# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 11, 2019 Decided May 15, 2020

No. 18

- 5297

A BDUL R AZAK A LI , D ETAINEE , A PPELLANT

v.

D ONALD J. T RUMP , P RESIDENT OF THE U NITED S TATES , ET AL ., A PPELLEES

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 Du r

kin 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 , Dep uty Assistant Attorney General, and Michael Shih , Attorney. Sonia M. Carson , Attorney, entered
an appearance.

Before: R OGERS and M ILLETT , Circuit Judges , and R ANDOLPH , Senior Circuit Judge

. Opinion for the Court filed by Circuit Judge M ILLETT

. Opinion concurring in the judgment filed by Senior Circuit Judge R ANDOLPH

.

M ILLETT , Circuit Judge : The United States has detained

a ppellant Abdul Razak Ali, a n Algerian national , at the Guantanamo Bay Naval Base in Cuba since June 2002

. In this appeal, Ali asks th e 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. Th o se 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 question s in this circuit. So too does the question of what procedural protections the Suspension Clause requires. But Ali has eschewed any such calibrated or as

applied constitutional argument s in this case. For t hose 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)

. Th at 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 A l Qaeda or the Taliban[.]” Al

- Madhwani v. Obama , 642 F.3d 1071, 1073

– 1074 (D.C. Cir. 2011) (quoting Al

- Bihani v. Obama , 59 0 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 (20 1 1). Th at A ct “ 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 b y 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 N aval B ase 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 detenti on 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

cre dited g overnment 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’s5 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 c ourt affirmed, concluding that Ali’s presence in the “terrorist guesthouse” alongside other terrorist c ombatants 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 severa l other Guantanamo detainees in filing renewed habeas petition s 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 c ircuit precedent foreclo sed 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 inad missible in AUMF detention proceedings

. The court also rejected Ali’s substantive due process argument that his continuing detention n o longer served it s 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 Taliba n were ongoing

.

Ali appealed, seeking initial consideration en banc. This

c ourt denied initial en banc review

. Ali v. Trump , No. 18

- 5297, 2019 WL 850757 (D.C. Cir. Feb. 22, 2019).

I I

W e review the district court ’ s factual determinations for clear err or and its ultimate decision to grant or den y habeas relief de novo

. Latif v. Obama , 677 F.3d 1175, 1178 (D.C. Cir. 201 2 ) ; 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). T he Supreme Court’s decision in Boumediene v. Bush , 553 U.S. 723 (2008), unequivo cally held that Guantanamo Bay detainees must be afforded those procedures necessary to ensure “meaningful review” of the lawfulness of the ir detention, id . at 783. See Qassim , 927 F.3d at 524. In particular, detainees are constitutionally entitled to “t hose ‘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’; and7 (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

I n identifying those constitutional protections for detainees, the Supreme Court pointed both to the Constitution’s guarantee of habeas corpus, U.S. C ONST

. a rt. 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 a rgument put s all of his eggs in one constitutional basket

. He argu es that the Due Process Clause ’s procedural and substantive requirements appl y wholesale , without any qualifications, to habeas corpus petitions filed by all Guantanamo detainees. Ali Br. 12 (“The Due Process Clause [a]pplies at Guant án a mo[.]”); 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 act ions.”) ; 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 citizen s 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” “a sking for a broader rule” than one that just resolves Ali’s case) ; id. 20: 2

– 21:6

. 2

That a rgument sweep s 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 vindica ting 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 c ourt st ressed 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 protec tions appl y with full force to all detainees at Guantanamo Bay also runs crosswise with t his 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 an d 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 appl y 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 Gu antanamo detainees should 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 req uires 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 t hat 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, t he substantive component of the Due Process Clause “bar s 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 o nly 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, 84 8 n.8 (1998)).

Ali contends that his ongoing detention violates substantive due process i n two ways . First, he argues that his continued detention is driven by a new blanke t and punitive policy aga inst releasing detainees and

, as such

, is “untethered to any ongoing, individualized purpose to detain him

. ” Ali B r

. 20

– 21. Second, Ali argues that his “ [ p ] erpetual detention” based on an “eighteen

- day stay in a guest

- house” shocks the conscience. Ali B r. 23. Neither argument s ucceeds

.

