Abdulsalam Ali Al-Hela v. Joseph Biden (REISSUED)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 30, 2021 Decided April 4, 2023

Reissued April 12, 2023

No. 19-5079

ABDULSALAM ALI ABDULRAHMAN AL-HELA, DETAINEE CAMP

DELTA, ALSO KNOWN AS ABD AL-SALAM ALI AL-HILA AND

ABDULWAHAB ALI ABDULRAHMAN AL-HELA, AS NEXT

FRIEND OF ABDULSALAM ALI ABDULRAHMAN AL-HELA,

APPELLANTS

v.

JOSEPH R. BIDEN, JR., PRESIDENT OF THE UNITED STATES, ET

AL.,

APPELLEES

On Petition for Rehearing En Banc

David M. Zionts argued the cause for appellants. On the

briefs were David H. Remes, Beth D. Jacob, S. William

Livingston, Brian E. Foster, Andrew D. Garrahan, and

Bethany Theriot. Cyril Djoukeng and Robert A. Long, Jr

entered appearances.

Joseph Margulies, Stephen M. Truitt, Kermit Roosevelt,

III, Bruce Ackerman, Erwin Chemerinsky, Eugene R. Fidell,

Eric M. Freedman, Jared Goldstein, Randy Hertz, Alan

Morrison, and Laurence H. Tribe were on the brief for amicus

curiae The Commonwealth Lawyers Association in support of

appellants.

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Thomas B. Wilner and Neil H. Koslowe were on the brief

for amicus curiae Khalid Ahmed Qassim in support of

appellants.

George M. Clarke, III and Parisa Manteghi Griess were

on the brief for amicus curiae Tofiq Nasser Awad Al Bihani in

support of appellants.

Anil K. Vassanji was on the brief for amicus curiae

Professor Eric Janus in support of appellants.

Mark C. Fleming and Patricia Lee Refo were on the brief

for amicus curiae The American Bar Association in support of

appellants.

Shayana Kadidal and J. Wells Dixon were on the brief for

amicus curiae The Center for Constitutional Rights in support

of appellants.

Jack B. Gordon was on the brief for amicus curiae Human

Rights First and Reprieve US in support of appellants.

Matthew S. Hellman was on the brief for amicus curiae

The National Association of Criminal Defense Lawyers in

support of appellants.

Sarah E. Harrington, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for appellees.

With her on the brief were Brian M. Boynton, Acting Assistant

Attorney General at the time of argument, and Sharon Swingle

and Brad Hinshelwood, Attorneys.

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Before: SRINIVASAN, Chief Judge, HENDERSON, ROGERS *,

TATEL*, MILLETT, PILLARD, WILKINS, KATSAS ∗∗, RAO,

WALKER, JACKSON ∗∗∗, CHILDS**, and PAN**, Circuit Judges,

and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WILKINS.

Concurring opinion filed by Circuit Judge PILLARD, with

whom Circuit Judges ROGERS and MILLETT join.

Opinion concurring in the judgment in part and dissenting

in part filed by Circuit Judge RAO, with whom Circuit

Judge WALKER joins.

Opinion concurring in the judgment and dissenting filed

by Senior Circuit Judge RANDOLPH, with whom Circuit

Judges HENDERSON and WALKER join.

WILKINS, Circuit Judge: Yemeni citizen Abdulsalam Ali

Abdulrahman al-Hela (“Mr. al-Hela”) challenges the basis of

his detention at U.S. Naval Station Guantanamo Bay. Detained

in 2004, Mr. al-Hela filed a petition for a writ of habeas corpus

in 2005 pursuant to 28 U.S.C. § 2241. Pet. 2; Resp. Br. 1

(Judge Randolph mistakenly asserts that Mr. al-Hela invokes

the common law, rather than the statutory, writ of habeas

corpus. Randolph Op. 5.). The petition languished as the law

surrounding the availability of constitutional protections for

Guantanamo Bay detainees developed. However, that changed

*

Circuit Judges Rogers and Tatel assumed senior status after this

case was argued and before the date of this opinion.

∗∗

Circuit Judges Katsas, Childs, and Pan did not participate in this

matter.

∗∗∗

Circuit Judge, now Justice, Jackson was a member of the en banc

Court at the time the case was argued but did not participate in this

opinion.

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when the Supreme Court confirmed the availability of the

constitutional privilege of habeas corpus in Boumediene v.

Bush, 553 U.S. 723 (2008), and concluded that the Suspension

Clause entitles noncitizens detained at Guantanamo to a

“meaningful opportunity” to challenge the basis of detention

and requires a habeas process providing a “meaningful review”

of the cause for detention and the Executive’s power to detain.

Id. at 779, 783; see U.S. CONST. art. I, § 9, cl. 2.

Proceedings began, and following a series of hearings, the

District Court denied Mr. al-Hela’s petition. Al-Hela v. Trump,

No. 05-cv-1048, unclass. slip op. (D.D.C. Jan. 28, 2019)

(Lamberth, J.) (an electronic version of the opinion is available

at 2019 U.S. Dist. LEXIS 42717).

Mr. al-Hela appealed. He argued that the length of his

detention without trial violated the Due Process Clause. He

also argued that the District Court’s procedural decisions and

evidentiary rulings deprived him of his right under the

Suspension Clause to meaningful review of, and a meaningful

opportunity to challenge, the basis for his detention, see

Boumediene, 553 U.S. at 779, 783, as well as his rights under

the Due Process Clause.

A panel of this Court affirmed the District Court’s

decision. It concluded that Petitioner’s detention remained

lawful and that the District Court proceedings had satisfied

what was required under the Suspension Clause. Al Hela v.

Trump, 972 F.3d 120, 127 (D.C. Cir. 2020). But the panel went

a step further. Rather than ruling on the government’s “first

position,” which was that Petitioner’s detention satisfied the

Due Process Clause, Oral Arg. Tr. 90, the panel adopted the

government’s “backup position,” id., and ruled that the

protections of the Due Process Clause were categorically

unavailable to Guantanamo Bay detainees and rejected Mr. al-

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Hela’s due process challenges on that basis. Al Hela, 972 F.3d

at 127, 150. Judge Randolph concurred, id. at 155 (Randolph,

J., concurring), based on his separate opinion in Ali v. Trump,

in which he stated his view that the “Fifth Amendment does not

apply to aliens without property or presence in the United

States,” 959 F.3d 364, 380 (D.C. Cir. 2020) (Randolph, J.,

concurring).

Judge Griffith concurred in part and in the judgment.

Notably, he agreed that Mr. al-Hela’s petition failed on the

merits but found no reason to reach “the broader question of

whether the Due Process Clause applies at Guantanamo.” Al

Hela, 972 F.3d at 151 (Griffith, J., concurring). Judge Griffith

concluded that Petitioner received “as much process as he

would have been due under the Due Process Clause with

respect to his particular claims.” Id.

Because this Court has on numerous occasions assumed

without deciding that the Due Process Clause extends to

Guantanamo detainees when assessing the specific claims

raised by petitioners, we vacated the panel’s judgment and

agreed to rehear Petitioner’s due process claims en banc.

Order, Al-Hela v. Biden, No. 19-5079, 2021 WL 6753656, at

*1 (D.C. Cir. Apr. 23, 2021) (“2021 Al-Hela Order”). And

because the Court’s grant of en banc review is confined to Mr.

al-Hela’s due process claims, we reinstate the panel’s judgment

as to his other claims.

After we granted rehearing, the government altered its

position on whether the Due Process Clause applies to

Guantanamo detainees. No longer arguing its secondary

position, the government urges us not to reach the question of

whether noncitizen Guantanamo detainees are beyond the

scope of the Due Process Clause. Instead, the government asks

us to reject Mr. al-Hela’s petition because, even assuming the

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Due Process Clause applies, he received all the process he is

due and his detention does not violate substantive due process.

Resp. Br. 20–21, 24–25.

For the reasons set forth below, we affirm the District

Court. Every judge on the en banc Court rejects Mr. al-Hela’s

claim that his procedural due process rights were violated. We

hold that we need not decide whether due process protections

apply to Guantanamo detainees, because even assuming the

Due Process Clause applies, we find that the procedures

employed by the District Court to adjudicate Mr. al-Hela’s

habeas petition satisfy procedural due process. Our dissenting

colleagues would hold that the Due Process Clause does not

apply to Mr. al-Hela as a Guantanamo Bay detainee and would

reject his procedural due process claim on that ground.

In addition, every member of the en banc Court rejects Mr.

al-Hela’s claims that his detention violates substantive due

process because there is insufficient evidence that he was an

enemy combatant or solely because of the lengthy duration of

the military conflict. As with the procedural due process claim,

we conclude that even assuming the Due Process Clause

applies to Mr. al-Hela, these claims fail on the merits. Again,

our dissenting colleagues would reject these claims based on

their conclusion that the Due Process Clause does not apply at

Guantanamo.

And as to Mr. al-Hela’s claim that his continued detention

violates substantive due process because he no longer poses a

significant threat to the United States, the en banc Court is

similarly divided.

We remand this claim to the District Court to resolve a

potentially antecedent statutory issue. Following argument

before the three-judge panel but prior to argument before the

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en banc Court, the Periodic Review Board created by

Executive Order, see Exec. Order No. 13,567 § 1(a), (b), 76

Fed. Reg. 13,277, 13,277 (Mar. 7, 2011), determined that Mr.

al-Hela was eligible for a transfer because his detention “is no

longer necessary to protect against a continuing significant

threat to the security of the United States.” Periodic Review

Board, Unclassified Summary of Final Determination, Abd Al-

Salam Al-Hilah (ISN 1463) (June 8, 2021) [hereinafter

“Periodic Review Board Determination”]. (Petitioner’s name

is spelled a variety of ways throughout the record.). Mr. al-

Hela contends that this intervening Periodic Review Board

Determination undermines the statutory authority for his

detention. Pet’r Reply Br. 2–3, 7–9. (The Determination was

issued after the filing of Mr. al-Hela’s opening brief to the en

banc Court.). Because the District Court did not have occasion

to address this argument, and because this statutory contention

could render his substantive due process claim moot or afford

a non-constitutional ground for granting the relief he seeks, we

remand this claim, along with the parallel substantive due

process claim, to the District Court for its consideration in the

first instance. (Our dissenting colleagues, however, would

reject this last substantive due process claim.).

I.

The panel rejected Mr. al-Hela’s contentions that the

District Court’s factual findings were in clear error, Al Hela,

972 F.3d at 134–35, and that ruling of the panel is not before

us. Accordingly, we recount the District Court’s findings here.

Mr. al-Hela is a Muslim man who enjoyed power in

Yemen. Born in Sana’a, he became sheikh (leader) of his tribe

after his father’s death in 1983. He had many successful

business ventures ranging from real estate, pharmaceutical

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sales, used car trading, weapons sales, oil exploration, and

Yemeni infrastructure investments with international

companies and government officials. Mr. al-Hela was also

close to the political elite in Yemen. Throughout the mid-1990s

and early 2000s, he supported the Political Security

Organization, a governmental internal security organization.

Through the Political Security Organization, Yemen

conducted a deportation program to rid the country of “Afghan

Arabs,” a coalition of people who settled in Yemen after

fighting in the war against the Soviet Union in Afghanistan.

The District Court found that Mr. al-Hela “acted outside the

scope” of this deportation program by facilitating the travel of

Islamic extremists, including members of al Qaeda and its

associated force, the Egyptian Islamic Jihad. It also found that

he supported bombing attacks conducted by the Aden-Abyan

Islamic Army. Al Hela, unclass. slip op. at 2–4.

In September 2002, Mr. al-Hela traveled to Cairo, Egypt

on business and disappeared. He arrived at United States Naval

Station Guantanamo Bay two years later, in 2004. He has been

held there as an enemy combatant pursuant to the 2001

Authorization for Use of Military Force (“AUMF”) without

charge ever since. Pub. L. No. 107-40, 115 Stat. 224 (2001).

Congress passed and President George W. Bush signed the

AUMF a week after the September 11, 2001, terrorist attacks.

The AUMF stipulates:

That the President is authorized 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, or harbored such organizations or

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persons, in order to prevent any future acts of

international terrorism against the United States

by such nations, organizations or persons.

AUMF § 2(a). In Hamdi v. Rumsfeld, the Supreme Court

confirmed that the President’s ability to detain “individuals

who fought against the United States in Afghanistan as part of

the Taliban . . . [in] support[] [of] the al Qaeda terrorist network

responsible for” the September 11, 2001, terrorist attacks is

authorized by the AUMF “for the duration of the particular

conflict in which they were captured.” 542 U.S. 507, 518

(2004) (plurality opinion). Congress reconfirmed this

authority in 2012 by authorizing the continued detention of

“covered persons” “without trial until the end of the hostilities

authorized by the AUMF.” National Defense Authorization

Act for Fiscal Year 2012, Pub. L. No. 112-81, § 1021(c)(1),

125 Stat. 1298, 1562 (2011).

On May 25, 2005, Mr. al-Hela filed a petition for habeas

corpus challenging his detention on the ground that the

President lacked the authority to detain him. Following

Boumediene, the District Court judges consolidated most of the

pending habeas cases for administrative purposes, and the

District Court entered a Case Management Order mandating

the procedures for conducting discovery and merits

determinations for those petitions. See In re Guantanamo Bay

Detainee Litig., Misc. No. 08-0442, 2008 WL 4858241

(D.D.C. Nov. 6, 2008), amended 2008 WL 5245890 (D.D.C.

Dec. 16, 2008) (hereinafter “Case Management Order”). The

Case Management Order was entered in Mr. al-Hela’s case and

governed his petition. See Dkt. 155; Dkt. 172.

Pursuant to the Case Management Order, the government

filed a Factual Return containing narrative and exhibits in

support of the decision to detain Mr. al-Hela, and it produced

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exculpatory evidence. Much of this information was classified,

and the Case Management Order prohibited Mr. al-Hela from

accessing classified information (other than his own

statements), but permitted his lawyers to access it, so long as

they had adequate security clearances. Case Management

Order §§ I.E.1, I.F. However, the Case Management Order

provided that the government could seek to have highly

sensitive classified documents reviewed and considered by the

court in camera and ex parte, including in instances where

petitioner’s counsel had the requisite clearance, id. § I.F., and

the government availed itself of that procedure with respect to

a subset of documents that were classified above the clearance

level of Mr. al-Hela’s lawyers. The government filed a Factual

Return justifying its detention decision in 2010 and an

Amended Factual Return in 2017.

Also pursuant to the Case Management Order, the District

Court applied a “presumption of regularity” to the

government’s documents, see Al Hela, unclass. slip op. at 22,

admitted hearsay as evidence, and used the preponderance of

the evidence standard to determine whether the government

proved the legal and factual basis for Mr. al-Hela’s detention.

Mr. al-Hela unsuccessfully challenged those procedures.

See Al-Hela v. Obama, No. 05-cv-1048, 2016 WL 2771804

(D.D.C. May 13, 2016); Order, Al-Hela v. Obama, No. 05-cv-

1048 (D.D.C. Nov. 19, 2014).

After a merits hearing, at which Mr. al-Hela was the sole

witness, the District Court denied his habeas petition. See Al

Hela, unclass. slip op. at 82. In relevant part, the District Court

held that the AUMF permits the continued detention of Mr. al-

Hela because he “more likely than not was part of or

substantially supported al Qaeda, the Taliban, or associated

forces.” Id. at 22. See generally Al-Bihani v. Obama, 590 F.3d

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866, 872 (D.C. Cir. 2010). It accepted the government’s

evidence in support of Mr. al-Hela’s detention despite the

government’s reliance on anonymous, multi-layered hearsay

after reviewing some of the material ex parte, in camera. Al

Hela, unclass. slip op. at 25–27. The District Court also

concluded that “the due process clause does not apply to

Guantanamo detainees.” Id. at 23 (citing Kiyemba v. Obama,

555 F.3d 1022, 1026–27 (D.C. Cir. 2009) (Kiyemba I), vacated

and remanded, 559 U.S. 131 (2010) (per curiam) (Kiyemba II),

judgment reinstated as amended, 605 F.3d 1046, 1047–48

(D.C. Cir. 2010) (per curiam) (Kiyemba III)).

