Eisentrager’s Fifth

Amendment holding a dead letter. First of all, before Qassim we

had already decided that Boumediene did not “disturb existing

law governing the extraterritorial reach of any constitutional

provisions, other than the Suspension Clause.” Rasul v. Myers,

563 F.3d 527, 529 (D.C. Cir. 2009) (per curiam). That is,

Boumediene was “‘explicitly confined’” to the Suspension

Clause and did not disturb “Eisentrager and its progeny.” Id. at

The executive branch has, since at least 2009, articulated the 5

procedures to be used for the review and disposition of Guantanamo

detainees. These Executive Orders appear to recognize that the Fifth

Amendment does not apply to the non-resident aliens held at the naval

station. See, e.g., Exec. Order 13492, 74 Fed. Reg. 4897-99 (no

mention of constitutional due process, but noting that individuals held

at Guantanamo “have the constitutional privilege of the writ of habeas

corpus”); Exec. Order 13567, 76 Fed. Reg. 13277 (establishing, “as

a discretionary matter, a process to review on a periodic basis the

executive branch’s continued, discretionary exercise of existing

detention authority in individual cases”) (emphasis added). 
5

529. See also United States v. Bahlul, 840 F.3d 757, 796 (D.C.

Cir. 2016) (Millett, J.,concurring) (quoting Rasul).

6

Perhaps the Qassim court believed that Boumediene

eroded Eisentrager’s precedential value because Boumediene

stated that “there are critical differences between Landsberg

Prison, circa 1950, and the United States Naval Station at

Guantanamo Bay in 2008.” 553 U.S. at 768. Boumediene added

that Guantanamo Bay “is no transient possession” and is in

“every practical sense” “within the constant jurisdiction of the

United States.” 553 U.S. at 768-69. 

But Qassim made no attempt to distinguish Eisentrager

on this basis. More, Guantanamo Bay is not within the

sovereign territory of the United States, and its legal status is not

for the courts to decide. See note 5, supra. More still,

immediately after declaring that the naval station “is no transient

possession,” Boumediene once again made clear that the scope

of its opinion concerned only the Suspension Clause. See 553

U.S. at 769 (acknowledging that “there are costs to holding the

Suspension Clause applicable in a case of military detention

abroad” but distinguishing Eisentrager nonetheless). 

Guantanamo’s status thus cannot be used as a basis for

expanding, sua sponte, the reach of the Fifth Amendment. 

Second, even if Boumediene somehow put Eisentrager

into doubt, the Qassim court failed to heed the Supreme Court’s

warning that its “decisions remain binding precedent until we

see fit to reconsider them, regardless of whether subsequent

cases have raised doubts about their continuing vitality.” Hohn

The Ninth Circuit agrees. See Thuraissigiam v. U.S. Dep’t 6

of Homeland Security, 917 F.3d 1097, 1111-12 (9th Cir. 2019)

(“Boumediene itself clearly recognized the distinction between the

Fifth Amendment’s due process rights and the Suspension Clause”).
6

v. United States, 524 U.S. 236, 252–53 (1998). When a

Supreme Court decision “has direct application in a case, yet

appears to rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the case which

directly controls, leaving to th[e Supreme] Court the prerogative

of overruling its own decisions.” Rodriguez de Quijas v.

Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989); see also

id. at 486 (Stevens, J., dissenting); Agostini v. Felton, 521 U.S.

203, 237 (1997); see also id. at 258 (Ginsburg, J., dissenting);

State Oil Co. v. Khan, 522 U.S. 3, 9, 20 (1997); Thurston Motor

Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533 (1983) (per

curiam).7

2. United States v. Verdugo-Urquidez, 494 U.S. 259

(1990)

The ultimate issue in Verdugo-Urquidez was “whether

the Fourth Amendment applies to the search and seizure by the

United States of property that is owned by a nonresident alien

and located in a foreign country.” 494 U.S. at 261. Qassim was

not directly concerned with the Fourth Amendment and neither

Qassim and today’s majority opinion quote Boumediene’s 7

statement that the Suspension Clause requires that a record be made

to allow for “meaningful review.” See Qassim, 924 F.3d at 524

(quoting Boumediene, 553 U.S. at 783). This phrase did not confer

upon the lower federal courts a free-wheeling authority to disregard

Supreme Court precedent. The Court was not overruling any of its

cases outside the Suspension Clause. As then-Judge Kavanaugh put

it for our court, “[m]eaningful review in this context requires that a

court have ‘some authority to assess the sufficiency of the

Government’s evidence against the detainee’ and to ‘admit and

consider relevant exculpatory evidence’ that may be added to the

record by petitioners during review.” Al-Bihani v. Obama, 590 F.3d

866, 875 (D.C. Cir. 2010), quoting Boumediene, 553 U.S. at 786. 
7

are we in this case. But Qassim should have been concerned

with the reasoning the Supreme Court used to decide that the

Fourth Amendment did not apply.

