United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 15, 2019 Decided June 21, 2019

No. 18-5148

KHALID AHMED QASSIM,

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. 1:04-cv-01194)

Thomas B. Wilner argued the cause for appellant. With 

him on the briefs were Neil H. Koslowe, Kimberly Ferguson, 

and Anthony G. Amsterdam. 

Joseph Margulies was on the brief for amicus curiae 

Commonwealth Lawyers Association in support of appellant.

Brad Hinshelwood, Attorney, U.S. Department of Justice, 

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

Sharon Swingle and Michael Shih.

Before: MILLETT and PILLARD, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Khalid Ahmed Qassim, who has

been held at the Guantanamo Bay Naval Base in Cuba for 

seventeen years, appeals the district court’s denial of his 

petition for a writ of habeas corpus. On appeal, Qassim presses 

a due process challenge to the government’s use of undisclosed 

classified information as a basis for his detention. In denying 

Qassim’s motion in limine concerning the use of undisclosed 

information, the district court ruled that, as an alien

Guantanamo detainee, Qassim has no rights under the Fifth 

Amendment’s Due Process Clause. In so ruling, the district 

court relied on this court’s 2009 decision in Kiyemba v. Obama, 

555 F.3d 1022 (D.C. Cir. 2009), vacated, 559 U.S. 131, and 

judgment reinstated as amended, 605 F.3d 1046 (D.C. Cir. 

2010). 

The district court’s ruling that binding circuit precedent 

denies Qassim all rights to due process was in error. Kiyemba 

did not so hold. That decision ruled only that the Due Process 

Clause does not invest detainees who have already been 

granted habeas corpus with a substantive due process right to 

be released into the United States. That decision did not decide,

or have any occasion to address, what constitutional procedural 

protections apply to the litigation of a detainee’s habeas corpus 

petition in the first instance. Nor has any other decision of this 

circuit adopted a categorical prohibition on affording detainees 

seeking habeas relief any constitutional procedural protections. 

The governing law, in fact, is that Qassim and other alien 

detainees must be afforded a habeas process that ensures 

“meaningful review” of their detention. Boumediene v. Bush, 

553 U.S. 723, 783 (2008).

Beyond that, resolution of Qassim’s specific due process 

challenge to the government’s withholding of classified 
3

information would be premature precisely because the parties 

and the district court operated under a faulty understanding of 

circuit precedent. We instead are constrained to remand the 

case for further proceedings to be conducted within the correct 

legal framework and to develop the needed factual record. 

Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) (“When 

an appellate court discerns that a district court has failed to 

make a finding because of an erroneous view of the law, the 

usual rule is that there should be a remand for further 

proceedings to permit the trial court to make the missing 

findings.”). As it now stands, the record is insufficient for this

court to resolve Qassim’s constitutional challenge. Cf. Reno v. 

Catholic Soc. Servs., Inc., 509 U.S. 43, 66 (1993). We leave it 

for the district court to address on remand both Qassim’s 

claimed constitutional right to access the classified information 

in the government’s hands and the constitutional source (if any)

of such a right. In so doing, the district court can also address 

the government’s belated concession, made for the first time on 

appeal, that some of the sought-after information may properly 

be disclosed in this case.

I 

A

In response to the terrorist attacks against the United States 

perpetrated on September 11, 2001, Congress enacted the 

Authorization for Use of Military Force, Pub. L. No. 107-40, 

115 Stat. 224 (2001). That law authorizes 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.” Pub. L. No. 107-40, § 2(a), 115 Stat. 

224, 244. That authority includes detaining “those who are part 

of forces associated with Al Qaeda or the Taliban[.]” Al-
4

Madhwani v. Obama, 642 F.3d 1071, 1074 (D.C. Cir. 2011) 

(quoting Al–Bihani v. Obama, 590 F.3d 866, 872 (D.C. Cir.

2010)).