Petitioner filed a timely appeal. As noted above, a panel

of this Court affirmed the District Court’s decision, and we

granted rehearing en banc to consider whether Mr. al-Hela “is

entitled to relief on his claims under the Due Process Clause.”

2021 Al-Hela Order, 2021 WL 6753656, at *1.

II.

“[T]he writ of habeas corpus . . . [is] a remedy available to

effect discharge from any confinement contrary to the

Constitution or fundamental law,” Preiser v. Rodriguez, 411

U.S. 475, 485 (1973), including a claim that the petitioner “is

being unlawfully detained by the Executive or the military.”

Id. at 486. The Due Process Clause provides that “[n]o person

shall be . . . deprived of life, liberty, or property, without due

process of law.” U.S. CONST. amend. V. Accordingly, the writ

can be employed to ensure that the petitioner “was not deprived

of his liberty without due process of law.” Felts v. Murphy,

201 U.S. 123, 129 (1906). See generally RANDY HERTZ &

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JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND

PROCEDURE § 2.3 (7th ed. 2015).

But whether the Due Process Clause applies to a habeas

petition filed by a foreign national detained at the Guantanamo

Bay military base as an alleged enemy combatant is a question

that the Supreme Court has not yet answered. As noted above,

Boumediene established that the Suspension Clause applies to

such a petitioner. See 553 U.S. at 771. The Suspension Clause

and the Due Process Clause have distinct functions under the

Constitution. The Suspension Clause regulates when Congress

or the Executive can suspend the writ altogether, so that,

“except during periods of formal suspension, the Judiciary will

have a time-tested device, the writ, to maintain the ‘delicate

balance of governance’ that is itself the surest safeguard of

liberty.” Id. at 745 (quoting Hamdi, 542 U.S. at 536 (plurality

opinion)). The Due Process Clause regulates “the procedural

contours of [the] mechanism” used to exact the deprivation of

liberty. Hamdi, 542 U.S. at 525 (plurality opinion).

The doctrinal distinction between the two Clauses can blur

upon detailed examination, at least in the Guantanamo habeas

context as they do here. In Boumediene, the Court explained

that the Suspension Clause, “except during periods of formal

suspension,” 553 U.S. at 745, requires a habeas or habeas-

substitute process that enables courts to undertake “a

meaningful review of both the cause for detention and the

Executive’s power to detain,” id. at 783. Because the Court

held that the system of review in place under the Detainee

Treatment Act of 2005 did not provide an avenue of

“meaningful review” of the Executive’s detention decisions,

the writ was deemed to have been suspended. Id. at 792. But

the Court also explained that the Suspension Clause has

another aspect, the requirement that the habeas or habeas-

substitute procedures afford the detainee “a meaningful

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opportunity to demonstrate that he is being held [unlawfully].”

Id. at 779. The Court did not determine what detention review

procedures are required by the Due Process Clause, see id. at

783–85, and therefore left open the question of what difference,

if any, exists when courts review Executive detention decisions

pursuant to the Due Process Clause rather than the “meaningful

opportunity” standard under the Suspension Clause.

Since Boumediene, nearly all detainees have either based

challenges to their detention solely upon an alleged violation

of the “meaningful review” and “meaningful opportunity”

required by the Suspension Clause or argued that “meaningful

review” and “meaningful opportunity” are essentially

equivalent to the requirements of the Due Process Clause. We

have thus had little occasion to address the distinction, if any,

between the two clauses. As a result, we have a robust

collection of precedent applying the Suspension Clause’s

“meaningful review” standard to Guantanamo detainees, see,

e.g., Khan v. Obama, 655 F.3d 20, 31 (D.C. Cir. 2011); Uthman

v. Obama, 637 F.3d 400, 403 n.3 (D.C. Cir. 2011); Al-Bihani,

590 F.3d at 875–76, 879, 880; Odah v. United States, 611 F.3d

8, 13–14 (D.C. Cir. 2010), but very little addressing the

requirements of the Due Process Clause, see Ali, 959 F.3d at

369–73.

The government asks us to reject Mr. al-Hela’s petition

because, even assuming the Due Process Clause applies, he

received all the process he is due. Our dissenting colleagues

take issue with the government’s argument, protesting that it

constitutes a change in position. See Rao Op. 9; Randolph Op.

3. But the government’s primary position has always been that

this Court need not determine whether the Due Process Clause

extends to Mr. al-Hela and other Guantanamo detainees. See

Panel Resp. Br. 63 (“Because al-Hela’s detention comports

with both substantive and procedural due process, this Court

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need not decide whether the Due Process Clause extends to

individuals such as al-Hela[.]”). And, as explained below, we

agree that this is the correct and most prudent course of action.

“[E]ven when a constitutional question must be joined,

courts must choose the narrowest constitutional path to

decision.” Ass’n of Am. R.Rs. v. United States Dep’t of Transp.,

896 F.3d 539, 544 (D.C. Cir. 2018) (citing Plaut v. Spendthrift

Farm, Inc., 514 U.S. 211, 217 (1995)). See generally United

States v. Hayman, 342 U.S. 205, 223 (1952); Ashwander v.

Tenn. Valley Auth., 297 U.S. 288, 347 (1936) (Brandeis, J.,

concurring); Burton v. United States, 196 U.S. 283, 295 (1905).

As the Supreme Court admonished long ago, we should

“never . . . anticipate a question of constitutional law in

advance of the necessity of deciding it,” nor should we

“formulate a rule of constitutional law broader than is required

by the precise facts to which it is to be applied.” Liverpool,

N.Y. & Phila. Steam-Ship Co. v. Comm’rs of Emigration, 113

U.S. 33, 39 (1885). We abide by that guidance here because

“[t]hese rules are safe guides to sound judgment. It is the

dictate of wisdom to follow them closely and carefully.” Id.

A holding that the Due Process Clause, assuming its

applicability, was satisfied by the habeas procedures employed

in this case would resolve solely those claims in this case and

those cases where a district court judge employed materially

indistinguishable mechanisms. By contrast, a holding that the

Due Process Clause does not apply to Guantanamo detainees

would resolve all potential future substantive and procedural

due process claims against all such detainees, regardless of the

nature of the substantive due process allegation or the

processes used by the district court judge to decide the merits

of any such petition. The non-applicability holding would also

apply beyond habeas petitions to foreclose all Due Process

Clause claims by non-citizens challenging the procedures or

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rulings of military tribunals at Guantanamo. Because “[i]t is

customary in deciding a constitutional question to treat it in

its narrowest form,” Engel v. Vitale, 370 U.S. 421, 437 (1962)

(Douglas, J., concurring), and because the former ground is the

narrower ground for decision, we are obliged to resolve the

case using that option, if possible. See Plaut, 514 U.S. at 217

(after analyzing the two different constitutional challenges

before it, the Court concluded that “the former is the narrower

ground for adjudication of the constitutional questions in the

case, and we therefore consider it first”).

Brushing aside these venerable jurisprudential principles,

Judge Rao and Judge Randolph would hold that the Due

Process Clause does not apply to noncitizens at Guantanamo.

See Rao Op. 1, 20; Randolph Op. 1–3. In their view, Johnson

v. Eisentrager, 339 U.S. 763 (1950), clearly established that the

Constitution does not extend to foreign citizens outside the

sovereign territory of the United States, Rao Op. 1, see

Randolph Op. 6, a clarity that seems to have eluded the

Supreme Court. See Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (distinguishing

Eisentrager by noting that “the Court has ruled that, under

some circumstances, foreign citizens . . . in ‘a territory’ under

the ‘indefinite’ and ‘complete and total control’ and ‘within the

constant jurisdiction’ of the United States []may possess certain

constitutional rights[,]” (quoting Boumediene, 553 U.S. at 755–

71)); see also Al Bahlul v. United States, 767 F.3d 1, 63, 65 &

n.3 (D.C. Cir. 2014) (en banc) (Kavanaugh, J., concurring in

the judgment in part and dissenting in part) (“As the

Government concedes, the Boumediene analysis leads

inexorably to the conclusion that the ex post facto right applies

at Guantanamo. It would be no more impracticable or

anomalous to apply the Article I, Section 9 ex post facto right

16

at Guantanamo than it is to apply the Article I, Section 9 habeas

corpus right at Guantanamo.”).

Through their efforts to find Eisentrager controlling, our

dissenting colleagues also recharacterize Circuit precedent by

isolating and relying on language from prior cases, divorcing

these quotes from the limited precedential holdings. For

example, Judges Rao and Randolph argue that, in Kiyemba I,

555 F.3d at 1026, we clearly held that the Due Process Clause

does not apply to foreign citizens detained at Guantanamo, a

clarity that has apparently eluded the government, see Resp.

Br. 34 (“[T]his Court has declined to decide the independent

applicability of the Due Process Clause and other constitutional

provisions [to Guantanamo detainees] on multiple occasions,

including while sitting en banc”) (emphasis added), and that

has similarly eluded prior panels of this court. See, e.g.,

Qassim v. Trump, 927 F.3d 522, 528, 530 (D.C. Cir. 2019)

(collecting cases) (clarifying that “the issue on appeal in

Kiyemba [I] was the narrow question of what remedy could be

given once the government conceded that it could not lawfully

hold [certain] detainees [in Guantanamo],” as “[w]e would not

have repeatedly reserved such Due Process Clause questions if

they had already been conclusively answered in Kiyemba [I]”);

Ali, 959 F.3d at 368 (holding that “[t]he district court’s decision

that the Due Process Clause is categorically inapplicable to

detainees at Guantanamo Bay was misplaced”). Our dissenting

colleagues’ reliance on additional Circuit precedent concerning

Guantanamo fails for similar reasons. See, e.g., Al-Madhwani

v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011) (abstaining

from holding that the Due Process Clause does not apply at

Guantanamo, because “[e]ven assuming” that the Clause

applies, the record showed any error would be harmless); Rasul

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

(declining to “decide whether Boumediene portends

17

application of the Due Process Clause . . . to Guantanamo

detainees”).

As much as our dissenting colleagues would like us to

resolve the Eisentrager debate in one direction or the other,

deciding the applicability of the Due Process Clause is

unnecessary here, where, as explained below, we find that the

habeas procedures Mr. al-Hela received actually satisfy what

the Clause would require. Even when the Supreme Court has

recognized that the “logic of [its] cases” likely provides the

answer to whether a liberty interest protected by the Due

Process Clause is implicated, it has declined to so hold where,

even assuming the right applied, it was not violated in that

particular instance. See Cruzan v. Dir., Missouri Dep’t of

Health, 497 U.S. 261, 279–87 (1990). Indeed, the Court

regularly declines to decide whether a constitutional right

applies where, even assuming that it does, there is no

constitutional error because the challenged actions comported

with the right (or any such error was harmless). See, e.g., NASA

v. Nelson, 562 U.S. 134, 147 & n.10, 148–54 (2011) (assuming

without deciding that the Constitution protects a right to

informational privacy, plaintiffs’ claim failed because the

challenged questionnaire did not violate any such right);

Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 619–20

(1992) (despite noting its prior holding that States of the Union

are not “persons” protected by the Due Process Clause, the

Court assumed that the Clause did apply to Argentina and held

the suit met the due process requisites of personal jurisdiction);

Rushen v. Spain, 464 U.S. 114, 118 n.2, 119–20 (1983) (where

state conceded that juror’s ex parte communication with trial

judge was constitutional error, the Court assumed without

deciding that the defendant’s constitutional rights were

18

implicated but found any error harmless because of the absence

of prejudice).

If that minimalist jurisprudential path is satisfactory to the

Court, then it must certainly be good enough for us. Judge Rao

seeks to reach conclusions about the extraterritorial application

of the entire Constitution with respect to foreign citizens writ

large. See Rao Op. 1 (“[A]liens outside the territorial United

States do not possess constitutional rights[.]”). But even the

government disagrees with such an approach and “urge[s] the

Court to decline to address the broader issue” as doing so

“would not affect the outcome here and would require

resolution of sensitive and complex constitutional questions[.]”

Resp. Br. 24. Out of respect for “the cardinal principle of

judicial restraint,” we take the narrower approach. PDK Labs.

Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,

concurring in part and concurring in the judgment).

III.

We begin with Mr. al-Hela’s procedural due process

claims. He makes four challenges to the District Court’s

discovery and evidentiary procedures. He challenges: (1) the

use of the preponderance of the evidence standard to determine

whether he was an enemy combatant; (2) the application of the

presumption of regularity standard to the government’s

evidence; (3) the use of hearsay to justify his detention; and (4)

his inability to personally review most all of the classified

evidence against him and the District Court’s ex parte, in

camera review of the highly sensitive classified evidence

against him. Pet’r Br. 19.

The government correctly points out that Mr. al-Hela did

not raise the first two arguments before the panel, Resp. Br. 60,

19

which is grounds for forfeiture on rehearing, see United States

v. Whitmore, 384 F.3d 836, 836–37 (D.C. Cir. 2004) (per

curiam); Price v. Barry, 53 F.3d 369, 371 (D.C. Cir. 1995) (per

curiam). But given that we granted rehearing to determine

whether the Due Process Clause entitles Petitioner to relief, we

will exercise our discretion in this instance to consider all of

Mr. al-Hela’s due process arguments on rehearing. See Fox

Television Stations, Inc. v. FCC, 293 F.3d 537, 540 (D.C. Cir.

2002) (with respect to enforcing forfeiture of arguments that

were not raised before the panel at the rehearing stage, “our

practice is in fact more practical than rigid”).

A.

Mathews v. Eldridge, 424 U.S. 319 (1976), is the leading

authority for deciding what procedural protections are required

to comport with the Due Process Clause. Id. at 335. Mathews

explains that “‘[d]ue process,’ unlike some legal rules, is not a

technical conception with a fixed content unrelated to time,

place and circumstances.” Id. at 334 (alteration in original)

(quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895

(1961)). Accordingly, the analysis “is flexible and calls for

such procedural protections as the particular situation

demands.” Id. (quoting Morrissey v. Brewer, 408 U.S. 471,

481 (1972)). The Court incorporated those concepts in a

venerated three-factor framework examining:

First, the private interest that will be affected by

the official action; second, the risk of an

erroneous deprivation of such interest through

the procedures used, and the probable value, if

any, of additional or substitute procedural

safeguards; and finally, the Government’s

interest, including the function involved and the

fiscal and administrative burdens that the

20

additional or substitute procedural requirement

would entail.

Id. at 335.

Even though Mathews involved a deprivation of property,

the Court has used the Mathews framework on multiple

occasions to adjudicate procedural due process claims

involving deprivations of liberty, such as juvenile and criminal

pretrial detention and involuntary civil commitment. See, e.g.,

Heller v. Doe, 509 U.S. 312, 330–31 (1993);

Zinermon v. Burch, 494 U.S. 113, 127–28 (1990); United

States v. Salerno, 481 U.S. 739, 746 (1987);

Schall v. Martin, 467 U.S. 253, 274–75 (1984); Addington v.

Texas, 441 U.S. 418, 425 (1979). (Curiously, notwithstanding

this precedent, Judge Randolph asserts that the Mathews

framework was never intended to apply to deprivations of

liberty and thus cannot be employed here. See Randolph Op.

7, 8 & n.10.).

The Hamdi plurality used the Mathews framework to

determine whether the mechanism used to review whether a

United States citizen detained as an enemy combatant accorded

with due process. 542 U.S. at 529–39. As the narrowest

opinion in favor of granting the detainee some relief, the Hamdi

plurality opinion is arguably controlling, see Boumediene, 553

U.S. at 814 (Roberts, C.J., and Scalia, Thomas & Alito, JJ.,

dissenting) (referring to the Hamdi plurality as the “controlling

opinion”), see also Doe v. Mattis, 928 F.3d 1, 14 (D.C. Cir.

2019) (treating the Hamdi plurality as binding); Al-Bihani, 590

F.3d at 872 (same), and, even if not, it is certainly persuasive

authority on the due process issue. See generally Marks v.

United States, 430 U.S. 188, 193 (1977); United States v. Epps,

707 F.3d 337, 349 (D.C. Cir. 2013) (describing our circuit’s

application of the Marks rule). (All further references and

21

citations to Hamdi are to the plurality opinion unless otherwise

noted.). For this reason, we must consider Hamdi, and in doing

so, we can glean several lessons from its analysis.