Verdugo-Urquidez discussed Eisentrager not in a

parenthetical in a footnote but in the text of the opinion. 

Eisentrager, the Supreme Court wrote, “rejected the claim that

aliens are entitled to Fifth Amendment rights outside the

sovereign territory of the United States.” 494 U.S. at 269. To

the Supreme Court, “our rejection of the extraterritorial

application of the Fifth Amendment was emphatic,” 494 U.S. at

269. After quoting the Eisentrager opinion, the Verdugo- 8

Urquidez Court wrote this: “If such is true of the Fifth

Amendment, which speaks in the relatively universal term of

‘person,’ it would seem even more true with respect to the

Fourth Amendment, which applies to ‘the people.’” Id. 

This portion of the Verdugo-Urquidez opinion was not

dicta. It was instead an intermediate step in the Court’s

reasoning. There was nothing extraneous about the Court’s

comparing the Fourth Amendment with Eisentrager’s

interpretation of the Fifth Amendment. This is why the Court in

a later case treated Verdugo-Urquidez as having “established”

that Fifth Amendment protections “are unavailable to aliens

outside our geographic borders.” Zadvydas v. Davis, 533 U.S.

The Court quoted this language from Eisentrager: “Such 8

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. Cf. Downes v. Bidwell, 182 U.S.

244. None of the learned commentators on our Constitution has ever

hinted at it. The practice of every modern government is opposed to

it.” Eisentrager, 339 U.S. at 784.
8

678, 693 (2001). Even if one were to consider the Court’s Fifth 9

Amendment discussion as dicta, which it is not, Qassim cannot 10

be harmonized with Verdugo-Urquidez. Did Qassim even try to

distinguish Verdugo-Urquidez? It did not. 

Qassim again relegated the Supreme Court’s opinion to

a footnote, giving the official case citation and attaching a

parenthetical stating: “Fourth Amendment protections do not

apply extraterritorially to a search conducted within a foreign

country of property belonging to a foreign citizen with no

voluntary connection to the United States.” 927 F.3d at 529 n.

5. And that was that. Qassim said not a word about the

Supreme Court’s analysis of the Due Process Clause or the

Court’s discussion of Eisentrager, even though both directly

impacted the issue before the Qassim court. The majority

opinion in this case follows suit.

3. Zadvydas v. Davis, 533 U.S. 678 (2001)

In Zadvydas, the Supreme Court stated that: “It is well

established that certain constitutional protections available to

persons inside the United States are unavailable to aliens outside

of our geographic borders.” 533 U.S. at 693. In support of this

See pp. 8-9 infra.

9

Harbury v, Deutch, 233 F.3d 596, 604 (D.C. Cir. 2000), 10

rev’d on other grounds sub nom. Christopher v. Harbury, 536 U.S.

403 (2002), held that even if the Fifth Amendment discussion in

Verdugo-Urquidez was “dicta,” “it is firm and considered dicta that

binds this court.” The court therefore ruled that the Due Process

Clause did not apply to “foreign nationals living abroad.” 233 F.3d at

602. As to the binding force of Verdugo-Urquidez’s analysis of the

Fifth Amendment, see also People’s Mojahedin Org. of Iran v. U.S.

Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999).
9

statement of constitutional law the Court (id.) cited two cases:

“See United States v. Verdugo-Urquidez, 494 U.S. 259, 269

(1990) (Fifth Amendment’s protections do not extend to aliens

outside the territorial boundaries); Johnson v. Eisentrager, 339

U.S. 763, 784 (1950) (same).”

How did Qassim respond to the Supreme Court’s recital

of this “well established” Fifth Amendment law? Once again

the answer is that the opinion did not respond. Instead, as it did

with Eisentrager and Verdugo-Urquidez, the Qassim court tried

to hide the ball. It reduced Zadvydas to a footnote citation with

a parenthetical reading: “addresses the immigration power to

exclude aliens from entering the United States.” Qassim, 927

F.3d at 529 n. 5. This conveyed the impression that Zadvydas

had nothing pertinent to say about the issue before the Qassim

court, which of course was not true. Once again this portion of

Zadvydas is ignored in today’s majority opinion. 

4. Precedent of the D.C. Circuit Pre-Kiyemba

Qassim’s team of attorneys candidly admitted that the

law of this circuit was against them. On behalf of their client 11

in the district court, they “entered into a stipulation with the

government disputing the allegations against him but conceding

that, under the existing legal standards which denied him due

process and the ability to see and confront the evidence against

him, he could not prevail.” Qassim v. Trump, Dkt. No. 18-5148,

Appellant’s Br. 10. On appeal, Qassim’s attorneys conceded

that circuit precedent foreclosed his sole argument “that the

While they deserve credit for their honest evaluation of 11

circuit precedent, they failed to address or even mention the most

important Supreme Court decisions – Eisentrager, Verdugo-Urquidez

and Zadvydas, opinions repeatedly cited in the decisions of our court

and in the government’s brief in Qassim. 
10

Fifth Amendment’s due process clause applies to unprivileged

enemy combatants detained at Guantanamo Bay.” Qassim v.