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 D AILY C OMP

. P RES

. D OC

. N O

. 00416, at 2 (June 8, 2018) (“ The United States remains in an armed conflict, including in Afghanistan and against the Ta liban, and active hostilities remain ongoing. ”). Given that, Ali’s detention still

serve s 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. a t 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 relevant11
conflict, and our understanding is based on longstanding law

of

- 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 a lthough the AUMF was initially enacted in 2001, Congress re affirmed 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 ( affirm ing

“ 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 motiva tions Ali might impute to the government, its original and legitimate purpose for detaining him

— recognized by the law of war and Supreme Court precedent

— persist s

. On top of that, Ali has little ground to stand on in claiming that time has dissipated t he threat he poses. T he Guantanamo Bay Period ic Review Board has specifically reviewed Ali’s detention no less than eight times to determine whether his continued detention remain s necessary to protect against a significant security threat to the United S tates. See generally Exec. Order No. 13,567, 76 Fed. Reg. 13,277 (March 7, 2011) (establishing the Periodic Review Board)

. And e ach 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_PU12

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 Pe riodic 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 conclu sion, 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 B akush (AG

- 685) (Feb. 2 0 , 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 Period ic Review Board deter mined “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. 2 0 , 2020), https://www.prs.mil/Portals/60 /Docum ents /ISN685 /FileReview6 /200116 _U _FOUO _ISN685 _MFR_re_Sixth_File_Review_UPR.pdf (sixth file review). 4

Second , t he 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 sta y in a guest

house

. ” 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 th e United States. See Ali II , 736 F.3d at 54 8 (“[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 who m 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 th e Due Process Clause precludes the use of hearsay evidence and bars the presumption of regularity with respect to the government’s evidence. Circuit precedent foreclose s each of th o se 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 prove d 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 st andard 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, 1 1 (D.C. Cir. 2010) (“Lest there be any further misunderstan dings, 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 holds true 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 Zubayd ah’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, t his c ourt’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 w e 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 governmen t’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.

Th at argument does not extract Ali from the force of binding circuit precedent. In developing the procedures16
applicable to AUMF challenges , this c ourt contemplated that detention s 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 up on the continuation of hostilities”). T he length for which hostilities might continue was uncertain then a nd continues to be uncertain now

. And this c ourt’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 c ites 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

Fina lly, Ali argues that this c ourt 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 detention s

. See

, e.g. , Zadvydas v. Davis , 533 U.S. 6 78, 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 q uestion 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.

II I

For all of th o se reasons , the district court’s denial of Ali’s petition for a writ of habeas corpus is affirmed.

So ordered

.R A N D O L P H , 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 rec onciled with the law of this cir cu it or with the Supreme Court’s interpr etation of the Const itution.

Qassim announced that “Circuit preceden t leaves open and unresolved” the question whether detain ee s at the Guantanamo Bay Naval Station in Cuba are entitl ed to the “procedural ” due process protecti ons of the Fifth Am endment

ev en though circuit precedent foreclosed “substanti ve” due
process claims. 927 F.3d at 530. That depiction of circuit precedent was not accurate and, more important, it contradic ted decisions of the Supr eme Court. Rather than “open and unresolved,” it is “well establi shed” that th e protecti ons of the Fifth Am endment’s Due Process Clause “do not extend to aliens

ou tsi de the terri torial boundaries” of the United States, inc lud ing those hel d at Guantanamo Bay. Zadvydas v. Davis
, 533 U.S. 678, 693 (2001).