First, Hamdi teaches that “substantial interests lie on both

sides of the scale” in the context of enemy combatant

detention. 542 U.S. at 529. The interest in freedom from

detention is a fundamental liberty interest, and even though

Hamdi involved a U.S. citizen rather than a foreign national, it

cannot be gainsaid that Mr. al-Hela’s liberty interest is also

substantial. See Rasul v. Bush, 542 U.S 466, 480–82

(2004). “On the other side of the scale are the weighty and

sensitive governmental interests in ensuring that those who

have in fact fought with the enemy during a war do not return

to battle against the United States.” Hamdi, 542 U.S. at

531. Given the compelling interests on both sides, the Court

focused on achieving the “proper constitutional balance” by

zeroing in on whether the procedures used created a risk of

erroneous detention that was “unacceptably high,” and whether

the additional procedures proffered by the detainee were

unacceptable either because of their limited value in preventing

error or because of the burdens they would place on the

Executive. Id. at 532–33 (citing Mathews, 424 U.S. at

335). We believe it incumbent upon us to follow that

framework to determine whether the habeas procedures

afforded Mr. al-Hela satisfy due process. (Hamdi itself belies

Judge Randolph’s suggestion, (Randolph Op. 7–8, citing Weiss

v. United States, 510 U.S. 163, 177 (1994)), that the Court has

categorically refused to use Mathews to assess procedural due

process claims in contexts affected by military exigency or

national security. Weiss itself involved the courts-martial

justice system developed by Congress rather than, as here, a

habeas petition in an Article III court. We also reject Judge

Randolph’s invitation to rely upon an immigration case,

(Randolph Op. 7, citing DHS v. Thuraissigiam, 140 S. Ct. 1959

22

(2020)), when, as the Court explained, “Boumediene[] is not

about immigration at all[,]” Thuraissigiam, 140 S. Ct. at

1981.).

Another word on our approach before turning to Mr. al-

Hela’s claims. While Hamdi applied the three-factor test from

Mathews, the plurality summarized its due process holding as

requiring “meaningful opportunity to contest” and the right to

“challenge meaningfully” the Executive’s enemy combatant

finding. Id. at 509, 535 (emphases added). Describing the level

of rigor needed to satisfy due process using the adjective

“meaningful” was not a breakthrough. Indeed, Mathews itself

quoted earlier due process precedent and equated due process

with a “meaningful” opportunity to be heard. See Mathews,

424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545,

552 (1965)) (“The fundamental requirement of due process is

the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’”). Further examples abound. See, e.g.,

LaChance v. Erickson, 522 U.S. 262, 266 (1998) (“The core of

due process is the right to notice and a meaningful opportunity

to be heard.”); Jackson v. Virginia, 443 U.S. 307, 314 (1979)

(due process mandates “that a person cannot incur the loss of

liberty for an offense without notice and a meaningful

opportunity to defend”); Fuentes v. Shevin, 407 U.S. 67, 80

(1972) (“[N]otice and an opportunity to be heard must be

granted at a meaningful time and in a meaningful manner.”)

(internal quotation marks omitted); Boddie v. Connecticut, 401

U.S. 371, 377 (1971) (“[D]ue process requires, at a minimum,

that absent a countervailing state interest of overriding

significance, persons forced to settle their claims of right and

duty through the judicial process must be given a meaningful

opportunity to be heard.”).

Thus, it is quite notable that Boumediene similarly used

“meaningful” to describe the level of review compelled by the

23

Suspension Clause: “[T]he privilege of habeas corpus entitles

the prisoner to a meaningful opportunity to demonstrate that he

is being held [unlawfully].” 553 U.S. at 779 (emphasis added);

see also id. at 815 (Roberts, C.J., dissenting) (summarizing the

majority as holding that the Suspension Clause grants a

Guantanamo detainee a “meaningful opportunity” to

demonstrate he is being held unlawfully). As a result, the

review required by the Due Process and Suspension Clauses is

similar in scope in the specific circumstance of an alleged

enemy combatant’s challenge to wartime detention. Compare

Hamdi, 542 U.S. at 534 (finding due process is satisfied where

the review mechanism sufficiently mitigates the risk of an

erroneous deprivation of liberty and does not utilize procedures

that fail to add value or unduly burden the government), with

Boumediene, 553 U.S. at 785 (finding habeas substitute

procedures were inadequate under the Suspension Clause

because “there [was] considerable risk of error in the tribunal’s

findings of fact”).

Context also explains why the Suspension and Due

Process Clauses operate congruently in Guantanamo detainee

habeas cases. In the most common applications of the writ, the

district judge reviews a criminal conviction, where there is

already a well-developed body of caselaw prescribing the

requirements of due process, confrontation of witnesses,

effective assistance of counsel and every other constitutional

guarantee applicable to the proceeding employed by the

Executive to justify the detention. There, “meaningful review”

and “meaningful opportunity” pursuant to the Suspension

Clause require the court to use factfinding and decision-making

procedures that will ensure that the conduct of the criminal trial

comported with those predetermined constitutional standards.

But prior to Boumediene, there was no similarly detailed set of

constitutionally-tested procedures for enemy combatant

detention proceedings, such as the combatant status review

24

tribunal (CSRT) used in this case. Furthermore, the

government has not sought denial of the writ by requesting

deference to the CSRT findings or by arguing that the CSRT

mechanism comported with due process. Instead, as further

explained infra at 28–31, the government has abdicated

reliance on the CSRT findings and acceded to de novo review

of the legality of detention via the habeas proceedings. Thus,

assuming the Due Process Clause applies to Guantanamo

detainees, the habeas proceedings are not ascertaining whether

a prior detention determination (the CSRT) satisfied due

process—the habeas proceeding itself must satisfy due process.

In other words, the habeas proceeding that must provide the

“meaningful opportunity” to challenge the legality of detention

guaranteed by the Suspension Clause, Boumediene, 553 U.S. at

779, has also become the proceeding that must provide the

“right to notice and a meaningful opportunity to be heard”

guaranteed by the Due Process Clause, LaChance, 522 U.S. at

266, assuming due process applies.

In this case, the District Court measured its procedures

only against the Suspension Clause, because it ruled that the

Due Process Clause was not applicable to Mr. al-Hela. That

said, as explained below, the District Court’s application of

Boumediene’s “meaningful opportunity” and “meaningful

review” standards under the Suspension Clause was thorough

and carefully calibrated to minimize the risk of error without

unduly burdening the Executive. For this reason, we hold that

the procedures employed by the District Court in its effort to

satisfy the Suspension Clause also provided whatever process

would be required to satisfy Mathews’s context-dependent Due

Process Clause framework. Given the similarity between the

procedural protections afforded by both clauses in this

particular context, we perform the Mathews/Hamdi analysis for

each of Mr. al-Hela’s procedural due process claims. (The

distinctions Judge Randolph identifies between this case and

25

Hamdi, see Randolph Op. 4–5, do not render Hamdi inapposite.

Because we assume without deciding that the Due Process

Clause applies, we review to determine whether the present

circumstances satisfy the content of the Due Process Clause

right. Thus, we use Hamdi as a benchmark for the most robust

articulation of the standard to which a detainee in Mr. al-Hela’s

position could be entitled.). With this context, let’s press

forward.

B.

Mr. al-Hela challenges the preponderance of evidence

standard, the presumption of regularity, admission of hearsay,

and access to classified evidence. We recount the facts

pertinent to each of these contentions together because the

issues involving these claims are intertwined.

Under the Case Management Order, the government

presents its evidence supporting detention in a Factual Return,

supported by exhibits. See Case Management Order §

I.A. The detainee responds to the government’s allegations in

a Traverse. Id. § I.G. The District Court then determines

whether to grant judgment on the pleadings or to hold an

evidentiary hearing. Id. § III.B. The Case Management Order

provides that, upon consideration of the merits, the judge “may

accord a rebuttable presumption of accuracy and authenticity

to any evidence the government presents as justification for the

petitioner’s detention.” Id. § II.B. The petitioner must be given

the opportunity to rebut the presumption with respect to any or

all of the government’s documents. Id.

The District Court handled classified information within

the framework of the Case Management Order and a Protective

Order. The Protective Order specified that information

properly designated as classified could not be disclosed to

26

unauthorized persons. Dkt. 138, Protective Order §§ I.C., I.D

(hereinafter “Protective Order”). Accordingly, classified

information could only be disclosed to persons having a

security clearance at the appropriate level and a “need to know”

the classified information. Id. § I.D., ¶ 28; see also Exec. Order

No. 13,526, § 4.1(a)(3), 75 Fed. Reg. 707, 720 (Dec. 29, 2009)

(“A person may have access to classified information provided

that . . . the person has a need-to-know the information.”). The

Executive Order defines “need-to-know” as a determination

made within the executive branch “that a prospective recipient

requires access to specific classified information in order to

perform or assist in a lawful and authorized government

function.” Exec. Order No. 13,526, 75 Fed. Reg. at 729.

Mr. al-Hela’s lawyers presumably had a “need to know”

classified information relating to him, and the issues raised by

his petition. As long as they had adequate security clearances,

his attorneys had presumptive access to the government’s

classified filings and any classified discovery or evidence

proffered by the government. In contrast, because Mr. al-Hela

had no security clearance, he presumptively had no access to

classified filings, discovery, or evidence.

However, the governing orders also had exceptions to the

presumed practice. An amendment to the Protective Order

granted an exception for any statements made by Mr. al-Hela

which had been designated as classified. Dkt. 216; see also

Dkt. 215 at 6. Mr. al-Hela’s counsel could request to disclose

those statements to him, and if the government did not agree to

declassify the statement or provide Mr. al-Hela with a

classified substitute or redacted version that was amenable to

him, the parties could ask the District Court to resolve the

dispute. Dkt. 216; Dkt. 215 at 13. Cutting in the other

direction, the Case Management Order provided that the

government could move for an exception to disclosure. Case

27

Management Order § I.F. Thus, if the government believed

that classified information was highly sensitive and should not

be disclosed to Mr. al-Hela’s counsel regardless of security

clearances, the government could ask the District Court to

review that highly sensitive classified information in camera.

Id. The District Court would then determine whether the

government had presented sufficient justification to preclude

disclosure to Mr. al-Hela’s counsel. Id. The District Court

would hear any objections from Mr. al-Hela, and then hear any

particularized arguments by the government ex parte.

The Case Management Order also addressed the admission

and consideration of hearsay at the merits stage, specifying that

the judge “may admit and consider hearsay evidence that is

material and relevant to the legality of the petitioner’s

detention.” Case Management Order § II.C. However, the

Order made the admission and consideration of hearsay

evidence contingent on the showing that it “is reliable and that

the provision of nonhearsay evidence would unduly burden the

movant or interfere with the government’s efforts to protect

national security.” Id. Like the procedure used for the

presumption of regularity, the Order stated that a party

opposing admission of hearsay must be given an “opportunity

to challenge the credibility of, and weight to be accorded, such

evidence.” Id.

The Case Management Order further provides that after

the close of discovery, either party can file a motion for

judgment on the record. Id. § III.A. If the District Court

concludes that material issues of fact preclude a ruling on the

papers, then it must hold an evidentiary hearing at which the

government bears the burden of proving by a preponderance of

28

the evidence that the petitioner is an enemy combatant and

lawfully detained. Id. §§ II.A, III.B.

Those are the procedures in the abstract. Here is how they

played out in this case.

As mentioned, Mr. al-Hela filed his petition in 2005

asserting that he was unlawfully detained. In late 2010,

following the entry of the Case Management Order, the

government filed its Factual Return setting forth the asserted

legal and factual basis justifying his detention. Much of the

information in the Return’s narrative, and many of the 63

attached exhibits, contained classified information and were

therefore not accessible to Mr. al-Hela. See Abdul-Rahman Al-

Hela v. Obama, No. 05-cv-1048, 2016 WL 2771804, at *1

(D.D.C. May 13, 2016). Instead, the government prepared an

unclassified summary that provided Mr. al-Hela with a broad

overview of most of the facts and allegations in the

government’s Return. Id. However, Mr. al-Hela’s counsel had

access to the entirety of the 2010 Factual Return. Id.

Mr. al-Hela filed a motion for access to the Factual Return,

asserting that he did not have adequate notice of the charges

against him and a meaningful opportunity to respond. Id. The

District Court denied the motion, ruling that the government

had shown that further disclosure would harm national security

by revealing intelligence sources and methods. Id. at *2–3.

Further, the District Court ruled that the unclassified summary

disclosed to Mr. al-Hela, in conjunction with the disclosures to

his lawyers, allowed him “the requisite opportunity to contest

his detention.” Id. at *3.

In the meantime, the government produced exculpatory

evidence to Petitioner and responded to his discovery requests,

producing over 500 additional documents. Again, many of

29

those documents were intelligence reports and other material

containing classified information, so they were disclosed to Mr.

al-Hela’s counsel, but not to him. However, there was some

material that the government did not want to disclose even to

counsel, and the government filed motions for exceptions to

disclosure with respect to that material. Some of the

government’s motions concerned potentially exculpatory

evidence—the government contended that the material was not

exculpatory, but it nevertheless requested an in camera, ex

parte review and ruling from the District Court to ensure

compliance with its discovery obligations. In at least one

instance, the District Court disagreed with the government,

deemed the material exculpatory, and ordered its disclosure.

See Resp. Br. Add. 4–5; Ex Parte Order of May 9, 2016.

Most of the government’s requests for in camera, ex parte

review involved inculpatory classified information that the

government considered too sensitive to disclose to Mr. al-

Hela’s counsel, even via classified substitute. The District

Court made clear that it did not wish to consider any

inculpatory evidence going to the merits on an ex parte basis

unless absolutely necessary. As such, the District Court

pressed the government on each of its requests for exception.

In a lengthy series of ex parte hearings and orders spanning

several months, the District Court denied many of the motions

for exception. Instead, the District Court ordered the

government to prepare classified substitute language for the

highly sensitive portions of the documents and to produce each

document with as few redactions as possible. The District

Court required that the government provide detailed

justifications for each redaction in every document, which were

sometimes rejected, resulting in an order to eliminate certain

redactions so that Mr. al-Hela’s counsel would have adequate

context to assess the information in the documents. The

District Court scrutinized the substitutes with equal care,

30

sometimes ordering the government to create more fulsome

versions. See Ex Parte Hr’g Trs. of Apr. 9, 2015, Apr. 14, 2015

& Apr. 28, 2015; Ex Parte Orders of June 30, 2015, Aug. 25,

2015, Dec. 17, 2015, Apr. 19, 2016, May 9, 2016 (two orders),

May 27, 2016, Dec. 23, 2016 & Jan. 22, 2018. See generally

Resp. Br. Add. 4–5. As a result of this back and forth, the

government withdrew its reliance on some documents

altogether, apparently because it did not wish to produce the

more robust classified substitute or the less-redacted version of

the document to Petitioner’s counsel. Ex Parte Hr’g Trs. of

Apr. 9, 2015, Apr. 14, 2015 & Apr. 28, 2015; see also Dkt 413-

1. In addition, the government agreed not to rely upon redacted

material in any documents to support detention. Dkt. 435 at 5;

Dkt. 441 at 6.

In any event, the upshot is that the government presented

only a handful of documents in support of Mr. al-Hela’s

detention to the District Court completely ex parte, and the

government only did so after the District Court found that the

material being withheld was especially sensitive and that its

disclosure to counsel—even in redacted form with substitute

language—would risk harm to national security. Ex Parte

Orders of May 9, 2016 & May 27, 2016. With respect to most

of the documents the government sought to exempt from

disclosure, the District Court ordered them disclosed with

adequate substitute language for the highly sensitive

information and with as few redactions as possible. And for

context, recall that the documents subject to the motions for

exemption from disclosure were a small subset of the hundreds

of documents that were produced to counsel.