Trump, Dkt. No. 18-5148, Appellees’ Br. 4. 

12

Despite these concessions, the Qassim panel reached out

and decided the very issue the parties had conceded, and decided

it – obviously without any briefing – in a way that was the

opposite of what the parties had stipulated. 

The Qassim opinion devoted most of its attention to one

circuit case – Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir.

2009), vacated, 559 U.S. 131, and reinstated as amended, 605

F.3d 1046 (D.C. Cir. 2010). Kiyemba, relying on the Supreme

Court’s opinions in Eisentrager, Verdugo-Urquidez and

Zadvydas, held that “the due process clause does not apply to

aliens without property or presence in the sovereign territory of

the United States.” 555 F.3d at 1026. According to Qassim,

however, this meant only that the Guantanamo detainees had no

substantive due process rights, which left open the question

whether they had procedural due process rights. After all,

Qassim reasoned, only a substantive due process right was

involved in Kiyemba. 

That distinction is too clever by half. It once again tries 13

Qassim’s attorneys recognized that the panel of our court 12

assigned to his case could not “overrule or disregard prior panel

holdings,” but could “request[] proceedings en banc to reconsider”

circuit precedent. Qassim v. Trump, Dkt. No. 18-5148, Appellant’s

Br. 5. 

 A separate statement issued in an earlier stage of this case 13

put the substantive-procedural bee in Qassim’s bonnet. See Qassim,

927 F.3d at 528 (citing and quoting Ali v. Trump, 2019 WL 850757 at

*2 (D.C. Cir. 2019) (Tatel, J. concurring in denial of en banc review)). 
11

to divert attention from the essential points of the Supreme

Court opinionsinEisentrager,Verdugo-Urquidez and Zadvydas,

opinions on which Kiyemba and other cases from this circuit

relied. As I have explained, those Supreme Court opinions

render Qassim’ssubstantive-procedural dichotomy irrelevant as

a matter of constitutional law. The reason the Due Process

Clause did not apply in Kiyemba was not that the detainees had

raised a “substantive” due process claim. The phrase 14

“substantive due process” does not appear in the Kiyemba

opinion. The detainees were not entitled to the protection of the

Due Process Clause because the Supreme Court has decided that

aliens outside of the United States do not qualify as “any

person” within the meaning of the Fifth Amendment.

In addition to the opinions of the Supreme Court,

Kiyemba relied upon five opinions of this circuit: Pauling v.

That statement did not confront, indeed did not even mention, any of

the Supreme Court’s opinions. My colleague may perhaps be excused

because the en banc petitioner failed to mention any of those cases. 

See note 11, infra.

Even so, the statement to which I refer confirms my longstanding objection to the practice of individual judges issuing opinions

on denials of rehearing en banc. I thought then and think now that the

practice “rubs against the grain of Article III’s ban on advisory

opinions. The manner in which these en banc ‘bulletins’ are

formulated does not simulate the process of the court when it is

actually deciding a case. If recurring issues are addressed, en banc

statements may be tantamount to prejudgments,” and – as we see in

this case – often are. Independent Insurance Agents of America, Inc.

v. Clarke, 965 F. 2d 1077,1080 (D.C. Cir. 1992). 

Eisentrageritself cannot be distinguished on any such basis. 14

The habeas petitioners in Eisentrager raised procedural due process

claims. See Eisentrager v. Forrestal, 174 F.2d at 963. 
12

McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960) (per curiam);

People’s Mojahedin Organization of Iran v. U.S. Department of

State, 182 F.3d 17, 22 (D.C. Cir. 1999); Harbury, 233 F.3d at

603; 32 County Sovereignty Committee v. U.S. Department of

State, 292 F.3d 797, 799 (D.C. Cir. 2002); Jifry v. FAA, 370

F.3d 1174, 1182 (D.C. Cir. 2004). Each of these cases

supported Kiyemba’s holding that “the due process clause does

not apply to aliens without property or presence in the sovereign

territory of the United States.” 555 F.3d at 1026.

Qassim, although purporting to recite the law of our

circuit, completely neglected these cases upon which Kiyemba

relied. This omission is all the more egregious because of the

five circuit precedents, four denied procedural due process

rights to aliens without property or presence in the United States

– the very issue Qassim asserted was an open question in our

court. See People’s Mojahedin, 182 F.3d at 22, 25; Harbury,

233 F.3d at 598, 604; 32 County Sovereignty, 292 F.3d at 798;

and Jifry, 370 F.3d at 1176, 1183.