To explain my po si ti on I begin where Qassim and today’s majority opinion should have begun – with the Supreme Court’s interpr etation of the Due Proc es s Clause. I follow a well-marked path. See Qas si m v. Trump
, 938 F.3d 375, 376 (D.C. Cir. 2019) (Henderson and Rao, JJ. dissenti ng from denial of en banc review); see also Hernandez v. United States
, 785 F.3d 117, 125-28 (5th Cir. 2015) (Jones , J. concurri ng). 1

The Fifth Circuit’ s en banc de cision in Hernandez was 1 vacated on other groun ds by the Supreme Cour t. See Hernandez v. Mesa
, 137 S.Ct. 2003

. On rema nd, the Fifth Circuit ( en banc ) largely reiterated the relevant portio ns of Judge Jones’s 2015 concurrin g opini on. See, e.g. , 885 F.3d 811, 817 (5th Cir. 2018 ) (notin g that “no federal circuit has extended the holdi ng of Boumedien e [ v. Bush
, 553 U.S. 723 (2008 )]

. . . to other constituti onal provi si on s)

. This most recent Hernandez Fifth Circuit decision was affirmed by the Supreme Court. See Hernand

ez v. Mesa , 140 S.Ct. 7 35 (2 020).2

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

The Supreme Cou rt ’s seminal decision in Eisentrager, rendered in the twilight of W orld W ar II, interpr eted the Due Pr oc ess Clause of the Fifth Am endment to the Constituti on. That well known Clause states: “nor shall any person

. . . be deprived of life, libert y, or property, without due process of law.” U.S

. Const. amend. V (em

phasis added)

.

The lower court in Eisentrager – which happened to be the D.C. Circuit – rul ed th at “any person” in the Due Process Clause included “an enemy alien deprived of his libert y” by the United St ates “anywhere in t he world.” 339 U.S. at 767, 782. 2 The Supreme Court in Eisentrager firmly reject ed that interpr etation. Eisentrager’ s holding was clear, it was precise, and it was contrary to Qassim : a nonresident alien en emy detained by the United States outside of our sovereign terri tory
was, the Court decided, not “any person” within the meaning of the Fifth Am endment an d therefore not entitl ed to the protecti ons of the Due Process Clause. Id. at 782-85.

The Qassim court paid no attenti on to the Su pr eme Court’s interpr etation of “any person” in the Fifth Am endment. The re is no good explanati on for this omission. The Supreme Court’s ruling made it irrele vant whether t he alien’s claim w as

one of “procedural ” due process or “subst antive” due process. Under Eisentrager, it was the status of the individual as an alien

en emy held outside the United States, not the nature of hi s claims, that barred applicat ion of the Due Process Clause. As I will discuss in a moment, when the Supreme Court years later

See Eise nt ra ge r v. Forrestal
, 174 F. 2d 961, 963-6 5 (D.C. 2 Cir. 194 9).3

considered Eisentrager again

, it put the case on precisel y that footing.

In light of Eisentrager
, whether an alien en emy held at Guantanamo Bay may invoke the Due Process Clause is not – 3
to use Qassim’s wor ds – “open and unresolved.” Even so, the Qassim panel insiste d that it s opini on “explains in detail its consistenc y with” Eisentrager

. It did nothi ng of the sort. 4

Qassim rel egated Eisentrager to a footnote. The footnote gave the case citati on and appended a brief parenthet ic al

. The parenthet ical was misleading. It described Eisentrager as having decided “that enemy ali ens engaged in

Guantan amo is not part of the sovereign territory of the 3 United St at es. The Detainee Treatme nt Act of 2005
, Pub. L. No. 109– 148, 119 Stat. 2680 (2005 ), so provi des: “‘United States,’ w hen used in a geograph ic sense

. . . does not inc lu de the United States Naval Station, Guantanamo Bay, Cuba.” Also, Guantanamo is not part of the United States under the Imm igratio n and Nationality Act, 8 U.S.C. § 1101 (a)(38).

Even if there were some doub t about Guant an amo 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 departm en ts of any govern ment conclusively binds the j udges.” Jones v. United State s , 13 7 U.S. 202, 2 12 (1890 ), quoted in Oetjen v. Central Leather Co.
, 246 U.S

. 29 7, 302 (1918 )

an d Zivotofsky ex rel. Zivotofsky v. Kerry
, 135 S.Ct. 20 76
, 20 91 (2015 ). Thus, “determination of [Am erican] sovereignty over an area is for the legislative and executive departments.” Vermily a-B ro wn Co. v. Conn ell , 335 U.S. 37 7, 38 0 (19 48).