After the close of discovery, the government filed an

Amended Factual Return that functioned as a compilation of

the evidence upon which it intended to rely at the merits

hearing to support detention. Per its standard practice in these

31

cases, the government did not rely solely upon the CSRT’s

findings to support detention, and the government did not ask

the District Court to defer to any findings or rulings of the

Tribunal when adjudicating Mr. al-Hela’s petition. See Oral

Arg. Tr. 44, 83, 94. See generally Al-Adahi v. Obama, 613 F.3d

1102, 1105 n.2 (D.C. Cir. 2010) (observing that the

government followed this practice). Petitioner then filed his

Traverse, setting forth his legal argument and evidence in

support of the contention that he is unlawfully detained. Each

party filed motions for judgment on the record, which

functioned essentially as pre-trial briefs. The District Court

then held a hearing on the merits of the petition, at which Mr.

al-Hela was the only live witness. The remaining evidence

presented by the government and Petitioner was proffered via

affidavit and documentary exhibits. Following post-trial

briefing, the District Court denied the petition in a written

decision in which it applied the presumption of regularity to the

government’s evidence, admitted and credited some hearsay

presented by each party, and ruled that the government had

proved by a preponderance of the evidence that Mr. al-Hela is

an enemy combatant and is therefore lawfully detained.

C.

Relying principally on Addington v. Texas, 441 U.S. at

423, 427, 433, Mr. al-Hela claims that use of the preponderance

of the evidence standard of proof to determine whether he is an

enemy combatant violates due process. In Addington, the

Court applied the three factors from Mathews to conclude that

the preponderance of the evidence standard in civil

commitment proceedings—for those alleged to be mentally ill

and dangerous—violates due process. Id. at 425–32. Instead,

32

the Court held that the clear and convincing evidence standard

must govern. Id. at 432–33.

For several reasons, we find Addington and its progeny

distinguishable. See generally Foucha v. Louisiana, 504 U.S.

71 (1992). We acknowledge that the private interest in freedom

from involuntary detention as an enemy combatant is akin to

an individual’s interest in avoiding confinement in a mental

hospital, and the higher standard of proof also reflects the

importance we place on human liberty. See Addington, 441

U.S. at 425–26. And of course, the use of the more stringent

standard of proof would reduce the risk of an erroneous enemy

combatant determination, just as the clear and convincing

evidence standard reduces the risk that a person who is not

mentally ill or dangerous will be erroneously committed. But

that is where the similarities end.

First, Addington concluded that the state interest is not

furthered by use of the preponderance standard for civil

commitment. At the time, every state but one used a higher

standard than preponderance of the evidence, thus reflecting

the prevailing state interest in protecting individual rights of the

mentally ill and those who periodically experience emotional

difficulties. Id. at 426–27. By contrast, the pertinent U.S.

military regulations, which are domestic law based upon

internationally recognized law of war principles, see Al Warafi

v. Obama, 716 F.3d 627, 629 (D.C. Cir. 2013); Al-Bihani v.

Obama, 619 F.3d 1, 13–14 (D.C. Cir. 2010) (Mem.)

(Kavanaugh, J., concurring in the denial of rehearing en banc),

have long provided that enemy combatant status is to be

determined by the preponderance of the evidence. U.S. Dep’ts

of the Army, the Navy, the Air Force, and the Marine Corps,

Army Regulation 190–8, Enemy Prisoners of War, Retained

Personnel, Civilian Internees and Other Detainees ch. 1, § 1–

6(e)(9) (Oct. 1, 1997). These regulations reflect the state

33

interest in supporting the preponderance standard in this

context, in a way that domestic law did not support the state

interest in applying the preponderance standard in the civil

commitment context.

Most importantly, the risk of harm analysis is quite

different here than in the civil commitment context. Addington

rejected the preponderance standard because that standard

allows litigants to “share the risk of error in roughly equal

fashion,” 441 U.S. at 423, and “[t]he individual should not be

asked to share equally with society the risk of error when the

possible injury to the individual is significantly greater than

any possible harm to the state,” id. at 427. Given “the particular

dangers of terrorism in the modern age,” the possible harm to

the state if an enemy combatant is erroneously released is much

greater than the possible harm posed by the typical person

subject to a civil commitment proceeding. Boumediene, 553

U.S. at 752; see also id. at 797 (“The law must accord the

Executive substantial authority to apprehend and detain those

who pose a real danger to our security.”). For similar reasons,

we are not persuaded that cases mandating the clear and

convincing evidence standard in the deportation and

denaturalization contexts are forceful analogues here because

there was no consideration in those cases that the imposition of

a higher standard of proof could create a significant risk to

national security. See Woodby v. INS, 385 U.S. 276, 285–86

(1966); Nowak v. United States, 356 U.S. 660, 663–64 (1958).

With so much at stake for national security, we conclude

that it is appropriate that Mr. al-Hela, a foreign national

detained as an enemy combatant and suspected of substantially

supporting designated terrorist organizations, share the risk of

error nearly equally with U.S. society. Cf. Boumediene, 553

U.S. at 766–71 (ruling that whether petitioners were U.S.

citizens was relevant to the Suspension Clause analysis). Our

34

conclusion is buttressed by the fact that domestic law interprets

the preponderance of the evidence standard as consistent with

the requirements of the law of war for this type of

determination. Army Regulation 190–8 at ch. 1, §§ 1–1, 1–

6(a), (e)(9); see Al Warafi, 716 F.3d at 629. We therefore

uphold the District Court’s use of the preponderance of the

evidence standard as consistent with the requirements of the

Due Process Clause.

D.

As noted above, the Case Management Order specified

that the judge “may accord a rebuttable presumption of

accuracy and authenticity to any evidence the government

presents as justification for the petitioner’s detention.” Case

Management Order § II.B. In its opinion on the merits, the

District Court ruled that “intelligence reports and interrogation

reports are entitled to the presumption of regularity.” Al Hela,

unclass. slip op. at 22. Mr. al-Hela contends that these

government documents were not worthy of such deference and

that placing the burden on him to rebut the presumption of

regularity denied him due process. We are not persuaded.

“The presumption of regularity supports the official acts

of public officers and, in the absence of clear evidence to the

contrary, courts presume that they have properly discharged

their official duties.” Nat’l Archives & Recs. Admin. v. Favish,

541 U.S. 157, 174 (2004) (internal quotation marks and citation

omitted). As used in the Case Management Order and applied

by the District Court, the presumption of regularity assumes

that the government’s documents “accurately identif[y] the

source and accurately summarize[] [the source’s] statement,

but [] implies nothing about the truth of the underlying non-

government source’s statement.” Latif v. Obama, 677 F.3d

1175, 1180 (D.C. Cir. 2012). This presumption can be rebutted

35

if a petitioner demonstrates internal inconsistencies or

inconsistencies with other evidence. Id. at 1185–86.

Applying the presumption of regularity did not violate due

process. Unlike the hearsay exception for official government

records, see FED. R. EVID. 803(8), the presumption of regularity

does not go to the truth of any statement contained in the

government’s documents, but merely to whether the contents

of the statements were accurately recorded. As such, there was

not a significant risk that use of the presumption of regularity

increased the chance of error, as would have been the case if

this was a presumption that the statements in the documents

were actually true. The District Court scrutinized the

government’s documents and provided opportunities for Mr.

al-Hela to raise concerns about the authenticity or accuracy of

the documents. See Al Hela, unclass. slip op. at 24–28

(detailing the evaluation of the evidence).

Returning explicitly to the Mathews calculus, the

government interest in the application of the presumption is

quite significant. For good reason. The administrative burdens

that would accompany having to authenticate and lay a

foundation for the introduction of each of the dozens of

intelligence reports and other documents at issue would require

testimony from the documents’ authors. See Latif, 677 F.3d at

1179 (eliminating the presumption of regularity “would subject

all such documents to the he-said/she-said balancing test of

ordinary evidence”). Those authors—members of the military,

intelligence, and diplomatic communities located all over the

world—would need to be hauled into court to testify as to

whether a document was accurately recorded. See FED. R.

EVID. 901. How often is that additional process likely to

uncover an error of material proportions? Like the public

records exception to the rule against hearsay, the presumption

of regularity can be justified on “the assumption that a public

36

official will perform his duty properly and the unlikelihood that

he will remember details independently of the record.” 1972

Adv. Cmte. Note to Fed. R. Evid. 803, Note to paragraph (8).

We acknowledge that records are not infallible, and Mr. al-

Hela and amicus point out instances of transcription and other

errors that have been discovered. But we must weigh the

likelihood that any material error will be discovered against the

burden of bringing every single document’s author into court.

On balance, these burdens far outweigh the probable value of

eliminating the presumption of regularity altogether,

particularly since the presumption is rebuttable. That is enough

to convince us that abandoning the presumption of regularity is

not appropriate under Mathews.

Accordingly, we decline Mr. al-Hela’s invitation to strike

down the presumption of regularity as violative of due process.

E.

Next, Petitioner contends that the broad admission of

hearsay in his case violated due process, particularly because,

in many documents the identity of the declarant was redacted

or the documents contained multiple layers of hearsay.

These contentions face serious headwinds from Supreme

Court precedent. It is well settled that the requirements of due

process are flexible and highly dependent on context. Hence,

whether due process mandates the use of the Federal Rules of

Evidence in a civil or criminal trial is not dispositive of whether

the same is required in this quite different context. See, e.g.,

Morrissey, 408 U.S. at 481–89 (due process did not prohibit

admission of letters, affidavits and other documents in parole

revocation hearing even though not admissible in a criminal

trial). The Court reiterated this message in Hamdi, observing

that the exigencies of war “may demand that” enemy-

37

combatant proceedings “be tailored to alleviate their

uncommon potential to burden the Executive at a time of

ongoing military conflict.” 542 U.S. at 533. For instance, it

observed that “[h]earsay . . . may need to be accepted as the

most reliable available evidence from the Government in such

a proceeding.” Id. at 533–34. The exigencies that Hamdi’s

context-specific approach highlighted may differ now from

what they were in the immediate aftermath of September 11,

2001. But, at a minimum, the evolving context reinforces

Hamdi’s premise that the admission of hearsay in enemy

combatant proceedings is compatible with the Due Process

Clause, so long as the district court carefully assesses whether

it is indeed “the most reliable available evidence.” Id. at 534.

The District Court carefully evaluated all the evidence

proffered by the government and assessed the reliability of all

hearsay. Cognizant of its responsibility to ensure that the

evidence relied upon for detention was reliable, the District

Court excluded or refused to rely upon some of the hearsay

statements proffered by the government after concluding that

they were unreliable or insufficiently corroborated. Al Hela,

unclass. slip op. at 28, 41–42. The District Court made

multiple reliability findings throughout its opinion, see id. at

27–28, 34, 39–42, 45, 50, 58, 65, 72–73, 75, and where the

District Court chose to rely on certain hearsay statements over

others, it explained its reasoning for finding that evidence more

reliable. See id. at 44, 46. This is the type of rigorous

evidentiary analysis we expect from the District Court. See

Odah, 611 F.3d at 14. Both in its opinion and in the numerous

hearings and rulings regarding discovery and disclosure, the

District Court demonstrated that it meticulously reviewed all

the evidence proffered by the government to compare and

38

contrast the various hearsay statements and determine which

statements were corroborated and reliable.

These actions, taken as a whole, “sufficed to provide

meaningful protections of due process interests in adequate

notice and accurate decision making, and prevent government

overreach.” Fares v. Smith, 901 F.3d 315, 319 (D.C. Cir.

2018). As a result of such careful and discerning review of the

documents containing hearsay, as evidenced by the District

Court’s numerous reliability findings, we find no due process

violation related to the admission of hearsay.

We have sought, within the limits of a substantially

classified record, to describe the “rigorous evidentiary

analysis” in which the District Court engaged because that is

what provides the grounding for our considered conclusion that

“th[o]se actions, taken as a whole,” satisfied the Mathews due

process balancing. Op., supra at 36, see id. at 25–39. All we

are saying is that while seeking to craft case management

procedures that satisfied the Suspension Clause, the District

Court created a mechanism, as implemented here, that also

satisfies the Due Process Clause. It is hardly surprising that

procedures designed to provide “meaningful review” pursuant

to the Suspension Clause would coincidentally provide a

“meaningful opportunity to be heard” as required by the Due

Process Clause and compatible with Hamdi. Indeed, when

drafting the Case Management Order, the District Court

indicated that it was “proceeding with the caution” advised by

Hamdi, Dkt. 155, Case Management Order Introduction

(quoting Hamdi), and it adopted habeas procedures very

similar to those approved in Hamdi, citing the Hamdi plurality

no less than seven times in the Order. See Dkt. 155, Case

Management Order §§ I.A., I.E.2., I.G., II.B., II.C., 1.F.; Dkt.

172; Case Management Order § 1.G. We therefore hold,

assuming the Due Process Clause applies, that Mr. al-Hela’s

39

procedural due process rights were not violated. The panel

rejected Mr. al-Hela’s Suspension Clause claims and those

claims are not before us on rehearing. As to the criticism that

we have “appl[ied] a watered-down version of the Due Process

Clause[,]” Rao Op. 24, we note that we proceeded with the

same caution and in the same manner as the plurality in Hamdi,

which hardly employed a “watered-down” application of the

Clause.

F.

Mr. al-Hela makes two final due process challenges related

to the District Court’s procedures for handling access to

classified information. He contends that his inability to review

classified information violated due process because he was not

given adequate notice of the charges against him and therefore

could not adequately respond. Further, and most troublingly,

he contends that the ex parte review of government evidence

by the District Court violated due process.

The government argues that our consideration of this issue

is wholly governed by Al Odah v. United States, 559 F.3d 539

(D.C. Cir. 2009) (per curiam). But Al Odah involved what

discovery the petitioner was entitled to prior to filing his

Traverse. See id. at 542–43. Compare Odah, 611 F.3d at 11

(appeal after hearing on the merits), with Al Odah, 559 F.3d at

542–43. By contrast, this case implicates not just whether the

detainee’s counsel has access prior to filing the Traverse, but

also whether counsel will ever have the opportunity to see the

document prior to or during the merits determination. This

distinction is critical. Procedures whereby all the

government’s evidence is not disclosed in advance of trial are

commonplace, including in almost all criminal trials. See, e.g.,

FED. R. CRIM. P. 16(a)(2) (defendant not entitled to pretrial

discovery of prosecution witnesses’ statements). However,

40

procedures whereby neither the person affected by the

government’s proposed action, nor his counsel, are permitted

to view all the government’s evidence during the merits

determination are rare, and any such procedures raise more

serious due process concerns regarding notice and opportunity

to rebut. Contrary to the government’s view, Al Odah did not

address this distinction.

The District Court was highly cognizant of the challenges

posed by the nature of this case and put forth a yeoman effort

to mitigate the harms to Mr. al-Hela and his counsel. Petitioner

was given an unclassified summary of the Factual Return. We

note that Army Regulation 190–8, which reflects the domestic

interpretation of international law requirements for the

treatment of prisoners of war, allows a military tribunal to

exclude the detainee from hearing the classified evidence

introduced against him. See Army Reg. 190–8 at § 1–6(e)(3)

(“Proceedings shall be open except for deliberation and voting

by the members and testimony or other matters which would

compromise security if held in the open.”). Thus, the District

Court continued its general practice of providing Petitioner as

helpful a substitute as federal law would allow.

With respect to the government’s motions to except certain

documents from disclosure to Mr. al-Hela’s counsel, the

District Court proceeded with extreme care. The default

position of the Case Management Order is that “the

government shall, unless granted an exception by the Merits

Judge, provide the petitioner’s counsel with the classified

information, provided the petitioner’s counsel is cleared to

access such information.” Dkt. 172, Case Management Order

§ 1.F. (emphases added). A problem arose because Mr. al-

Hela’s counsel held clearances at the Secret level, but some of

the government’s evidence in support of detention was

classified as Top Secret or deemed Sensitive Compartmented

41

Information, which Petitioner’s counsel did not have clearance

to view. Top Secret information is classified as such because

the Executive has concluded that its unauthorized disclosure

“could reasonably be expected to cause exceptionally grave

damage to the national security.” 41 C.F.R. § 105-62.101(a). It

is a violation of federal law to disclose classified information

to someone who has not been cleared to receive it. See 18

U.S.C. § 798; Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec.

29, 2009).

In a footnote, Mr. al-Hela states that “[i]f this was the

reason for nondisclosure, then the Government should have

allowed [his] counsel to apply for Top Secret clearances[.]”

Pet’r Br. 54 n.16. But Mr. al-Hela cites nothing from the

District Court record indicating that his counsel sought Top

Secret or Sensitive Compartmented Information clearances, or

sought to associate with co-counsel who already held the

requisite clearances. Lacking any record allowing us to assess

meaningfully any objection to inadequate clearance, we do not

opine on the more difficult question of whether the District

Court can consider classified evidence in support of detention

at the merits stage on an ex parte basis where the detainee’s

counsel held the requisite security clearance or the government

unreasonably withheld granting the requisite clearance.