Petitioner Qassim is a Yemeni citizen. In 1999, he was 

recruited by a known al Qaeda and Taliban recruiter to travel 

from Yemen to Afghanistan for military-style training. He 

traveled to Afghanistan and twice received training at the al

Qaeda-run Al-Farouq training camp.1

 

In October 2001, when the United States began bombing 

Afghanistan in response to the September 11th attacks, Qassim 

was on the front lines with the Taliban near Bagram, 

Afghanistan. After the front lines broke, Qassim retreated to 

an al Qaeda-affiliated guest house and then to the Tora Bora 

region, a cave complex in the mountains of Eastern 

Afghanistan. Qassim spent twenty days in Tora Bora and was 

present for a nighttime visit from Osama bin Laden. 

Qassim was arrested by Afghan police, who handed him 

over to United States authorities in December 2001. Qassim’s 

name was later found during raids of al Qaeda safehouses and 

an al Qaeda residence in Pakistan. On May 1, 2002, the United 

States moved Qassim to its detention facility at Guantanamo 

Bay, where he has remained.

B

Shortly after the Supreme Court held in Rasul v. Bush, 542 

U.S. 466 (2004), that the federal habeas statute, 28 U.S.C. 

 1 This factual background is drawn from the joint stipulation of 

facts between the parties. Qassim has conceded these facts for 

purposes of this appeal only, and has reserved the right to contest 

them in subsequent proceedings. 
5

§ 2241 (2004), applies to foreign detainees held at Guantanamo 

Bay, id. at 481, Qassim filed a petition for habeas corpus in the 

United States District Court for the District of Columbia. 

Qassim’s habeas case has a long and winding history. 

While Qassim’s habeas petition was pending in district court, 

Congress enacted the Detainee Treatment Act of 2005, Pub. L. 

No. 109-148, 119 Stat. 2739. That statute purported to deprive 

the federal courts of jurisdiction over habeas cases brought by 

aliens detained at Guantanamo Bay. See Pub. L. No. 109-148

§ 1005(e)(1), 119 Stat. 2739, 2742. A year later, the Supreme 

Court held that the Detainee Treatment Act did not deprive 

federal courts of jurisdiction over habeas petitions that, like 

Qassim’s, were already pending at the time the law was 

enacted. See Hamdan v. Rumsfeld, 548 U.S. 557, 575–578 

(2006). 

Congress then passed the Military Commissions Act of 

2006, which purported to strip the federal courts of jurisdiction 

over pending habeas cases from detainees at Guantanamo Bay. 

Pub. L. No. 109-366, 120 Stat. 2600. In Boumediene v. Bush,

the Supreme Court invalidated a section of the Military 

Commissions Act as an unconstitutional suspension of the writ 

of habeas corpus, and held that the privilege of habeas corpus 

entitles detainees to a “meaningful opportunity” for review, 

553 U.S. at 771, 779, 783.

In the wake of Boumediene, Qassim and the government

agreed to indefinitely stay his case while the standards and 

procedures for litigating Guantanamo habeas cases were 

worked out in other pending cases. 

And so Qassim waited. And waited. For eight years, his 

case remained in limbo. Finally, in February 2017, Qassim

attempted to spur action on his case by moving for the entry of 
6

final judgment without factual findings. In Qassim’s view, this 

court’s precedent preordained the denial of his habeas petition, 

so he asked the district court to enter judgment in an effort to 

obtain en banc or Supreme Court review overturning that 

precedent. 

The district court denied the motion, reasoning that factual 

findings needed to be made before final judgment could be 

entered and the case could proceed to appellate review. 

Recognizing Qassim’s desire to proceed expeditiously to 

appeal, the district court advised the parties to propose a 

procedure that would allow for a prompt disposition of the case 

on the basis of a sufficient factual record. 

Qassim then proposed to the government pre-trial and trial 

procedures that, among other things, would allow for the 

disclosure of classified materials to his counsel and for the 

sharing with Qassim of an “adequate substitute” for such 

materials. Supp. App’x 38. Under Qassim’s plan, the 

government would be unable to rely on any information that 

had not been disclosed to justify Qassim’s detention. 