Qassim v. Trump
, 938 F.3d 375, 37 6 (D .C

. Cir. 2019 ) 4 (Millett, Pillard, and Edwards, JJ., concurrin g in denial of en banc review).4

hostile action against the United States have no imm unity from military t rial.” 927 F.3d at 529 n.5. There is not a word about the Supreme Court’s interpr etation of “any person” in the Due Process Clause. In today’s opinion, the majority does not even ci te Eisentrager
, let alone explain how it can possibly be squared with Qassim

.

To sum up, Eisentrager’ s ho lding gives the lie to Qas sim’s asserti on that it was an open question whethe r Guantanamo detainees were entitl ed to due process, procedural or otherwise

. 5

Neither the Qassim opinion nor the majority opinion in thi s case can be rational ized on the basis that Boumediene v. Bush
, 553 U.S. 723 (20 08 ), rendered Eisentrager’ s Fifth Am endment holding a dead letter

. First of all, before Qassim we had already decided that Bou me di ene did not “disturb existing law governing the extrate rritor ial reach of any co nsti tutional provisions, other than the Suspension Clause.” Rasul v. Myers, 563 F.3d 527, 529 (D .C. Cir. 2009) (per curiam). That is, Boumediene was “‘explic itly co nfined’” 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 fo r the review and d isposition o f Gu antanamo detainees. These Executive Orders appear to recognize that the Fifth Ame ndment does not apply to the non-resid ent aliens held at the naval
st at io n. See, e.g. , Exec. Order 1349 2, 74 Fed. Reg. 4897 -99 (no mention of constituti onal due process, but notin g that indiv iduals held
at Guantanamo “have the constituti onal privileg e of the writ of habeas corpus”); Exec. Order 1356 7, 76 Fed. Reg. 1327 7 (establis hi ng , “ as

a discre tio nary matter , a process to review on a periodic basis the executive branch’ s continu ed, discret ion ary exercise of existing detention author ity in in divid ual cases”) (em phasis added ).5

529. See also United States v. Bahlul
, 840 F.3d 757, 796 (D.C. Cir. 2016) (Mi llett , J.,concurri ng) (quoting Rasul )

. 6

Pe rh ap s th e Qas si m cour t be li ev ed th at Bo ume di en e eroded Eisent rager’s precedenti al value because Boumediene stated that “there are criti cal differences between Landsberg Pris on, circa 1950, and the United States Naval Station at Guantanamo Bay in 2008.” 553 U.S. at 768. Boumediene added that Gua ntanamo Bay “is no transie nt possession” and is in “every practic al sense” “within the constant jurisdi ction of the United States .” 553 U.S. at 768-69.

But Qassim made no attempt to distingui sh Eisentrager

on this basis. More, Guantanamo Bay is not within the sovereign terri tory of the United States, and its legal status is not for the court s to decide. See note 5, supra

. More still
, imm ediatel y after declari ng that the naval station “is no transie nt possession,” Boumediene once again made clear that t he scope of it s op in io n concerned only the Suspension Clause. See 553 U.S. at 769 (acknowledging that “there are costs to holding the Suspension Clause applicabl e in a case of military detention

a b r o a d ” b u t d i s t i n g u i s h i n g E i s e n t r a g e r n o n e t h e l e s s )

. Guantanamo’s status thus cannot be used as a ba si s for expanding, sua spont e , the reach of t he Fifth Am endment.