Before hearing from the government on the motions for

exception from disclosure, the District Court allowed

Petitioner’s counsel to explain their theory of how and why

certain classes of documents were exculpatory. This gave the

court the benefit of that reasoning when reviewing the

documents with the government ex parte and issuing a ruling.

Indeed, as stated above, the District Court ordered the

disclosure of some documents as exculpatory over the

government’s initial objection. See Resp. Br. Add. 4–5; Ex

Parte Orders of May 9, 2016 & Jan. 23, 2018. With regard to

42

any highly sensitive, classified information that pertained to the

government’s basis for detaining Petitioner, the District Court

denied most of the requests to exempt the documents

completely from disclosure to Mr. al-Hela’s counsel. Instead,

the District Court required the government to provide a copy of

the document with the fewest redactions possible, and to justify

each and every redaction. In addition, the District Court

required the government to provide an adequate summary of

the highly sensitive information wherever possible, such that

Mr. al-Hela’s counsel had a sufficient opportunity to rebut the

government’s asserted factual basis for Petitioner’s detention

(and to exploit exculpatory information). In several instances,

the government elected to withdraw its reliance upon a

document altogether rather than comply with the disclosure

order. As a result, only a small number of documents in

support of Mr. al-Hela’s detention were reviewed by the

District Court ex parte at the merits stage, and only after a

finding that the material being withheld was especially

sensitive and that its disclosure—even in redacted form or with

substitute language—would risk harm to national security.

(Our review of this issue was unnecessarily difficult because

the government failed to provide us with the dispositions of

each motion for exception, the District Court docket did not

initially list all of the ex parte proceedings, and the exhibit list

did not identify which ex parte exhibits were considered by the

court at the merits stage, oversights that we expect not to recur

in future appeals. With the assistance of the District Court and

the government, we were later able to reassemble and review

the entire record.).

The District Court faced a daunting challenge. As the

Supreme Court ruled in Hamdi, 542 U.S. at 533, the core of

procedural due process requires that the petitioner “receive

notice of the factual basis for his classification, and a fair

opportunity to rebut the Government’s factual assertions[,]”

43

and the petitioner cannot respond to or rebut evidence in

support of detention if his lawyer is not even provided a

classified summary of that evidence. On the other side of the

scale, “[t]he Government has a compelling interest in

protecting both the secrecy of information important to our

national security and the appearance of confidentiality so

essential to the effective operation of our foreign intelligence

service.” Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)

(per curiam).

In light of these competing interests, the District Court

compelled the government to provide adequate substitutions

and the fewest possible redactions, so that documents classified

as Top Secret or containing Sensitive Compartmented

Information could be reclassified at the Secret classification

level and therefore disclosed to Mr. al-Hela’s counsel pursuant

to federal law and the Protective Order. Under the

circumstances, we do not believe that the District Court abused

its discretion in failing to order either disclosure of those highly

sensitive documents to Mr. al-Hela’s counsel or the exclusion

of those documents from the government’s case.

The ex parte documents consisted of only a very small

subset of the government’s case, both quantitatively and

qualitatively. The District Court’s reliance on ex parte

evidence was tightly circumscribed and generally used not to

break new ground, but rather to test whether other evidence

was corroborated. For example, when weighing aspects of Mr.

al-Hela’s testimony that apparently conflicted with his own

earlier statements, the District Court agreed with the

government’s contention that the court should credit the earlier

statements. In rejecting Mr. al-Hela’s argument that those

earlier statements must have been mistranslated, the court cited

an array of evidence, only one facet of which drew from ex

parte materials. J.A. 152–53. Mr. al-Hela was able to (and

44

frequently did) challenge the government’s contentions on

other bases, despite the conceded limitations posed by his

counsel’s access restraints. E.g., J.A. 190. And the District

Court’s use of ex parte evidence did not invariably favor the

government—in one instance, the court referenced ex parte

evidence to reject as unreliable certain evidence the

government had proffered. J.A. 156–57 n.10. Thus, although

the District Court did not have the full benefit of adversarial

presentation, the record shows that the District Court

considered ex parte documents only to a very minimal degree,

and that it did so with the inquisitive and evenhanded manner

required under the extraordinary circumstances. See also Oral

Arg. Tr. 46:11–15 (per government counsel, “the [D]istrict

[C]ourt relied on ex parte documents in four instances and only

in each instance to make a credibility determination with

respect to a source, three times finding the source credible and

one time finding the source not credible”).

This judicious and common-sense approach sufficiently

reduced the risk of an erroneous deprivation of liberty while

mitigating the burdens to both parties as much as possible.

Though providing additional disclosures would no doubt have

been helpful to Mr. al-Hela and his counsel, the provision of

that additional process is outweighed by the government’s

specifically identified competing national security interests in

nondisclosure of this highly sensitive information. As the

Supreme Court admonished in Boumediene, “the Government

has a legitimate interest in protecting sources and methods of

intelligence gathering; and we expect that the District Court

will use its discretion to accommodate this interest to the

greatest extent possible.” 553 U.S. at 796. While the question

is close, we hold that the balance struck by the District Court

in this case comported with the Due Process Clause, given the

rigorous review of classified substitutes, the minimization of

redactions, the non-reliance on redacted material in support of

45

detention, the minimal amount of ex parte evidence, and the

close scrutiny of the reliability of the ex parte evidence and all

hearsay evidence. We doubt that anything less would suffice.

IV.

We turn next to Petitioner’s argument that his continued

and prolonged detention without charge or trial amounts to a

substantive due process violation.

Substantive due process “prevents the government from

engaging in conduct that shocks the conscience, or interferes

with rights implicit in the concept of ordered liberty[.]”

Salerno, 481 U.S. at 746 (internal citations and quotation marks

omitted); see also Ali, 959 F.3d at 369–70 (defining “arbitrary”

to include any government action that can “fairly be said to

shock the conscience”); Estate of Phillips v. District of

Columbia, 455 F.3d 397, 403 (D.C. Cir. 2006) (“[T]he

conscience-shock inquiry is a threshold question in a due

process challenge to executive action.” (citations and quotation

marks omitted)). Put another way, 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, 504 U.S. at 80 (quotation

marks omitted). In sum, the substantive aspect of due process

tests the government’s justification and authority to deprive

Mr. al-Hela of his liberty.

A.

Mr. al-Hela claims that two decades of indefinite detention

without charge or trial exceed whatever original purpose may

have existed for his detention and is now punitive.

Again assuming (without deciding) that substantive due

process protections apply to noncitizen Guantanamo detainees,

46

we reject Petitioner’s contention that the duration of his

detention, in and of itself, entitles him to relief. The length of

Mr. al-Hela’s detention is neither arbitrary nor conscience-

shocking merely because the AUMF imposes no time limits on

the detention of enemy combatants. “[Mr. al-Hela]’s detention

is long because the armed conflict out of which it arises has

been long[.]” Ali, 959 F.3d at 370. Although American troops

withdrew from Afghanistan in August 2021, Petitioner does

not argue that the armed conflict out of which his detention

arises has concluded, and because “[w]ar does not cease with a

cease-fire order,” the President’s war powers “[are] not

exhausted when the shooting stops.” Ludecke v. Watkins, 335

U.S. 160, 167 (1948). We have no occasion here to consider

whether, in circumstances in which an armed conflict may

continue essentially in name only, the notion that a lengthy

conflict supports a commensurately lengthy detention might

give way. Cf. Hamdi, 542 U.S. at 521 (“If the practical

circumstances of a given conflict are entirely unlike those of

the conflicts that informed the development of the law of war,

that understanding may unravel.”). Petitioner makes no such

argument in this case.

Insofar as Mr. al-Hela contends that his detention violates

substantive due process principles because he was never an

enemy combatant, that claim too is rejected. The District Court

found Mr. al-Hela more likely than not substantially supported

al Qaeda and its associated forces. As the panel determined,

there was sufficient evidence of Mr. al-Hela’s status as an

enemy combatant and the District Court’s finding was not

clearly erroneous. Al Hela, 972 F.3d at 134.

B.

Prior to argument, the Periodic Review Board, a body that

reviews the continued detention of individuals at Guantanamo

pursuant to Executive Order 13,567, determined by consensus

“that continued law of war detention [of Mr. al-Hela] is no

47

longer necessary to protect against a continuing significant

threat to the security of the United States.” See Periodic

Review Board Determination. Mr. al-Hela argues that since he

is no longer a threat to the United States, his continued

detention is arbitrary and therefore violative of substantive due

process. See, e.g., County of Sacramento v. Lewis, 523 U.S.

833, 846 (1998) (substantive due process violated by “the

exercise of power without any reasonable justification in the

service of a legitimate governmental objective”); Comm. of

U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 944

(D.C. Cir. 1988) (substantive due process prohibits “action that

is ‘legally irrational [in that] it is not sufficiently keyed to any

legitimate state interests’”) (citation omitted). For several

reasons, we believe that this substantive due process claim

should be remanded to the District Court and express no views

on its merits.

First, given the finding of the Periodic Review Board, the

Executive Order mandates that “the Secretaries of State and

Defense shall be responsible for ensuring that vigorous efforts

are undertaken to identify a suitable transfer location for [Mr.

al-Hela] outside of the United States. . .” § 4(a), 76 Fed. Reg.

at 13,279. At oral argument, Petitioner’s counsel did not

clearly specify how the relief Mr. al-Hela could obtain if he

prevailed on the substantive due process claim would differ

from the undertakings mandated by the Executive Order. See,

e.g., Oral Arg. Tr. 11–14. If the Executive Order provides Mr.

al-Hela with the same relief that he could obtain from a

successful substantive due process challenge, the constitutional

claim could be moot (particularly if Mr. al-Hela can enforce

any aspect of the Executive Order). This issue was not briefed

by the parties and should be addressed by the District Court in

the first instance. Again, we express no view on its merits.

48

Second, in setting forth its legal authority for detention

below, the government conceded that “[t]he detention authority

conferred by the AUMF is necessarily informed by principles

of the laws of war.” Dkt. 192 at 1 (citing Hamdi, 542 U.S. at

521); see also National Defense Authorization Act for Fiscal

Year 2012 § 1021(a) (“Congress 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 . . . pending disposition under the law of war.”)

(emphases added). Thus, the government agreed that

“[p]rinciples derived from law-of-war rules governing

international armed conflicts . . . must inform the interpretation

of the detention authority Congress has authorized for the

current armed conflict.” Dkt. 192 at 1. The Executive Order

provides that “[c]ontinued law of war detention is warranted

for a detainee . . . if it is necessary to protect against a

significant threat to the security of the United States[,]” 76 Fed.

Reg. at 13,277. Thus, contrary to the protestations of Judge

Rao (Rao Op. 2, 21, 27–28, 31), statements of the political

branches could be construed as suggesting that law of war

principles have at least some relevance, since the Executive

concedes those principles “inform” the President’s authority

under the AUMF and Congress cited law of war principles

when affirming the President’s detention authority in 2012.

Accordingly, the Periodic Review Board’s finding that Mr.

al-Hela’s detention is no longer necessary to protect against a

significant threat to the United States could be construed as

implicitly undermining the contention that Mr. al-Hela’s

detention remains justified by the law of war and the AUMF.

The Periodic Review Board also found a “lack of indication

that [Mr. al-Hela] harbors extremist beliefs or intentions to

reengage,” Periodic Review Board Determination, which is

significant given that the “purpose of [law of war] detention is

49

to prevent captured individuals from returning to the field of

battle and taking up arms once again[,]” Hamdi, 542 U.S. at

518; cf. Ali, 959 F.3d at 370 (“Ali’s detention still serves the

established law-of-war purpose of preventing captured

individuals from returning to the field of battle and taking up

arms once again.”) (formatting modified and internal quotation

marks and citation omitted). The question of whether the

Periodic Review Board’s Determination renders Petitioner’s

continued detention unlawful under the AUMF should be

resolved. Whether the laws of war place any limits on the

President’s detention authority under the AUMF is an open

question in our circuit and should be addressed by the District

Court in the first instance. Judge Rao contends (Rao Op. 27–

28) that Al-Bihani held that international laws of war cannot

limit the President’s authority under the AUMF. See 590 F.3d

at 871. But as she acknowledges, Rao Op. 27–28, seven of the

nine members of the en banc Court denied the petition for

rehearing. In doing so, the majority of the en banc Court

explained that the Al-Bihani panel’s law-of-war discussion was

“not necessary to the disposition of the merits” and was

therefore nonbinding dictum. See Al-Bihani, 619 F.3d at 1

(Mem.) (Sentelle, C.J., and Ginsburg, Henderson, Rogers,

Tatel, Garland & Griffith, JJ., concurring in the denial of

rehearing en banc). We adhere to that position today.

Even if, as the government has argued, the Determination

does not create any right or benefit that is enforceable by Mr.

al-Hela, see Executive Order 13,567 § 10(c), 76 Fed. Reg. at

13,280, the government’s factual findings could nonetheless be

relevant to a court’s consideration of whether Mr. al-Hela’s

continued detention violates the law of war and thus potentially

contravenes the statutory authority conferred by the AUMF.

To be sure, Congress has said that “the purpose of the periodic

review process is not to determine the legality of any detainee’s

law of war detention,” National Defense Authorization Act for

50

Fiscal Year 2012 § 1023(b)(1); see also Executive Order

13,567, 76 Fed. Reg. at 13,279 (“The process established under

this order does not address the legality of any detainee’s law of

war detention[]”), but it is a different question whether factual

findings underlying a Periodic Review Board decision are

admissible and how, if at all, such findings affect the legality

of a petitioner’s detention. Cf. Beech Aircraft Corp. v. Rainey,

488 U.S. 153, 170 & n.13 (noting that whether “legal

conclusions” from an official report are admissible under

Federal Rule of Evidence 803(8) is a different question than

whether “findings of fact” in an official report of a legally

authorized investigation are admissible). Because the effect of

the government’s findings on its AUMF detention authority

was not briefed by the parties, and, if Mr. al-Hela were to

prevail, this statutory claim would afford a non-constitutional

ground for granting relief, the issue should be addressed by the

District Court in the first instance.

Once again, we express no view on the merits of Mr. al-

Hela’s statutory claim or his substantive due process claim.

(Judge Rao incorrectly posits that by expressing no view on the

merits of the substantive due process claim, we have

nonetheless somehow “effectively conclude[d] that al-Hela

enjoys the protections of substantive due process.” Rao Op.

31.). Rather, we remand the statutory claim to enable the

District Court to consider the effect, if any, of the Periodic

Review Board’s Determination on the lawfulness of Mr. al-

Hela’s detention under the AUMF. As such, the District Court

need only reach the merits of the overlapping substantive due

process claim if it finds that the claim is not moot and that the

statutory claim is without merit.

***

We affirm the finding that Mr. al-Hela is an enemy

combatant because the District Court’s procedures at the merits

51

stage, which satisfied the Suspension Clause, also provided

what the Due Process Clause would require. Likewise,

assuming due process protections apply to Guantanamo

detainees, we reject Petitioner’s substantive due process

challenge based solely on the length of his detention. We do,

however, remand to the District Court Petitioner’s claim that

continuing to detain him if he no longer presents an ongoing

threat violates substantive due process. In doing so, we hold

that before the District Court considers the substantive due

process claim, it should consider the effect of the Periodic

Review Board’s Determination on mootness and the

President’s authority to continue to detain Mr. al-Hela under

the AUMF.

Although our dissenting colleagues disagree with the

reasoning set forth in this opinion, the Court largely agrees

upon the outcome. All members of the en banc Court agree

that we should affirm the District Court’s rejection of Mr. al-

Hela’s procedural due process claims. All members of the en

banc Court also agree that we should affirm the denial of Mr.

al-Hela’s claims that his detention violates substantive due

process because there is insufficient evidence that he was an

enemy combatant, or solely because of the lengthy duration of

the military conflict. However, while our dissenting colleagues

would dismiss Mr. al-Hela’s claim that his continued detention

violates substantive due process because he no longer poses a

significant threat to the United States, we remand this claim to

the District Court for further proceedings consistent with this

opinion.

So ordered.