The government rejected Qassim’s proposal, suggesting 

instead that the parties proceed by way of a stipulated factual 

record. Under the government’s framework, the parties’ 

stipulations would allow the district court to “make findings of 

fact and conclusions of law,” while still preserving Qassim’s 

right to appeal certain aspects of a case management order and 

a protective order that the district court issued in 2008 to 

establish procedures for the adjudication of Guantanamo Bay 

habeas corpus petitions. Supp. App’x 64–65.

Qassim acquiesced to the government’s proposal on the 

condition that his right to assert a due process claim would be 

preserved for appeal. Public J.A. 27–28; see also Supp. App’x 
7

48 (email explaining government’s view that the parties should 

adopt a procedure that preserved the issues Qassim wished to 

challenge on appeal without having to relitigate in district court 

pertinent circuit decisions and the procedures governing 

Guantanamo habeas cases).

2

In the face of a series of district court rulings holding that 

the Kiyemba ruling categorically denied Guantanamo Bay 

detainees the protections of the Due Process Clause, Qassim 

filed a motion in limine.

3

 In that motion, he asked the district 

court to resolve his habeas petition “without regard to the 

premise that ‘the due process clause does not apply to aliens 

 2

 At every step of this litigation, Qassim reserved his right to 

raise on appeal his claim that he is entitled to procedural due process

in his habeas proceedings. See, e.g., Motion for Entry of Judgment 

2–3, Dkt. 1093 (explaining intention to challenge due process 

language in Kiyemba en banc and, if necessary, at the Supreme 

Court); Motion in Limine 4, Unclass. J.A. 425 (arguing that 

“Guantanamo detainees are entitled to the procedural protections of 

the Due Process Clause in petitioning for habeas corpus relief”); id.

at 6, Unclass. J.A. 427 n.1 (noting “that some of the evidence upon 

which the government relies to support its ongoing detention of 

[Qassim] consists of documents that are redacted in part or in full, 

which have not been seen or read by Qassim or his counsel,” and 

arguing that “[d]ue process requires a timely disclosure of all the 

evidence against Qassim and a fair opportunity to challenge and 

rebut such evidence”); Prehearing Br. 5, Supp. App’x 79 (arguing 

that “Guantanamo Detainees Are Entitled to Due Process”); District 

Ct. Tr. 4, Public J.A. 4 (arguing that “Mr. Qassim is entitled to the 

protections of the due process clause”).

3 See, e.g., Rabbani v. Obama, 76 F. Supp. 3d 21, 25 (D.D.C. 

2014); Ameziane v. Obama, 58 F. Supp. 3d 99, 103 n.2 (D.D.C. 

2014); Bostan v. Obama, 674 F. Supp. 2d 9, 29 (D.D.C. 2009); Salahi 

v. Obama, No. 05-0569 (RCL), 2015 WL 9216557, at *5 (D.D.C. 

Dec. 17, 2015). 
8

without property or presence in the sovereign territory of the 

United States.’ (Kiyemba v. Obama, 555 F.3d [at] 1026[)].” 

Unclass. J.A. 423. In addition, Qassim asked the district court 

not to rely on any evidence “that was not provided in advance 

and in writing to [him] [and] * * * that was not accompanied 

by the full disclosure of all information in the government’s 

possession bearing on the weight, provenance, and accuracy of 

the evidence claimed to justify petitioner’s detention[.]” 

Unclass. J.A. 423. 

The district court denied the motion in limine, reading this 

court’s decision in Kiyemba as establishing that Qassim had no 

right to due process. See Public J.A. 18–19. The district court 

then entered final judgment based on the parties’ stipulated 

facts and denied Qassim’s habeas petition. Included in those

stipulations was a reiteration of Qassim’s objection to the 

application of Kiyemba to deny him due process protections, 

and a reservation of his right to challenge that decision on 

appeal. See Public J.A. 28. Qassim filed a timely notice of 

appeal. 