Second, even if Boumedien e somehow put Eisentrager into doubt, the Qassim court failed to heed the Supreme Court’s warning that its “decisions re mai n binding precedent until we

see fit to reconsider them, regar dl ess of whether subsequent

cases have raised doubts about their continuing vitali ty.” Hohn

The Ninth Circuit agrees. See Thurai ssigiam v. U.S. Dep’t 6 of Homeland Security
, 917 F.3d 1097
, 1111 -12 (9th Cir

. 2019 ) (“ Boumedien e itself clearly recognized the distinctio n between the Fifth Amendment’s du e process right s and th e Suspensio n Clause”).6

v. United States
, 524 U.S. 236, 252–53 (1998). When a Supreme Cou rt de cision “has direct applicat ion in a case, yet appears to rest on reasons reject ed in some ot he r line of decisions, the Court of Appea ls should follow the case which directl y controls, leaving to th[e Supreme] Court the prerogati ve of overruli ng its own decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc
., 490 U.S. 477, 484 (1989); see also id

. at 486 (Stevens, J., dissenti ng); Agostini v. Felton
, 521 U.S. 203, 237 (1997); se e al

so id. at 258 (Ginsburg, J., dissenti ng); State Oil Co. v. Khan
, 522 U.S. 3, 9, 20 (1997); Thurston Motor Lines, Inc. v. Jordan K. Rand, Lt d.
, 460 U.S. 533 (1983) (per curiam). 7

2. United States v. Verdugo-Urqui de z, 494 U.S. 259 (1990)

Th e ultimate issue in Verdugo-Urquidez was “whether the Fourth Am endment applies to the search and seizure by the United States of property that is own ed by a nonresident alien and located in a foreign country.” 494 U.S. at 261. Qassim was not directl y concerned with the Fourth Am endment and neither

Qassim and today ’s majority op in io n quote Boumedien e’s 7
statem ent that the Suspensio n Clause requi res that a record be made
to allow for “me aningfu l review.” See Qassim
, 924 F.3d at 524 (quot ing Boumedien e , 553 U.S. at 783). Th is ph rase did not confer
upon the lower federal courts a free- wh eeling authorit y to disregard Supreme Court precedent. The Court was not overruli ng an y of its cases outside the S uspension Clause. As th en-Judge Kav anaugh put it for our court, “[m ] eaningfu l review in this context requires that a court have ‘some autho ri ty 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 petition er s du rin g review.” Al-Biha ni v. Obama
, 590 F.3d 866, 875 (D.C. Cir. 2 010), quo ting Boumedien e, 553 U.S. at 78 6.7

are we in this case. But Qassim should have been concerned with the reasoning the Supreme Court used to decide that the Fourth Amendm ent did not appl y.
Verdugo-Urquidez discussed Eisentrager not in a parent he ti ca l in a footnote but in the text of the opinion. Eisentrager
, the Supreme Court wrote, “rejected the claim that aliens are enti tled to Fifth Am endment rights outside the sovereign terri tor y of th e United States.” 494 U.S. at 269. To the Supreme Court, “our reject ion of the extrate rritor ial applicat ion of the Fifth Am endment was emphatic,” 494 U.S. at 269. Afte r quoti ng the Eisentrager opinion, the Verdugo- 8 Urquidez Court wr ot e this: “If such is true of the Fifth Am endment, which speaks in the relati vely univer sal term of ‘person,’ it would seem even more true with respect to the Fourth Amendm ent, which appli es to ‘the people.’” Id.

Th is portion of the Verdugo-Urquidez opinion was no t dicta. It was in st ea d an intermediate step in the Court’s reasoning. There wa s nothing extraneous about the Court’s comparing the Fo ur th Am endment with Eisentrager ’s interpr etation of the Fifth Am endment. This is why the Court in

a later case treate d Ve rd

ugo-Urquide

z as having “establi shed” that Fifth Am endment protecti ons “are unavailabl e to aliens

ou tside our geogr aphic borders.” Zadvydas v. Davis , 533 U.S.

The Court quoted this language from Eisentrager : “Such 8 extraterritorial application of organic law wou ld hav e been so sign if icant an innov ation in the practice of govern ments that, if intended or apprehen de d, it could scarcely have failed to excite contemporary comme nt. Not one word can be cited. No decision of this Court suppo rts such a view. Cf. Downes v. Bidwell
, 18 2 U.S. 244. None of the learned comm entators on our Constitut ion has ever hinted at it. The practice of every modern government is oppo sed to it.” Eisentrager , 339 U.S. at 7 84.8

678, 693 (2001). Even if one were to consider the Court’s Fifth 9 Am endment discussion as dicta, which it is not, Qassim cannot 1 0 be harmonized with Verdugo-Urquidez. Did Qassim even try to distingui sh Verdugo-Urquidez ? It did not.