PILLARD, Circuit Judge, with whom ROGERS and MILLETT,

Circuit Judges, join, concurring:

I join the majority opinion in full. The en banc court

assumes without deciding that the Due Process Clause applies

and holds, after careful review of the record, that the District

Court’s exacting review of Mr. al Hela’s habeas petition,

including strict limitation of ex parte evidence, provided him

what the Due Process Clause would afford. I write separately

to underscore that established precedent provides ample

footing for the court’s predicate assumption that the Due

Process Clause’s protections could apply to detainees at

Guantanamo, including Mr. al Hela. Because the United States

has total and indefinite control amounting to de facto

sovereignty over Guantanamo Bay, non-U.S. citizens detained

there may have some constitutional protections beyond those

provided by the Suspension Clause. The courts, not the

Executive Branch, decide the reach of constitutional rights.

And no established precedent bars the court from assuming the

applicability of the Due Process Clause so as to decide this case

in the narrowest way.

* * *

The dissents insist that, under “settled law,” “aliens

outside the territorial United States do not possess

constitutional rights.” Rao Op. 1-2; see also Randolph Op. 3,

6. They advert to a binary, sovereignty-based approach under

which the Constitution protects non-U.S. citizens only when

they are within, and not beyond, the sovereign territory of the

United States. That analysis ignores a third category that the

Supreme Court crystallized and held decisive in Boumediene v.

Bush, 553 U.S. 723 (2008). Referring to Guantanamo Bay, the

Court in Boumediene explained that, where the United States

“maintains de facto sovereignty over [a] territory” due to “its

complete jurisdiction and total control” over it, the

Constitution, as applied to foreign citizens, does not

2

“necessarily stop[] where de jure sovereignty ends.” Id. at 755;

see id. at 764-65, 770-71.

Today the en banc court permissibly reads Boumediene to

leave open the possibility that non-U.S. citizens whom the U.S.

government detains at Guantanamo are entitled to due process.

Maj. Op. 12-18. As the Supreme Court recounted in

Boumediene, “[t]he United States has maintained complete and

uninterrupted control of [Guantanamo] [B]ay for over 100

years,” dating back to the end of the Spanish-American War in

1898. 553 U.S. at 764. Although the 1903 Lease Agreement

between the United States and Cuba “recognized . . . that Cuba

retained ‘ultimate sovereignty’ over Guantanamo, the United

States continued to maintain the same plenary control it had

enjoyed since 1898.” Id. at 765. Because Guantanamo remains

under the “absolute” and “indefinite” control of the United

States, the Court explained, “[i]n every practical sense

Guantanamo is not abroad; it is within the constant jurisdiction

of the United States.” Id. at 768-69. Within such “de facto”

U.S. territory, id. at 755, the Court recognized that it is possible

for “noncitizens detained by our Government in territory over

which another country maintains de jure sovereignty [to]

have . . . rights under our Constitution,” id. at 770; see Agency

for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082,

2086 (2020) (reaffirming that “under some circumstances,

foreign citizens in the U.S. Territories—or in ‘a territory’ under

the ‘indefinite’ and ‘complete and total control’ and ‘within the

constant jurisdiction’ of the United States—may possess

certain constitutional rights” (quoting Boumediene, 553 U.S. at

755-71)).

The Boumediene Court relied on “separation-of-powers”

principles in recognizing that at least some constitutional

protection applies to Guantanamo detainees:

3

[T]he Government’s view is that the Constitution

ha[s] no effect [at Guantanamo], at least as to

noncitizens, because the United States disclaimed

sovereignty in the formal sense of the term. The

necessary implication of the argument is that by

surrendering formal sovereignty over any

unincorporated territory to a third party, while at the

same time entering into a lease that grants total

control over the territory back to the United States, it

would be possible for the political branches to

govern without legal constraint.

Our basic charter cannot be contracted away like

this. The Constitution grants Congress and the

President the power to acquire, dispose of, and

govern territory, not the power to decide when and

where its terms apply.

553 U.S. at 764-65. To conclude otherwise “would permit a

striking anomaly in our tripartite system of government,

leading to a regime in which Congress and the President, not

this Court, say ‘what the law is.’” Id. at 765 (quoting Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). The Supreme

Court in Boumediene declined to read “[o]ur basic charter” as

empowering the Executive to “switch the Constitution on or off

at will” by contractually disclaiming formal sovereignty over a

territory that is functionally “within the constant jurisdiction of

the United States.” Id. at 765, 769. Boumediene therefore

rejected the categorical position the dissents here urge—that,

apart from the acknowledged applicability of the Suspension

Clause at Guantanamo, the Constitution cannot protect non-

U.S. citizens outside the territorial United States. See id. at

764-65, 770-71.

4

The Court in Boumediene did not confine its language or

logic to the Suspension Clause, contra Rao Op. 9-14, and its

approach supports our assumption that the Due Process Clause

could apply to a Guantanamo detainee’s habeas petition. For

starters, the one location that undoubtedly qualifies as a de

facto U.S. territory is Guantanamo, where the United States

continues to hold Mr. al Hela. See Boumediene, 553 U.S. at

755, 764-65, 770-71. And Boumediene speaks not of habeas

corpus exclusively, but of constitutional rights more generally:

The Court rejected “[t]he Government’s formal sovereignty-

based test” for “determining the geographic reach of the

Constitution,” as well as “of habeas corpus” in particular. Id.

at 764 (emphasis added). It denied that “the Constitution

necessarily stops where de jure sovereignty ends.” Id. at 755

(emphasis added). And it rebuffed “the Government’s view . . .

that the Constitution had no effect [at Guantanamo], at least as

to noncitizens, because the United States disclaimed

sovereignty in the formal sense of the term.” Id. at 765

(emphasis added). The en banc court’s decision to assume

without deciding that the Due Process Clause applies at

Guantanamo thus rests on firm ground.

In addition, members of this court have recognized that

Boumediene’s analytic framework is not limited to the

Suspension Clause. Indeed, “[o]f the seven judges on the en

banc Court” in Al Bahlul v. United States, five agreed that “in

light of Boumediene v. Bush . . . the Ex Post Facto Clause

applies at Guantanamo.” Al Bahlul v. United States, 767 F.3d

1, 63 (D.C. Cir. 2014) (Kavanaugh, J., concurring in the

judgment in part and dissenting in part); see id. at 18 n.9

(opinion of Henderson, J., joined by Garland, C.J., and Tatel

and Griffith, JJ.) (stating the views of then-Chief Judge

Garland and Judges Tatel and Griffith on this point); id. at 49-

5

50 (Rogers, J., concurring in the judgment in part and

dissenting). As then-Judge Kavanaugh put it:

[T]he Boumediene analysis leads inexorably to the

conclusion that the ex post facto right applies at

Guantanamo. It would be no more impracticable or

anomalous to apply the Article I, Section 9 ex post

facto right at Guantanamo than it is to apply the

Article I, Section 9 habeas corpus right at

Guantanamo.

Id. at 65 n.3. Judge Rogers similarly reasoned that

Boumediene’s “analysis of the extraterritorial reach of the

Suspension Clause applies to the Ex Post Facto Clause because

the detainees’ status and location at Guantanamo Bay are the

same, and the government has pointed to no distinguishing

‘practical obstacles’ to its application.” Id. at 49 (Rogers, J.,

concurring in the judgment in part and dissenting). Three

additional judges—then-Chief Judge Garland and Judges Tatel

and Griffith—noted that if they were to decide the ex post facto

issue de novo (i.e., if the Government had not conceded the

point), they would conclude that the Clause applies “for the

reasons stated” by Judges Rogers and Kavanaugh in the above-

quoted sections of their respective opinions. Id. at 18 n.9.

It is fair to assume, as today’s en banc court does, that the

same reasoning could apply here. It would be no more

impracticable to apply the Due Process Clause than the

Suspension or Ex Post Facto Clause in this context. If

anything, the due process analysis is particularly well

calibrated to take account of practical obstacles, given that it

weighs any “burdens the Government would face in providing

greater process.” Hamdi v. Rumsfeld, 542 U.S. 507, 529 (2004)

(plurality opinion) (citing Mathews v. Eldridge, 424 U.S. 319,

335 (1976)). Nor would application of the Due Process Clause

6

be anomalous, given the Court’s application of the Suspension

Clause in this setting. The Suspension Clause plays a similar

role to due process in “preserv[ing] the Constitution’s

separation-of-powers structure” by preventing arbitrary

exercise of Executive power. Al Bahlul, 767 F.3d at 49

(Rogers, J., concurring in the judgment in part and dissenting).

And, as Judge Wilkins’s opinion for the majority points out,

the “meaningful opportunity” to challenge the legality of

detention guaranteed by the Suspension Clause, Boumediene,

553 U.S. at 779, provides protection that is congruent in this

context to the “opportunity to be heard ‘at a meaningful time

and in a meaningful manner’” afforded by the Due Process

Clause, Mathews, 424 U.S. at 333 (quoting Armstrong v.

Manzo, 380 U.S. 545, 552 (1965)); see Maj. Op. 22-25.

Indeed, it is hard to imagine how any procedural protections

that Mathews affords to a detained enemy combatant’s habeas

petition, see Hamdi, 542 U.S. at 529-39 (plurality opinion),

would not also be demanded by the Suspension Clause’s

requirement of a “meaningful opportunity” to contest the basis

for detention and “meaningful review” by the courts of

detention decisions, Boumediene, 553 U.S. at 779, 783.

Johnson v. Eisentrager, 339 U.S. 763 (1950), does not

compel a contrary conclusion. Contra Rao Op. 1-9; Randolph

Op. 3, 6. As Boumediene made clear, Eisentrager should not

be read to foreclose constitutional claims of non-U.S. citizens

outside U.S. sovereign territory under a “bright-line test” based

solely on de jure territorial sovereignty. Boumediene, 553 U.S.

at 763. The government had argued for a bright-line de jure

sovereignty test in Eisentrager and did so again in Boumediene.

See Boumediene, 553 U.S. at 763 (citing Brief for Petitioners

at 74-75, Eisentrager, 339 U.S. 763 (O.T. 1949, No. 306), 1950

WL 78514). But in a broad-ranging discussion of its past

decisions regarding “the Constitution’s extraterritorial

application,” id. at 755; see id. at 755-64, the Boumediene

7

Court rejected the government’s “formalistic” test and its

reading of precedent: “Nothing in Eisentrager says that de jure

sovereignty is or has ever been the only relevant consideration

in determining the geographic reach of the Constitution . . . .”

Id. at 764. Instead, the Court drew on its own more nuanced

reading of Eisentrager, as well as the Insular Cases and Reid v.

Covert, 354 U.S. 1 (1957), to identify “a common thread

uniting” its precedents on the Constitution’s applicability

outside the sovereign territory of the United States—namely

“the idea that questions of extraterritoriality turn on objective

factors and practical concerns, not formalism.” Boumediene,

553 U.S. at 764; see id. at 766-71.

In accordance with that precedent, Boumediene instructs

that a “formal sovereignty-based” approach is inadequate for

Guantanamo, id. at 764-65, yet today’s dissenters contend that,

because “Guantanamo Bay is decidedly outside the territorial

United States,” foreign citizens detained there “cannot benefit

from the protections of the Due Process Clause,” Rao Op. 1.

That reasoning runs headlong into Boumediene’s explicit

rejection of the view that the Constitution, as applied to non-

U.S. citizens, “necessarily stops where de jure sovereignty

ends,” at least where the United States, “by virtue of its

complete jurisdiction and total control over [a territory],

maintains de facto sovereignty over th[at] territory.”

Boumediene, 553 U.S. at 755; see id. at 770-71; see also All.

for Open Soc’y Int’l, 140 S. Ct. at 2086 (citing Boumediene,

553 U.S. at 755-71). In short, the dissenters take a route that

the Supreme Court has plainly marked a dead end, all while

deeming irrelevant factors and concerns that the Court has

identified as germane to deciding Mr. al Hela’s constitutional

claims.

8

* * *

It suffices in this case to assume without deciding that the

Due Process Clause applies. Because a premise of the en banc

court’s assumption is that no binding precedent forecloses

application of the Due Process Clause at Guantanamo, I write

to highlight why we fairly deem open an issue that some of our

colleagues would treat as closed. I join Judge Wilkins’s

majority opinion in full.

RAO, Circuit Judge, with whom WALKER, Circuit Judge,

joins, concurring in the judgment in part and dissenting in part:

More than twenty years after the first enemy alien was

detained at the Guantanamo Bay Naval Station in Cuba, this

court discovers the Due Process Clause might protect these

alien detainees. On this assumption, the court applies the Due

Process Clause outside the sovereign territory of the United

States, pioneering a jurisprudence squarely at odds with the

Constitution.

The Due Process Clause simply does not extend to aliens

outside the territorial United States, as the Supreme Court

emphatically recognized in Johnson v. Eisentrager, 339 U.S.

763, 781–85 (1950). The Court and this circuit have relied on

Eisentrager in the ensuing years to reaffirm that aliens outside

the territorial United States do not possess constitutional rights.

Guantanamo Bay is decidedly outside the territorial United

States. Boumediene v. Bush, 553 U.S. 723, 753–54 (2008). As

an alien detained there, Abdulsalam Ali Abdulrahman al-Hela

cannot benefit from the protections of the Due Process Clause.

To avoid this straightforward conclusion, the court takes a

convoluted path. At the outset, it boldly asserts that it is an open

question whether the Due Process Clause applies to

Guantanamo detainees. Rather than decide that question, the

court merely assumes the Clause applies. With that

unprecedented assumption in hand, it concludes for the first

time in our history that the procedural protections of the

Suspension Clause and the Due Process Clause are equivalent.

But apparently not identical, because the court imports the

Mathews v. Eldridge balancing test to assess each of al-Hela’s

procedural due process claims, manufacturing new and

significant procedural due process law along the way. As to al-

Hela’s “substantive due process” claims, the court effectively

holds, not assumes, that al-Hela possesses such rights by

2

remanding one of his claims to the district court. Finally,

almost as an aside, the court upends circuit precedent by stating

the international law of war may limit the reach of the

Authorization for the Use of Military Force (“AUMF”), the

statute that provides the basis for the detention of al-Hela and

other enemy aliens after the terrorist attacks of September 11.

Despite this rampage through our settled law, al-Hela still

loses on his due process claims, the same result that would have

followed from applying Eisentrager. For Guantanamo

detainees who have argued for greater constitutional

protections, this court’s cramped application of due process is

at best a pyrrhic victory. Nevertheless, the loss to the rule of

law is substantial. The court’s novel and unfounded approach

will upset ongoing military and district court proceedings and

invariably require yet more litigation, further entangling this

court in sensitive matters of national security and foreign

affairs.

I.

Under settled Supreme Court precedent, al-Hela’s due

process claims are readily rejected. To reach a contrary

conclusion, the majority asserts a tabula rasa—namely that this

Court has never resolved the question of whether “the Due

Process Clause extends to Guantanamo detainees.” Maj. Op. 5.

The majority simply assumes the Due Process Clause applies

to enemy aliens held at Guantanamo Bay, but cannot

distinguish the numerous Supreme Court precedents to the

contrary.

This Part first discusses the unbroken line of decisions of

our highest court, as well as this circuit, holding that the Due

Process Clause does not apply to aliens outside the territorial

United States. Second, the Supreme Court in Boumediene

allowed the writ of habeas corpus to run to Guantanamo Bay

3

but did not explicitly or implicitly abrogate the long-settled

principle that constitutional protections do not extend to aliens

outside our sovereign territory. Finally, because this

constitutional principle is so fundamental, previous decisions

have not examined its origins. The text and structure of the

Constitution, as well as its original meaning, make clear that

the constitutional upheaval wrought by the majority is entirely

without support. The Due Process Clause does not apply

outside the territorial United States, and therefore alien

detainees at Guantanamo Bay do not enjoy its protections.

A.

As a lower court, it is a bedrock principle of our judicial

system that we are bound to follow Supreme Court precedent.

The majority’s failure to engage with these precedents is

irregular to say the least, all the more so because the Court’s

decisions in this area have been clear and unequivocal.

In Johnson v. Eisentrager, the Supreme Court “rejected

the claim that aliens are entitled to Fifth Amendment rights

outside the sovereign territory of the United States.” United

States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citing

Eisentrager, 339 U.S. at 770, 784). Writing for the Court,

Justice Jackson explained that:

Such 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. None of the learned commentators

on our Constitution has even hinted at it. The

4

practice of every modern government is

opposed to it.