II

Qassim argues on appeal that denying him or his attorneys 

access to the classified evidence that the government is using 

to detain him violates the Due Process Clause of the Fifth 

Amendment, and that this court should recognize due process 

protections for Guantanamo Bay habeas petitioners. 

Although we cannot accept either proposition on the 

record before us, we agree with Qassim that his case has thus 

far been adjudicated within an erroneous legal framework. The

district court should not have applied Kiyemba as a categorical 

bar on constitutional procedural protections in habeas litigation

for foreign detainees at Guantanamo Bay. Because that flawed 
9

premise on which this case was litigated prevented the district 

court from developing the concrete record necessary for 

resolution of the particular evidentiary due process question 

that Qassim presses, we remand for the district court to 

consider in the first instance whether and how the Due Process

Clause applies to Qassim’s request that he or his counsel be 

allowed to see classified information relevant to his detention. 

A

The district court’s denial of Qassim’s motion in limine 

and the entry of judgment against Qassim were both predicated 

on that court’s conclusion that Kiyemba firmly closed the door 

on procedural due process claims for Guantanamo Bay 

detainees. That was error. 

Kiyemba neither presented nor decided the question of 

whether Guantanamo detainees enjoy procedural due process 

protections under the Fifth Amendment (or any other 

constitutional source, see, e.g., Suspension Clause, U.S. Const. 

Art. I, § 9, cl. 2) in adjudicating their habeas petitions. In fact, 

Kiyemba was not about the procedures for litigating habeas 

petitions at all. In Kiyemba, the central habeas question of the 

government’s authority to detain the petitioners had already 

been resolved. The government conceded that the Kiyemba 

detainees, who were Chinese Uighurs, could not lawfully be 

held as enemy combatants. 555 F.3d at 1024. For that reason, 

the question of what procedural protections apply in the habeas 

process, including whether there is any right to confront the 

government’s evidence, was not before the Kiyemba court in 

any way, shape, or form. See generally Kiyemba, 555 F.3d 

1022.

Instead, the issue on appeal in Kiyemba was the narrow 

question of what remedy could be given once the government 
10

conceded that it could not lawfully hold those detainees. 

Specifically, because Kiyemba and his fellow petitioners

argued that they could not be returned to their country of origin 

due to a fear of torture or execution, Kiyemba, 555 F.3d at

1024, the district court had ordered the detainees released into 

the United States, citing the need to protect the “fundamental 

right of liberty[,]” id. at 1026 (internal quotation marks 

omitted). The federal government opposed that remedy. And 

that substantive due process claim concerning the scope of the 

habeas remedy is the only Due Process Clause issue that 

Kiyemba resolved. See id. (holding that “the due process clause 

cannot support the court’s order of release”) (emphasis added); 

id. at 1029 (“The question here is not whether petitioners 

should be released, but where.”); id. at 1028 (“[T]he decision 

whether to allow an alien to enter the country [i]s for the 

political departments, not the Judiciary.”) (citing U.S. ex rel. 

Knauff v. Shaughnessy, 338 U.S. 537 (1950), and Shaughnessy 

v. United States ex rel. Mezei, 345 U.S. 206 (1953)); see also 

Ali v. Trump, No. 18-5297, 2019 WL 850757, at *2 (D.C. Cir. 

Feb. 22, 2019) (Tatel, J., concurring in denial of en banc

review) (“Context * * * indicates that the [Kiyemba] court was 

referring to the right to substantive due process.”). 