Qassim again relegat ed the Supreme Court’s opinion to

a footnote, gi vi ng the official case citati on and attachi ng a parenthet ical stating: “Fourth Am endment protecti ons do not apply extrate rritor ially to a search conducted within a foreign
count ry of property belonging to a foreign citize n with no voluntary conne ction to t he United State s.” 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 Pr oc es s Clause or the Court’s discussi on of Eisentrager
, even though both directl y impacted the issue before the Qassim court. The majority opinion in thi s case follows suit

.

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

In Zadvydas
, the Supreme Court stated that: “It is well establi shed that certai n constitut ional protecti ons availabl e to persons inside the United States are unavailabl e to aliens outside of our geographic borders.” 533 U.S. at 693. In support of this

See pp. 8-9 infra

. 9

Ha rbury v, Deutch
, 233 F.3d 596, 604 (D.C. Cir. 2000 ), 1 0 rev’d on other groun ds sub nom. Christoph er v. Ha rb ury , 536 U.S. 40 3 (20 02), held that even if the Fifth Ame ndment discussion in Verdugo -Urquidez was “dicta,” “it is firm an d con sidered dicta that binds this court.” The court therefore rul ed that the Due Process Clause did not apply to “foreign nationals living abroad.” 233 F.3d at 602. As to th e bindi ng force of Verdugo -Urquidez’s analysis of the Fifth Ame ndment, see also People’s Mojahedin Org. of Iran v. U.S. Dep’t of S tate , 182 F.3d 17, 22 (D.C. Cir. 199 9).9

statement of const itutiona l law the Court ( id. ) cited two cases:

“ See United States v. Verdugo-Urquidez
, 49 4 U.S. 259, 269 (1990) (Fifth Am endment’s protecti ons do not extend to aliens outside the terri torial boundaries) ; Johnson v. Eisentrager
, 339 U.S. 763, 784 (1950) (same).”

How did Qassim respond to the Supreme Court’s recita l of th is “well establi shed” Fifth Am endment 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 citati on with

a parenthet ical reading: “addres se s the imm igrati on power to exclude ali ens from entering the United States.” Qassim
, 927 F.3d at 529 n. 5. This conveyed the impression that Zadvydas had nothing pertinent to say abo ut the issue before the Qassim court, which of course was not true. Once again this portion of Zadvydas is ignored i n today’s majority opi nion.

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

Qassim’s team of attorneys candidly admitte d th at the law of this circuit was against them. On behalf of their client 1 1 in the distri ct cou rt, they “entered into a stipulat ion with the government disputing the allegat ions against him but conceding that
, under the existing legal standards which denied him due
process and the abilit y to see and confront the evidence against him, he could not prevail.” Qassim v. Trump
, Dkt. No. 18-5148, Appella nt’s Br. 10. On appeal, Qassim’s attorneys conceded that circuit precede nt foreclosed his sole argument “that the

While they de ser ve credit for their honest evaluation of 1 1 circuit precedent, they failed to address or eve n mention the most important Supreme Court decisions – Eisentrager
, Verdugo -Urquidez and Zadvyda s , opini ons repeatedly cited in the decisions of our court and in the gov ernment’s brief in Qassim

.10

Fifth Am endment’s due process clause applies to un pr ivileged
enemy combatants detained at Guantanamo Bay.” Qassim v. Trump , Dkt. No. 18-5148, Appelle es’ Br. 4. 1 2

Despite these concessions, the Qassim panel reached out and decided the very issue the parties had conceded, and decided it – ob vi ously without any briefing – in a way that was the opposite of what the par ties had st ipulated.