5. Precedent of the D.C. Circuit Post-Kiyemba

Qassim did cite four post-Kiyemba opinions ofthis court. 

Its treatment of those cases is of a piece with the rest of the

Qassim opinion. 

One of the four cases was Rasul v. Myers, 563 F.3d 527

(D.C. Cir. 2009). Rasul relied on the Supreme Court opinions

in Eisentrager and Verdugo-Urquidez and concluded that “the

law of this circuit also holds that the Fifth Amendment does not

extend to aliens or foreign entities without presence or property

in the United States.” 563 F.3d at 531. Rasul was a procedural

due process case. In order to fit the case into its narrative,

Qassim asserted that Rasul – and the other post-Kiyemba cases

– had each “reserved such Due Process questions,” “such” being
13

procedural due process. 927 F.3d at 530. That assertion was not

true with respect to Rasul, and it was not true of the three other

cases. Rasul did not refuse to decide whether the detainees at

Guantanamo were entitled to procedural due process. Rasul

decided that question and plainly held they were not so entitled. 

See 563 F.3d at 531. What the Qassim opinion is referring to

something quite different. It is Rasul’s statement that whether

“Boumediene has eroded the precedential force of Eisentrager

and its progeny. . . is not for us to determine; the Court has

reminded the lower federal courts that it alone retains the

authority to overrule its precedents.” 563 F.3d at 529. 

The second post-Kiyemba case is Al-Madwhani v.

Obama, 642 F.3d 1071 (D.C. Cir. 2011). Al-Madwhani held

that Guantanamo detainees could not rely on procedural due

process, stating flatly “that the detainees at Guantanamo Bay

possess no constitutional due process rights.” 642 F.3d at 1077

(citing Kiyemba) (alterations omitted). The Al-Madwhani court

then wrote this: “Even assuming Madhwani had a constitutional

right to due process and assuming the district court violated it by

relying on evidence outside the record—premises we do not

accept—such error would be “harmless beyond a reasonable

doubt . . ..” Id. (emphasis added). The Qassim opinion omitted

the highlighted language and by doing so, gave the false

impression that Al-Madhwani left open the question whether

procedural due process applied at Guantanamo. 

Qassim cited two other Guantanamo cases in support of

its claim that post-Kiyemba decisions of this court had reserved

the question whether “constitutional procedural protections”

applied to the detainees. 927 F.3d at 530. As to one of them –

Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014) – Qassim

correctly states that the opinion assumed “without deciding that

the constitutional right to be free from unwanted medical

treatment extends to nonresident aliens detained at
14

Guantanamo.” 927 F.3d at 530. The reason why this use of

Aamer is so misleading should be apparent: whether a detainee

may refuse medical treatment concerns substantive not

procedural rights. The Aamer court confirmed as much, noting

that the detainees “advance two separate substantive claims

regarding the legality of force-feeding.” 742 F.3d at 1038. 

The same objection pertains to the fourth case Qassim

cited – Kiyemba v. Obama, 561 F.3d 509, 518 n.4 (D.C. Cir.

2009) (“Kiyemba II”). As in Aamer, Kiyemba II dealt explicitly

and only with substantive due process rights. The detainees

there asserted an “interest in avoiding torture or mistreatment by

a foreign nation” to challenge the government’s decision to

transfer them from Guantanamo Bay to another country. 561

F.3d at 518. 

* * * 

“Inconsistency is the antithesis of the rule of law. For

judges, the most basic principle of jurisprudence is that ‘we must

act alike in all cases of like nature.’” LaShawn A v. Barry, 87

F.3d 1389, 1393 (D.C. Cir. 1996) (en banc). The

law-of-the-circuit doctrine implements that principle: the same

issue presented in a later case in the same court should lead to

the same result. Id. That doctrine, together with the Supreme

Court’s admonition that the lower courts must adhere to the

Court’s precedents without anticipating their overruling, were

blatantly disregarded in Qassim. “When a decision of one panel

is inconsistent with the decision of a prior panel, the norm is that

the later decision, being a violation of fixed law, cannot

prevail.” Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir.

2011). And “it is for the Supreme Court, not us, to proclaim

error in its past rulings, or their erosion by its adjudications

since.” Breakefield v. District of Columbia, 442 F.2d 1227,

1230 (D.C. Cir. 1970). For these reasons, I would affirm the
15

district court’s denial of Ali’s petition based on a

straightforward application of Eisentrager, Verdugo-Urquidez,

Zadvydas, and the litany of circuit cases since Eisentrager

confirming that the Fifth Amendment does not apply to aliens

without property or presence in the United States.