Nor could Kiyemba have slammed the door on the 

Constitution’s procedural protections for Guantanamo Bay 

detainees in the adjudication of their habeas petitions. The 

Supreme Court’s decision in Boumediene was explicit that 

detainees must be afforded those “procedural protections” 

necessary (i) to “rebut the factual basis for the Government’s 

assertion that he is an enemy combatant,” 553 U.S. at 783; (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,” id. at 779 (internal quotation 

marks and citation omitted); and (iii) to create a record that will 

support “meaningful review” by the district court, id. at 783. 
11

In so holding, the Supreme Court pointed to both the 

Constitution’s guarantee of habeas corpus, U.S. Const., Art. I, 

§ 9, cl. 2; see Boumediene, 553 U.S. at 771–792, and the 

procedural protections of the Due Process Clause, id. at 781 

(scope of habeas review “accords with our test for procedural 

adequacy in the due process context”); id. at 785 (reserving 

issue of whether statutory procedures “satisfy due process 

standards”).

To be fair to the district court, Kiyemba did say at one point 

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 1026.4 But the purely remedial context of 

that statement necessarily cabined its reach. After all, federal 

courts have no license to provide advisory opinions on issues 

that are not presented by the case before them. See Flast v. 

Cohen, 392 U.S. 83, 96 (1968) (“[T]he oldest and most 

consistent thread in the federal law of justiciability is that the 

federal courts will not give advisory opinions.”) (internal 

quotation marks omitted); Public Serv. Elec. & Gas Co. v. 

FERC, 783 F.3d 1270, 1274 (D.C. Cir. 2015) (same).5 

 4 This statement has been read broadly by numerous district 

court judges. See supra n.3; Ali v. Trump, 317 F. Supp. 3d 480, 488 

(D.D.C. 2018). 

5 The Supreme Court citations that Kiyemba pointed to in 

making its statement about the application of the Due Process Clause 

to aliens likewise confirm that the decision was not addressing the 

procedural protections due in habeas corpus proceedings. See

Kiyemba, 555 F.3d at 1026–1027 (citing Zadvydas v. Davis, 533 U.S. 

678, 693 (2001) (portion cited by Kiyemba addresses the 

immigration power to exclude aliens from entering the United 

States); Johnson v. Eisentrager, 339 U.S. 763, 783–784 (1950) 

(portion cited in Kiyemba holds that enemy aliens engaged in hostile 

action against the United States have no immunity from military 
12

Doubly so when deciding constitutional questions. 

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

decision.” Association of American Railroads v. United States 

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

Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“For 

adjudication of constitutional issues[,] concrete legal issues, 

presented in actual cases, not abstractions are requisite.”) 

(internal quotation marks omitted); see also Plaut v. 

Spendthrift Farm, Inc., 514 U.S. 211, 217 (1995) (courts are 

obligated to resolve cases, when possible, on “the narrower 

ground for adjudication of the constitutional question[ ] in the 

case”); Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 

347 (1936) (Brandeis, J., concurring) (courts should not 

“formulate a rule of constitutional law broader than is required 

by the precise facts to which it is to be applied”) (internal 

quotation marks omitted). 

Tellingly, no subsequent decision of this court has read 

Kiyemba as walling off Guantanamo Bay detainees from all 

constitutional procedural protections. See Aamer v. Obama, 

742 F.3d 1023, 1039 (D.C. Cir. 2014) (“assum[ing] without 

deciding that the constitutional right to be free from unwanted 

medical treatment extends to nonresident aliens detained at 

Guantanamo”); Al-Madhwani v. Obama, 642 F.3d 1071, 1077 

(D.C. Cir. 2011) (assuming the detainee had a constitutional 

right to due process and the district court violated it, but 

concluding that “such error would be harmless”) (quotation

marks omitted); Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 

2009) (declining to “decide whether Boumediene portends 

 

trial); and United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 

274–275 (1990) (portions cited by Kiyemba hold that 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)).
13

application of the Due Process Clause and the Cruel and 

Unusual Punishment Clause to Guantanamo detainees”); 

Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509, 514 n.4 

(D.C. Cir. 2009) (assuming without deciding that Guantanamo 

detainees possessed substantive due process rights in transfers 

to foreign countries). We would not have repeatedly reserved 

such Due Process Clause questions if they had already been 

conclusively answered in Kiyemba. 