The Qassim opinion devoted most of its attenti on to one circuit case – Kiyemba v. Ob ama , 55 5 F.3d 1022 (D.C. Cir. 2009), vacated
, 559 U.S. 131, and reinstat ed as amended
, 605 F.3d 1046 (D.C. Cir. 2010). Kiyemba , rel ying on t he Supreme Court’ s opinions in Eisentrager, Verdugo-Urquidez an d Zadvydas
, held that “the due process clause does no t apply to aliens without property or presence in the sovereign terri tory of th e United States.” 555 F.3d at 1026. According to Qassi m , however, this meant only that the Guantanamo detainees had no substantiv e due process rights, which left open the question whether they had procedu ral due process rights. After all, Qassim reasoned, only a su bstantive due process right was involved in Kiyemba

.

That distinct ion is too clever by half. It once again tries 1 3

Qassim ’s attorney s recognized that the panel of our court 1 2 assigned to his case could not “overrule or disregard prior panel holdi ngs,” bu t could “request[] proceeding s en banc to reconsider” circuit precedent. Qassim v. Trump
, Dkt. No. 18-51 48, Appellant’ s Br. 5.

A sepa ra te st atem ent i ssued i n an earlier stage o f th is case

1 3 put th e substantiv e-procedural b ee in Qassim’s bon net. See Qassim
, 927 F.3d at 528 (citing and quoti ng Ali v. Trump
, 2019 WL 8507 57 at *2 (D.C. Cir. 2019 ) (Tatel, J. concurrin g in denial of en banc review)).11

to divert attenti on from the essentia l points of the Supreme Co urt op in io n s in E is e n tr

ager, Ve rd

ug o-U rq uid ez an d Za dv

yd as , opinions on which Kiyemba and other cases from this circuit

re li ed. As I have explaine d, those Supreme Court opinions

ren der Qassim’s substanti ve-procedur al dichotomy irrel evant as

a matter of constitut ional law. The reason the Due Process Clause did not apply in Kiyemba was not that the detainees had raised a “substanti ve” due process claim. The phrase 1 4 “substanti ve due process” does not appear in the Kiyemba opinion. The detainees were not entitl ed to the protecti on of the Due Process Clause because the Supreme Court has decided that aliens ou ts id e of the United States do not qualify as “any person” withi n the meaning of the Fifth Am endment.

In addition to the opinions of the Supr eme Court, Kiyemba relied upon five opinions of thi s circuit : Pauling v.

That statem ent did not confron t, indeed did not e ven mention, any of the Supreme Court’ s opini ons. My colleague may perhaps be excused because the en banc petition er failed to mention any of those cases. See note 11
, infra

.

Even so, the statem ent to which I ref er co nfirms my longstanding objection to the pra ctice of indiv idual judges issuing opini ons

on denials of rehearing en banc

. I thoug ht then and think now that the practice “rub s against the grain of Article III’s ban on advisory opini ons. The manner in wh ich these en banc ‘bulletin s’ are formulated does not simulate the pro ces s of the court when it is actually deciding a case. If recurring issues are addressed, en banc
statem ents may be ta nt amount to prejudg ments,” and – as we see in this case – often are. Independ ent Insuran ce Agents of America, Inc. v. Clarke , 965 F. 2d 107 7,10 80 (D.C. Cir. 199 2).

Eisentrager it se lf cannot be disting uished on any such basis. 1 4 The habeas petition ers in Eisentrager raised procedural due process claims

. See Eisentrager v. F orrestal , 174 F.2d at 963

.12
McElroy
, 278 F.2d 252, 254 n.3 (D.C. C ir. 1960) (per curiam); People’s Mojahedin Organization of Iran v. U.S. Department of St at e , 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, 79 9 (D .C. Cir. 2002); Jifry v. FAA
, 370 F.3d 1174, 1182 (D.C. Cir

. 20 04). 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 terri tory of the United Sta tes.” 555 F.3d at 1026.