Eisentrager, 339 U.S. at 784–85 (cleaned up).

In overruling a decision of this circuit, the Supreme Court

rejected the theory that because the Fifth Amendment applies

to “any person,” it must apply to aliens detained outside the

United States who take up arms against it. Id. at 781–82

(overruling Eisentrager v. Forrestal, 174 F.2d 961 (D.C. Cir.

1949)). It made little sense to read the phrase “any person” in

the Fifth Amendment to include enemy aliens given that

American soldiers are subject to military discipline and

“thereby stripped of their Fifth Amendment rights.” Id. at 783;

see also U.S. CONST. amend. V (exempting “cases arising in

the land or naval forces, or in the Militia” from certain

procedural protections). “It would be a paradox indeed,” the

Court explained, “if what the Amendment denied to Americans

it guaranteed to enemies.” Eisentrager, 339 U.S. at 783. The

U.S. Constitution, consistent with the longstanding practice of

constitutional governments, simply did not apply to aliens

outside the territorial United States.

The intervening decades have only reinforced the central

holding of Eisentrager that the Constitution does not extend

extraterritorially to aliens. For example, in Verdugo-Urquidez

the Court described Eisentrager’s conclusion as “emphatic”

and held the Fourth Amendment does not apply to “property

that is owned by a nonresident alien and located in a foreign

country.” 494 U.S. at 261, 269. The Court reasoned that the

Fifth Amendment did not extend extraterritorially, even though

it spoke “in the relatively universal term of ‘person,’” and

therefore the inappropriateness of extraterritorial application

“would seem even more true with respect to the Fourth

Amendment, which applies only to ‘the people.’” Id. at 269.

5

In Zadvydas v. Davis, the Court again recognized, “[i]t 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. 678, 693

(2001) (citing Verdugo-Urquidez, 494 U.S. at 269;

Eisentrager, 339 U.S. at 784). The Court held that indefinite

detention of an alien within the United States would “raise a

serious constitutional problem” under the Due Process Clause

and emphasized it “made all the difference” that Zadvydas had

already entered the United States. Id. at 690, 693. The case was

therefore unlike Shaughnessy v. United States ex rel. Mezei,

345 U.S. 206 (1953), in which the Court held that an alien who

was refused admission could be indefinitely detained without

constitutional concern. Zadvydas, 533 U.S. at 693 (citing

Eisentrager, 339 U.S. at 784). Recognizing the continuing and

“well established” principles articulated in Eisentrager and

subsequent cases, the Court emphasized the “critical

distinction” between situations in which an alien has legally

entered the United States and those in which the alien remains

effectively outside our borders. Id. at 693–94. The Court’s

holding was narrow—only when an alien “has effected an entry

into the United States” is the Due Process Clause even

implicated. 1 Id. at 693.

1

Four justices did not agree even with this narrow holding and would

have upheld the plain meaning of the challenged statute, which

allowed for indefinite detention of aliens who were ordered removed

from the United States. See Zadvydas, 533 U.S. at 702, 705 (Scalia,

J., dissenting) (identifying “the Attorney General’s clear statutory

authority to detain criminal aliens with no specified time limit” and

finding “no constitutional impediment to the discretion Congress

gave to the Attorney General”); id. at 705 (Kennedy, J., dissenting)

(arguing the Court had “interpret[ed] a statute in obvious disregard

of congressional intent”).

6

In recent years, the Supreme Court has reaffirmed the

broadest understanding of Eisentrager. In Agency for

International Development v. Alliance for Open Society

International, Inc. (“AID”), the Supreme Court held “foreign

organizations operating abroad … possess no rights under the

First Amendment.” 140 S. Ct. 2082, 2087 (2020). To reach this

conclusion, the Court began with the fundamental principle:

“First, it is long settled as a matter of American constitutional

law that foreign citizens outside U. S. territory do not possess

rights under the U. S. Constitution.” Id. at 2086. For this

proposition the Court cited, not just Eisentrager, but also

Boumediene, 553 U.S. at 770–71; Hamdi v. Rumsfeld, 542 U.S.

507, 558–59 (2004) (Scalia, J., dissenting); Verdugo-Urquidez,

494 U.S. at 265–75; United States ex rel. Turner v. Williams,

194 U.S. 279, 292 (1904); and the Preamble to the United

States Constitution. AID, 140 S. Ct. at 2086. Similarly, in

Department of Homeland Security v. Thuraissigiam, the Court

stated that allowing an alien who had not been lawfully

admitted to the United States to invoke the Due Process Clause

would be “contrary to more than a century of precedent.” 140

S. Ct. 1959, 1982 (2020).

This circuit has consistently applied Eisentrager and

Verdugo-Urquidez to foreclose the application of

constitutional provisions to aliens abroad. We have held that a

nonresident alien who was allegedly tortured by officials of the

Central Intelligence Agency in Guatemala lacked a substantive

due process claim under the Fifth Amendment. Harbury v.

Deutch, 233 F.3d 596, 603–04 (D.C. Cir. 2000), rev’d on other

grounds sub nom. Christopher v. Harbury, 536 U.S. 403

(2002). And we have maintained that foreign entities without

presence in the United States could not assert a procedural due

process challenge to their designation as foreign terrorist

organizations. People’s Mojahedin Org. of Iran v. U.S. Dep’t

of State, 182 F.3d 17, 22 (D.C Cir. 1999); see also Pauling v.

7

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

(stating that nonresident aliens could not assert constitutional

claims).

Until very recently, we have also faithfully applied the

Eisentrager line of cases and held explicitly that the Due

Process Clause does not extend to aliens detained at

Guantanamo Bay. See Al Hela v. Trump, 972 F.3d 120, 138–

43, 147–50 (D.C. Cir. 2020) (discussing cases). For example,

we recognized just after Boumediene that “[d]ecisions of the

Supreme Court and of this court … hold that the due process

clause does not apply to aliens without property or presence in

the sovereign territory of the United States.” Kiyemba v.

Obama (“Kiyemba I”), 555 F.3d 1022, 1026 & n.9 (D.C. Cir.

2009), vacated and remanded, 559 U.S. 131, reinstated by 605

F.3d 1046 (D.C. Cir. 2010) (“Kiyemba III”) (per curiam).

Similarly, we have rejected the “premise[]” that an alien “ha[s]

a constitutional right to due process” at Guantanamo Bay. Al-

Madhwani v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011);

see also Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509, 518

n.4 (D.C. Cir. 2009) (Kavanaugh, J., concurring) (Since

Boumediene, “[t]his Court has … stated that the detainees

possess no constitutional due process rights.”). And we have

explicitly stated that Boumediene did not overrule Eisentrager.

Rasul v. Myers, 563 F.3d 527, 528–29 (D.C. Cir. 2009) (per

curiam). After Boumediene, this court and the district court

have articulated the contours of the procedural rights afforded

to Guantanamo detainees under the Suspension Clause, but

have explicitly declined to extend constitutional due process

protections.

The majority’s only response to this unbroken line of

caselaw is to cite a single line from AID; to rely on a couple of

recent circuit cases that ignored settled Supreme Court and

circuit precedent; and to lean on the government’s political

8

change of heart. But none of these arguments support the

majority’s approach.

To begin with, the majority asserts Eisentrager no longer

is understood to bar the extraterritorial application of the Due

Process Clause. In support of this proposition, the majority

cites only a single sentence from AID that, “under some

circumstances, foreign citizens” in Guantanamo Bay “may

possess certain constitutional rights.” 140 S. Ct. at 2086; see

Maj. Op. 15. In AID, the Court simply cites Boumediene and

recognizes the narrow and specific holding that the habeas writ

may run to a place over which the United States maintains

“complete and total control.” 140 S. Ct. at 2086 (quoting

Boumediene, 553 U.S. at 771). AID in no way abrogated

Eisentrager or its holding that the Due Process Clause does not

apply outside the territorial boundaries of the United States. 2

Overlooking almost two decades of Guantanamo

precedents, the majority relies on only two recent circuit cases

that merely assert the application of the Due Process Clause to

Guantanamo detainees is an “open question.” See Ali v. Trump,

959 F.3d 364, 368–69 (D.C. Cir. 2020); Qassim v. Trump, 927

F.3d 522, 528–30 (D.C. Cir. 2019); Maj. Op. 16. But as was

recognized at the time, both of these cases ignored the Supreme

2

The majority and the concurrence similarly err in relying on then-

Judge Kavanaugh’s separate opinion in Al Bahlul v. United States,

which suggested the Ex Post Facto Clause might apply at

Guantanamo. 767 F.3d 1, 65 & n.3 (D.C. Cir. 2014) (en banc)

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

part); see Maj. Op. 15–16; Concurring Op. 4–5. These statements

were dicta in a separate opinion, but in any event, the reasoning

turned on the fact that both the Suspension Clause and the Ex Post

Facto Clause are part of Article I, section 9. See Al Bahlul, 767 F.3d

at 65 n.3 (Kavanaugh, J.). To state the obvious, such reasoning does

not apply to the Due Process Clause of the Fifth Amendment.

9

Court’s settled law and departed from circuit precedent. See

Ali, 959 F.3d at 373–80 (Randolph, J., concurring in the

judgment); Qassim v. Trump, 938 F.3d 375, 376–79 (D.C. Cir.

2019) (Henderson, J., dissenting from denial of rehearing en

banc). Ignoring governing precedent to declare a question open

does not make it so.

More puzzling still is the majority’s suggestion that

Eisentrager’s holding has “apparently eluded the government.”

See Maj. Op. 16. In its panel brief, the government followed

Eisentrager and maintained that, “[b]ecause al-Hela is

indisputably an alien with no presence in the United States, the

Due Process Clause does not extend to him with respect to his

detention at Guantanamo.” Breaking with the government’s

longstanding position in Guantanamo litigation, counsel

candidly stated at the en banc argument that the government’s

change in position reflected the intervening “change in

administration.” A new administration may change the

government’s litigating position, but cannot change the

meaning of the Constitution.

In short, the issue of whether the Due Process Clause

applies at Guantanamo Bay is not an open one.

B.

Ignoring these bedrock principles of constitutional law, the

majority attempts to rely on Boumediene v. Bush. But today’s

hypothetical constitutional upheaval finds no support in that

decision either.

Boumediene held that Guantanamo detainees may petition

for a writ of habeas corpus to challenge the lawfulness of their

detentions. 553 U.S. at 732. Recognizing that Guantanamo was

outside the territorial United States, the Court nonetheless

concluded that the writ could run to a place over which the

10

government maintained de facto sovereignty. Boumediene was

momentous, but its holding and reasoning were carefully

cabined to the reach of the Suspension Clause. Boumediene

leaves in place the Eisentrager line of cases holding that aliens

outside the territorial United States do not enjoy substantive

constitutional rights.

First, the Boumediene Court repeatedly emphasized the

unique procedural protection of the habeas writ, “one of the

few safeguards of liberty specified in a Constitution that, at the

outset, had no Bill of Rights.” Id. at 739. The Great Writ served

as a “vital instrument” to secure “freedom from unlawful

restraint.” Id. These considerations particular to the habeas

writ—the “broad historical narrative of the writ and its

function”—were “central” to the Court’s analysis. Id. at 746.

They undergirded the Court’s conclusion that, because the

United States “maintains de facto sovereignty” over

Guantanamo, the Suspension Clause guarantees detainees there

a “meaningful opportunity” to challenge the basis of their

detention. Id. at 755, 779. But see id. at 843–48 (Scalia, J.,

dissenting) (contending the history of the common law habeas

writ demonstrates that it was not available for aliens held

outside sovereign territory).

Importantly, the conclusion that the writ of habeas corpus

could run to a location like Guantanamo Bay, over which the

United States maintained de facto sovereignty, turned on the

nature of the writ as a procedural protection. Nowhere did the

Court suggest that its de facto sovereignty test for the habeas

writ would also extend substantive constitutional rights to

aliens beyond the territorial United States.

Second, Boumediene explicitly focused only on Part II of

Eisentrager, which concerned the availability of a habeas writ

for a detainee in Landsberg Prison in Germany. In fact, the

11

Court carefully cabined its understanding of de facto

sovereignty to the availability of habeas corpus, explaining that

“practical considerations [] were integral to Part II” of

Eisentrager. Id. at 763 (majority opinion); see also id.

(explaining that Part II was substantially about “practical

barriers to the running of the writ” and the “objective degree of

control the United States asserted over” the prison). When

setting forth factors “relevant in determining the reach of the

Suspension Clause,” the Court again emphasized Part II of

Eisentrager. Id. at 766. And the opinion concluded, “[i]t bears

repeating that our opinion does not address the content of the

law that governs petitioners’ detention.” Id. at 798 (emphasis

added); see also id. at 787 (“The extent of the showing required

of the Government in these cases is a matter to be

determined.”). The Court applied its de facto sovereignty test

for assessing the reach of the writ of habeas corpus but

repeatedly emphasized that its holding and reasoning applied

only to the reach of the writ. 3

Furthermore, the Boumediene Court left untouched Part III

of Eisentrager, in which the Court squarely held that enemy

aliens detained outside United States territory are beyond the

ambit of the Due Process Clause. Eisentrager, 339 U.S. at 781–

85. The Court has never questioned, let alone overruled, that

part of Eisentrager. Unlike Part II, on which the Boumediene

majority relied, Part III of Eisentrager makes no mention of

practical considerations against the application of due process

3

Moreover, four dissenting justices categorically rejected the de

facto sovereignty test for determining the reach of the Constitution.

See id. at 849 (Scalia, J., dissenting) (“Today the Court warps our

Constitution in a way that goes beyond the narrow issue of the reach

of the Suspension Clause, invoking judicially brainstormed

separation-of-powers principles to establish a manipulable

‘functional’ test for the extraterritorial reach of habeas corpus.”).

12

and other constitutional rights to aliens abroad. Rather, the

Court recognized the categorical rule that “the Constitution

does not confer a right of personal security or an immunity

from military trial and punishment upon an alien enemy

engaged in the hostile service of a government at war with the

United States.” Id. at 785.

Finally, on the concurrence’s understanding of

Boumediene, it must now be an open question whether aliens

outside the territorial United States enjoy all constitutional

rights. The concurrence emphasizes the most general

statements in Boumediene. Concurring Op. 2–4. But that fails

to answer the relevant question, namely whether Boumediene’s

holding extends beyond the Suspension Clause to the Due

Process Clause. Neither the majority nor the concurrence

attempt the detailed historical approach of Boumediene to

determine whether the Due Process Clause should also follow

de facto sovereignty. Nor could they without running headlong

into Eisentrager. Instead, they merely assume the running of

the writ to Guantanamo means the rest of the Constitution may

follow. If the application of the Due Process Clause at

Guantanamo is an open question, so apparently is the

application of the First, Fourth, Fifth, and Sixth Amendments. 4

4

In overturning this court’s decision in Eisentrager, the Supreme

Court emphasized the absurdity of allowing extraterritorial

application of the Due Process Clause, because it “would mean that

during military occupation irreconcilable enemy elements, guerrilla

fighters, and ‘were-wolves’ could require the American Judiciary to

assure them freedoms of speech, press, and assembly as in the First

Amendment, right to bear arms as in the Second, security against

‘unreasonable’ searches and seizures as in the Fourth, as well as

rights to jury trial as in the Fifth and Sixth Amendments.”

Eisentrager, 339 U.S. at 784.

13

That should ensure full employment for detainee counsel in the

years to come.

Formal territorial sovereignty has always governed the

reach of our Constitution, with the sole exception recognized

in Boumediene for the unique procedural protection of the writ

of habeas corpus. As this court explained in Rasul,

“Boumediene disclaimed any intention to disturb existing law

governing the extraterritorial reach” of substantive

constitutional rights and therefore left in place the blackletter

rule that the Constitution does not apply to aliens outside the

United States. 563 F.3d at 529; see also Al Hela, 972 F.3d at

140–41. If Boumediene left any doubt on this front, in the years

since that case was decided the Supreme Court has reaffirmed

both Eisentrager’s specific holding as well as the more general

principle that the Constitution does not confer any rights on

aliens outside the territorial United States. AID, 140 S. Ct. at

2086. The majority simply fails to explain how its decision may

be squared with Eisentrager and the unbroken line of Supreme

Court and circuit precedent faithfully applying it. Eisentrager’s

holding that the Due Process Clause does not apply to aliens

outside the territory of the United States remains good law, and

we are bound by that holding.