That is all a long way of saying that this court’s decision 

in Kiyemba did not answer a question that was never asked. 

Circuit precedent leaves open and unresolved the question of 

what constitutional procedural protections apply to the 

adjudication of detainee habeas corpus petitions, and where 

those rights are housed in the Constitution (the Fifth 

Amendment’s Due Process Clause, the Suspension Clause, 

both, or elsewhere). 

B

Qassim argues that the Due Process Clause applies to him 

and requires that he and his counsel be afforded access to 

classified information underlying the government’s decision to 

detain him so that Qassim can confront and challenge it in his 

habeas petition. 

Under long-established principles of constitutional 

avoidance, courts must “avoid the premature adjudication of 

constitutional questions” and “not * * * pass on questions of 

constitutionality * * * unless such adjudication is 

unavoidable[.]” Matal v. Tam, 137 S. Ct. 1744, 1755 (2017); 

see Clinton v. Jones, 520 U.S. 681, 690 n.11 (1997) (courts will 

not “decide any constitutional question in advance of the 

necessity for its decision[,] * * * formulate a rule of 

constitutional law broader than is required by the precise facts 
14

to which it is to be applied[,] * * * [or] decide any constitutional 

question except with reference to the particular facts to which 

it is to be applied[.]”); Ashwander, 297 U.S. at 346–347

(Brandeis, J., concurring) (“The Court will not anticipate a 

question of constitutional law in advance of the necessity of 

deciding it,” or “decide questions of a constitutional nature 

unless absolutely necessary to a decision of the case.”) (internal 

quotation marks and citations omitted). 

The rule against the “premature adjudication of 

constitutional questions,” Matal, 137 S. Ct. at 1755, counsels 

strongly against resolving such issues without an “adequate and 

full-bodied record,” Kleppe v. New Mexico, 426 U.S. 529, 546 

(1976) (internal quotation marks omitted), and the “clarity 

needed for effective adjudication,” Socialist Labor Party v. 

Gilligan, 406 U.S. 583, 588 n.2 (1972).

Qassim’s quest to see the classified information 

underlying his detention falls squarely within the category of 

premature constitutional questions. The case management 

order and protective order entered in this case provide a 

mechanism for the exchange of classified information. For 

example, the case management order creates a presumption 

that the government will turn over to the petitioner’s securitycleared counsel all reasonably available exculpatory evidence 

in its possession and, on request, all documents used to justify 

the petitioner’s detention, unless the government moves for an 

exception to withhold particular classified documents. See 

Amended Case Management Order 2–3, Unclass. J.A. 415–

416. While the protective order generally prevents detainees 

themselves from reviewing the classified information, 

Qassim’s counsel has the right to request that information be 

declassified or, according to the government, to share that 

information with Qassim either with the government’s “prior 

concurrence” or the court’s “express permission.” Gov. Br. 10. 
15

The parties invoked none of those discovery procedures. 

Instead, operating under the premise that Kiyemba disentitled 

Qassim to constitutional due process, judgment was entered 

based on a factual record that expressly preserved the due 

process question for review. See, e.g., Factual Stipulations 2–

3, Public J.A. 27–28 (citing Kiyemba for the proposition that 

“the due process clause does not apply to aliens detained at 

Guantanamo Bay,” noting Qassim’s view that this case was 

wrongly decided, and reserving Qassim’s right to challenge it); 

see also, e.g., Supp. App’x 48 (email setting out government’s 

view that parties should proceed by way of factual stipulations 

while still allowing Qassim to reserve rights for appeal).

As a result, the parties never tested the disclosure 

procedures in the case management and protective orders. 

Complicating matters further, the government has advised for 

the first time on appeal that, were Qassim to pursue the 

available procedures, he might “receive[] most or all of the 

information to which he * * * claims due process entitles him.” 