Qassim
, although purporting to recite the law of our circuit , completely neglected th ese cases upon which Kiyemba relied. This omission is all the more egregious becaus e of the five circuit precedents
, four denied procedur al due process rights to aliens without proper ty or presence in the United States

– th e very issue Qassim asserte d was an open question in our court

. See People’s Mojahedin
, 182 F.3d at 22, 25; Harb ur y , 233 F.3d at 59 8, 60 4; 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- Kiyem ba op ini on s of thi s co urt. Its treatment of those cases is of a pi ec e 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 rel ie d on the Supreme Court opinions in Eisentrager and Verdugo-Urquidez and concluded that “t he law of this circuit also holds that the Fifth Am endment does not extend to aliens or foreign entiti es 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 na rrati ve, Qassim asserte d that Rasul – and the other post- Kiyemba cases

– had each “reserve d such Due Process questions,” “such” being13
procedural due process. 927 F.3d at 530. That asserti on was not true with respect to Rasul
, and it was not true of the three other

ca ses. Rasul did not refuse to decide whether the detai ne es at Gua ntanamo were entitl ed to procedural due process. Rasul decided that question and plainly held they were not so entitl ed. See 563 F.3d at 531. W hat th e Qassim opinion is referring to

so mething quite different. It is Rasul’s statement that whether

“ Boumediene has eroded the precedenti al force of Eisentrager and its progeny.

. . is not for us to determine; the Court has reminded the lower federal courts that it alone retai ns the authorit y to overrul e its pre cedents.” 563 F.3d at 529.

The second po st- Kiyemba case is Al-Madwhani v. Obama
, 642 F.3d 1071 (D.C. Cir. 2011). Al-Madwhani held that Guantan amo detainees could not rely on procedural due
process, stating flatly “that the deta inee s at Guantanamo Bay
possess no constitut ional due process rights.” 642 F.3d at 1077 (citi ng Kiyemba ) (alter ations omitted). The Al-Madwhani court then wrote this: “Even assuming Madhwani had a constitut ional right to due process and assuming the distri ct court violated it by relying on evidence ou tsi de the record— premises we do not accept —such error would be “harmless beyond a reasonable doubt

. . ..” Id

. (emphasis added). The Qassim opinion omitted the hi gh lighted language and by doing so, gave the false impression that Al-Madhwani left open the question whether procedural due process appl ied at Guantana mo.

Qassim cited two other Guantanamo cases in support of its claim that post- Kiyemba decisions of this court had reserved the question whether “consti tu ti onal procedural protecti ons” applied to the detainees

. 927 F.3d at 530. As to one of them

– Aamer v. Obama
, 742 F.3d 10 23 (D.C. Cir. 2014)

– Qassim
correct ly states that the opinion assumed “without deciding that the constitut ional right to be fr ee from unwanted medical
tr ea tme nt e x t e n d s t o n o n r es id en t al ie ns de ta in ed at14

Gua ntana mo.” 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 concer ns substantiv e not procedural rights. The Aamer court confirmed as much, noting that the de tainees “advance two separate substanti ve claims regarding t he legali ty of force-feeding.” 742 F.3d at 1038.

The same objection pertains to th e four th 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 explicit ly and only with substanti ve due process ri ghts. The detainees there asserte d an “intere st in avoiding torture or mistreatment by

a foreign nation” to challenge the government’ s decision to transfer th em fr om Guantanamo Bay to another country. 561 F.3d at 518.

* * *

“Inconsist ency is the antithes is of the rule of law. For judges, the most basic principl e of jurispr udence is that ‘we must act alike in all cases of like nature.’” LaShawn A v. Barry
, 87 F.3d 1389, 1393 (D.C. Ci r. 1996) ( en banc ). The law-of-the-ci rcuit doctrine im plements that principle: the same issue pres ented in a later case in the same court should l ead t o 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 anticipa ti ng their overruli ng, were blatantl y disregar ded in Qassim

. “When a decision of one panel is inconsist ent with the decision of a prior panel, the norm is that the later decision, being a violati on 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 erosi on by its adjudicat ions si nc e. ” Breakefiel d v. District of Columbia
, 442 F.2d 1227
, 1230 (D.C. Ci r. 1970). For these reasons, I would affirm the15

distri ct court’s denial of Ali’s petiti on ba se d on a straight forward applicat ion of Eisentrager
, Verdugo-Urquidez
, Zadvydas
, and th e litany of circuit cases since Eisentrager confirming that the Fifth Amendment does not apply to aliens without proper ty or prese nce in the Unit ed States.