Gov. Br. 14. Of course, we would have expected the 

government to have told Qassim and the district court that 

before proposing that the parties set up an appeal to this court 

based on an incomplete record.6

 6 The government claims that it did not rely on anything 

contained in the classified material to justify Qassim’s detention. 

But that is hardly the end of the legal question. Neither Qassim nor 

the court are bound to take the government’s word for it. See Al 

Odah v. United States, 559 F.3d 539, 544–548 (D.C. Cir. 2009) 

(describing process for ex parte review of classified evidence by the 

court); Parhat v. Gates, 532 F.3d 834, 847–848 (D.C. Cir. 2008) 

(courts must have the ability in habeas cases to examine 

independently the reliability of record evidence). In any event, 

Qassim asserts a right to see materially exculpatory information in 

the government’s records, as well as information that could provide 
16

But that is water under the bridge. What matters for 

present purposes is that, unless and until specific discovery 

requests are made and ruled upon, it is impossible at this 

juncture for this court to determine (i) which information 

would be disclosed under the district court’s case management 

order and the government’s newly found optimism on appeal 

about available disclosures; (ii) whether any information that 

might be withheld even implicates possible constitutional 

disclosure obligations, cf. Gagnon v. Scarpelli, 411 U.S. 778

(1973); Morrissey v. Brewer, 408 U.S. 471 (1972); Brady v. 

Maryland, 373 U.S. 83 (1963); or (iii) what the consequences 

of extending constitutional procedural rights to alien detainees 

at Guantanamo Bay would be—that is, what balance would be 

struck between the government’s potential justifications for 

any withholdings and Qassim’s and his counsel’s need to see 

the material to meaningfully litigate his habeas petition, cf.

Boumediene, 553 U.S. at 766–771 (engaging in a contextspecific examination of the consequences of extending habeas 

corpus processes to alien detainees at Guantanamo). In other 

words, in its present posture, resolution of the constitutional 

question presented would be premature. 

To be sure, following the district court’s procedures and 

litigating any discovery disputes might not give Qassim all of 

the information to which he believes he is entitled. Still,

allowing for the discovery process to take its ordinary course 

and for a factual record to be developed would narrow and 

 

important context for the materials on which the government or the 

court might rely. See Unclass. J.A. 423, 426. Because neither we 

nor the district court have seen this classified information, we cannot 

blindly hold that the government’s failure to disclose it was harmless. 

See United States v. Dorman, 860 F.3d 675, 685 (D.C. Cir. 2017)

(noting that the government bears the burden of proving harmless

error).
17

frame the constitutional question presented, providing the 

crystallization and “clarity needed for effective adjudication.”

Socialist Labor Party, 406 U.S. at 588 n.2.

Without a decision from the district court addressing the 

constitutional question in the particular context of a concrete 

discovery dispute, it would be “premature,” Matal, 137 S. Ct. 

at 1755, for us to resolve Qassim’s due process claim, see, e.g., 

United States v. Byers, 740 F.2d 1104, 1128 n.31 (D.C. Cir. 

1984) (“[T]he well-entrenched rule is that courts will not 

resolve constitutional issues on a deficient record.”). 

Accordingly, we reverse and remand to the district court. 

See, e.g., Brown v. Plaut, 131 F.3d 163 (D.C. Cir. 1997)

(remanding so district court could develop clear record of exact 

process afforded to appellant). On remand, the district court 

will be free to modify the procedures set out in the case 

management order as necessary to facilitate resolution of the 

constitutional questions raised in this case. See Barhoumi v. 

Obama, 609 F.3d 416, 421 (D.C. Cir. 2010) (“Although the 

cases [the detainee] cites hold that parties have a duty to 

comply with case management orders, he cites no authority for 

the proposition that judges are required to follow their own 

* * * case management order[s].”). 

* * * * *

For the foregoing reasons, the district court’s judgment 

denying Qassim’s habeas petition is reversed and the case is 

remanded for further proceedings consistent with the opinion

of this court. 

So ordered.