Even on the majority’s view that Boumediene silently

invited a constitutional sea change, that interpretation does not

permit this court to ignore Eisentrager. We are bound by that

decision because when the Court’s precedent “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 [the

Supreme] Court the prerogative of overruling its own

decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc.,

490 U.S. 477, 484 (1989).

14

The majority claims it is an open question whether aliens

detained at Guantanamo may benefit from the protections of

the Due Process Clause. But Boumediene did not leave the

question open; it left the Court’s previous answer in place.

C.

When Eisentrager was decided in 1950, it was not

necessary to provide a lengthy justification for the conclusion

that the Constitution had no application to aliens outside of

sovereign territory because the principle was so well

established and fundamental. “Such extraterritorial application

of organic law would have been so significant an innovation in

the practice of governments” as to be wild and outlandish.

Eisentrager, 339 U.S. at 784. The majority’s revisionist

assumption that the Due Process Clause may apply to aliens

outside the territorial United States suggests this fundamental

legal principle has been lost or obscured. I therefore explain

why the majority’s framework is at odds with the text,

structure, and original meaning of the Constitution. 5

5

I agree with Judge Randolph that after Boumediene al-Hela is

entitled only to the “Privilege of the Writ of Habeas Corpus,” as

guaranteed by the Suspension Clause. U.S. CONST. art. I, § 9, cl. 2.

See Randolph Op. 5, 9–11. In 28 U.S.C. § 2241(e)(1), Congress

stripped the federal courts of jurisdiction to review habeas petitions

by detainees such as al-Hela. Boumediene held section 2241(e)(1)

unconstitutional only to the extent that the provision violated the

Suspension Clause. Section 2241(e)(1) therefore still operates to

strip federal courts of jurisdiction to conduct any habeas review not

guaranteed by that Clause. While we have jurisdiction to review al-

Hela’s petition under 28 U.S.C. § 2241(a), that jurisdiction now

extends only to those claims encompassed by the habeas writ as

preserved in the Suspension Clause.

15

The Constitution was established by “We the People of the

United States.” U.S. CONST. pmbl. As this language conveys,

the Constitution “was ordained by the people, and, when duly

ratified, it became the Constitution of the people of the United

States.” Hawke v. Smith, 253 U.S. 221, 226 (1920). The

American people sought “to form a more perfect Union,

establish Justice, insure domestic Tranquility, provide for the

common defence, promote the general Welfare, and secure the

Blessings of Liberty to ourselves and our Posterity.” U.S.

CONST. pmbl. The Constitution also establishes what counts as

“the supreme Law of the Land.” U.S. CONST. art. VI. By its

plain terms, the Constitution applies to the people of the United

States and to those within its territorial borders. See United

States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318 (1936)

(“Neither the Constitution nor the laws passed in pursuance of

it have any force in foreign territory unless in respect of our

own citizens.”); Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)

(“These provisions are universal in their application, to all

persons within the territorial jurisdiction.”).

The majority makes no effort to demonstrate how the due

process claims brought by al-Hela are preserved by the Suspension

Clause. Judge Randolph suggests the common law writ at the time

of the Founding did not permit review of claims like the ones at issue

in this case. While this may be correct, I take it as a difficult question

unnecessary to resolve here, particularly in light of the Supreme

Court’s unwillingness to define the boundaries of the writ’s

constitutional protection. Thuraissigiam, 140 S. Ct. at 1969 & n.12

(considering the writ as it existed in 1789, but declining to address

its scope and concluding only that “the writ has never encompassed

respondent’s claims” because he requested relief for the purpose of

entering the United States). As the majority rests solely on the

assumption that the Due Process Clause applies at Guantanamo, I

explain why that Clause does not extend beyond our territorial

borders.

16

At the time of the Founding, law was “limited to persons

and things within the territory over which a government

exercised sovereignty.” J. Andrew Kent, A Textual and

Historical Case Against a Global Constitution, 95 GEO. L.J.

463, 486 (2007). See generally id. at 485–505. At the root of

this principle was the understanding that protection and

obligation were reciprocal—those who were subject to the

sovereign’s authority and obeyed his laws in turn received the

sovereign’s protection. See generally Philip Hamburger,

Beyond Protection, 109 COLUM. L. REV 1823 (2009). As Sir

Edward Coke put it, protection and obligation were a “duplex

et reciprocum ligamen,” a dual and reciprocal bond. Calvin’s

Case (1608) 77 Eng. Rep. 377, 382, 7 Co. Rep. 1 a, 5 a; see

also id. at 382, 7 Co. Rep. at 4 b (stating that, “as the subject

oweth to the King his true and faithful ligeance and obedience,

so the Sovereign is to govern and protect his subjects”). In

Blackstone’s phrasing, “[a]llegiance is the tie, or ligamen,

which binds the subject to the king, in return for that protection

which the king affords the subject.” 1 WILLIAM BLACKSTONE,

COMMENTARIES *354; see also Hamburger, 109 COLUM. L.

REV. at 1838–40 (collecting authorities). This fundamental

principle was also explicitly incorporated in multiple state

constitutions. See, e.g., N.C. CONST. OF 1776 pmbl.

(“Allegiance and Protection are in their nature reciprocal, and

the one should of right be refused, when the other is

withdrawn.”); N.J. CONST. OF 1776 pmbl. (“Allegiance and

Protection are, in the Nature of Things, reciprocal Ties, each

equally depending upon the other, and liable to be dissolved by

the other’s being refused or withdrawn.”).

From this understanding of territorial sovereignty it

followed that the government’s legal protections could extend

to resident aliens of friendly nations but not to nonresident

aliens. In Blackstone’s words, “as the prince affords his

protection to an alien, only during his residence in this realm,

17

the allegiance of an alien is confined (in point of time) to the

duration of such his residence, and (in point of locality) to the

dominions of the British empire.” 1 WILLIAM BLACKSTONE,

COMMENTARIES *358. This understanding—that legal

protections were due to aliens only when they entered the realm

of the sovereign—was widespread. Coke expressed this view

in Calvin’s Case. See 77 Eng. Rep. at 383, 7 Co. Rep. at 5 b

(“[W]hen an alien that is in amity cometh into England,

because as long as he is within England, he is within the King’s

protection; therefore so long as he is here, he oweth unto the

King a local obedience or ligeance, for that the one (as it hath

been said) draweth the other.”). Emmerich de Vattel, “the

founding era’s foremost expert on the law of nations,”

Franchise Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1493

(2019), also maintained the sovereign had the power to admit

foreigners and those who entered did so “only upon this tacit

condition, that [they] be subject to the laws,” EMMERICH DE

VATTEL, THE LAW OF NATIONS 172 (G.G. & J. Robinson ed.

1797) (1758). Correspondingly, “as soon as [the sovereign]

admits them, he engages to protect them as his own subjects,

and to afford them perfect security, as far as depends on him.”

Id. at 173. John Locke similarly recognized the reciprocal

obligations between the government and resident aliens. See

JOHN LOCKE, SECOND TREATISE OF GOVERNMENT § 122 (C.B.

Macpherson ed., Hackett Publishing Co., Inc. 1980) (1690)

(“[T]hus we see, that foreigners, … living all their lives under

another government, and enjoying the privileges and protection

of it … are bound, even in conscience, to submit to its

administration, as far forth as any denison.”).

The leading legal authorities of the eighteenth century

consistently expressed the same theory of obligation and

protection—friendly aliens within a nation’s territory must

submit to the laws of that nation and in turn would be protected

18

by its laws—but both the protection and obligation stopped at

the nation’s territorial borders.

American law early recognized this territorial view. In the

debates concerning the Alien and Sedition Acts, Democratic-

Republicans suggested that resident aliens should enjoy the

protection of American law—precisely because, by residing in

the country, they owed it their allegiance. James Madison

argued that “[a]liens are not more parties to the laws than they

are parties to the Constitution; yet it will not be disputed that,

as they owe, on one hand, a temporary obedience, they are

entitled, in return, to their protection and advantage.” 4

DEBATES ON THE FEDERAL CONSTITUTION 556 (Jonathan Elliot

ed., 2d ed. 1836); see also Gerald L. Neuman, Whose

Constitution?, 100 YALE L.J. 909, 934–38 (1991) (discussing

the theory of “municipal law” adopted by the Jeffersonians

over the course of the debate). No one advanced the position

that resident aliens would have been entitled to constitutional

rights absent the obedience they owed to the United States by

virtue of their physical presence. “[G]iven the poles of debate

in the 1790s—Federalists denying that any aliens had

constitutional rights; Republicans arguing that friendly aliens

resident in the United States had constitutional rights—it is

difficult to imagine that any thought that nonresident aliens

located abroad had constitutional rights, especially during

military conflicts.” Kent, 95 GEO. L.J. at 531.

The territorial understanding endured in the following

decades. As a Representative, John Marshall stated that “the

jurisdiction of a nation extends to the whole of its territory, and

to its own citizens in every part of the world.” 10 ANNALS OF

CONG. 597 (1800). As Chief Justice, Marshall described “full

and absolute territorial jurisdiction” as “being alike the

attribute of every sovereign, and being incapable of conferring

extra-territorial power.” The Schooner Exchange v. McFaddon,

19

11 U.S. (7 Cranch) 116, 137 (1812). Future Justice Henry

Baldwin similarly declared as a member of Congress that “out

of the territorial limits of the United States, … our laws or

Constitution have no operation, except as between us and our

own citizens.” 33 ANNALS OF CONG. 1042 (1819). In his

commentary on the conflict of laws, Justice Story stated “the

laws of one country” can “bind only its own subjects, and

others, who are within its jurisdictional limits; and the latter

only while they remain there.” JOSEPH STORY, COMMENTARIES

ON THE CONFLICT OF LAWS FOREIGN AND DOMESTIC § 7

(1834).

This territorial reasoning was subsequently recognized and

reaffirmed in an uncontested line of Supreme Court decisions

that span the length of the nineteenth and twentieth centuries.

See The Schooner Exchange, 11 U.S. (7 Cranch) at 137;

Pennoyer v. Neff, 95 U.S. 714, 722 (1878) (“[I]t is laid down

by jurists, as an elementary principle, that the laws of one State

have no operation outside of its territory, except so far as is

allowed by comity.”); In re Ross, 140 U.S. 453, 464 (1891)

(“By the Constitution a government is ordained and established

‘for the United States of America,’ and not for countries

outside of their limits,” and “[t]he Constitution can have no

operation in another country.”); United States v. Belmont, 301

U.S. 324, 332 (1937) (“[O]ur Constitution, laws and policies

have no extraterritorial operation, unless in respect of our own

citizens.”).

The Supreme Court later explicitly held that constitutional

rights were retained by American citizens even when outside

the territorial United States. See Reid v. Covert, 354 U.S. 1, 5–

6 (1957) (plurality opinion). This decision turned on the unique

nature of citizenship, a concept “as old as government.” Id. at

6; see also id. at 14 (“[H]ere the basis for governmental power

is American citizenship.”). This emphasis on citizenship was

20

nothing new: “Citizenship as a head of jurisdiction and a

ground of protection was old when Paul invoked it in his appeal

to Caesar.” Eisentrager, 339 U.S. at 769. By contrast, it was

beyond dispute that aliens outside the United States have no

constitutional rights.

The original meaning of the Constitution and subsequent

historical practice confirm that constitutional rights do not

extend to aliens without property or presence in the sovereign

territory of the United States.

***

The Due Process Clause does not apply to aliens detained

at the Guantanamo Bay Naval Station because it is located

outside the sovereign territory of the United States. That

territorial limitation controls under the Constitution and our

precedents. We have never applied a de facto sovereignty test

to determine the reach of substantive constitutional rights. See

Boumediene, 553 U.S. at 753–54; Kiyemba I, 555 F.3d at 1026

n.9. Moreover, the majority’s assumption that the Due Process

Clause applies at Guantanamo Bay cannot be squared with the

Constitution’s text, structure, and history.

As an alien detained abroad, al-Hela cannot claim the

protections of the Due Process Clause either with respect to his

detention or the procedures for reviewing his petition for a writ

of habeas corpus. After Boumediene, al-Hela’s habeas petition

must simply be reviewed in accordance with the Suspension

Clause and our cases applying that provision to detainees. As

the majority agrees, these standards were readily met in this

case.

21

II.

Instead of following this well-trod path, the majority

asserts a clear constitutional field. The government and the

district court are now informed it is an “open question” whether

the Due Process Clause applies to Guantanamo detainees. The

majority, however, does not decide that supposedly open

question. Instead it clings to the maxim that “courts must

choose the narrowest constitutional path to decision.” Maj. Op.

14 (quoting Ass’n of Am. R.Rs. v. U.S. Dep’t of Transp., 896

F.3d 539, 544 (D.C. Cir. 2018)). Particularly for lower courts,

it is often preferable to avoid deciding a constitutional question

when a narrower ground of decision is available. This principle

respects the separation of powers because courts should refrain

from rendering unnecessary pronouncements of constitutional

law that may constrain the actions of the co-equal branches of

government.

The claim to restraint rings hollow, however, because in

the face of contrary precedent the majority assumes the Due

Process Clause applies at Guantanamo, and then proceeds to

decide numerous constitutional questions that are actually

open. The majority also effectively holds that substantive due

process applies to Guantanamo detainees by remanding one of

al-Hela’s claims. And finally, the majority casually suggests

the laws of war may limit the President’s detention authority

under the AUMF, a proposition flatly contradicted by our

caselaw. Ignoring established Supreme Court and circuit

precedent, the majority issues significant constitutional

holdings and blazes a wide and winding trail in the wrong

direction.

A.

Despite the claim to be following a “narrowe[r]

constitutional path,” the majority has in fact decided

22

consequential questions of constitutional law. It has taken the

“unappealing” approach of “crafting a hypothetical standard

for a hypothetical constitutional right.” Stop the Beach

Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702,

718 (2010) (plurality opinion). Consistent with the power of

Article III courts to decide cases and controversies, it would

have been “[b]etter simply to state and apply the law

forthrightly than to hold our view of the law in pectore, so that

we can inquire into matters beyond our charter, and probably

beyond our ken.” Nat’l Aeronautics & Space Admin. v. Nelson,

562 U.S. 134, 165 (2011) (Scalia, J., concurring in the

judgment). Certainly here it would have been more forthright

to decide the purportedly “open” question of whether the Due

Process Clause applies to an enemy alien outside the United

States. Instead, the majority assumes the Due Process Clause

applies and undertakes a painstaking review of what a

hypothetical due process right would require, creating

significant constitutional holdings along the way.

At the outset, the majority suggests the procedures

demanded by the Due Process Clause are identical to those

required by the Suspension Clause for habeas petitions brought

by Guantanamo detainees. Maj. Op. 22–25. This constitutional

holding is an innovation and a profoundly significant and broad

one. It does not rest on Boumediene, which explicitly

disclaimed this conclusion, 553 U.S. at 798, or on any other

Supreme Court or circuit decision. Embarking on uncharted

territory, the majority discovers that the judicial descriptions of

a detainee’s rights under the Suspension Clause are similar to

the descriptions, in entirely other domestic contexts, of the

rights guaranteed by the Due Process Clause. Maj. Op. 22; see

also Maj. Op. 38 (finding the procedures employed by the

district court that satisfy the Suspension Clause also

“coincidentally” satisfy the requirements of the Due Process

Clause).

23

Because stating for the first time that the protections of the

Suspension Clause and the Due Process Clause are equivalent

is not enough to dispose of this case, the majority must go

further, deciding each of al-Hela’s specific claims. Belying the

claim of judicial minimalism, the majority also forgives al-

Hela’s forfeiture of two claims in order to reach them. Maj. Op.

18–19. The caselaw in this area is scant, and so to decide al-

Hela’s procedural due process claims, the majority necessarily

must break new ground with each determination. The majority

holds:

1. Determining the legality of an enemy combatant’s

detention on a preponderance of the evidence standard

is consistent with procedural due process, and such

detentions are distinguishable from civil commitments.

Maj. Op. 31–34.

2. Applying a “rebuttable presumption of accuracy and

authenticity to any evidence the government presents,”

including the types of evidence unique to showing the

legality of detaining an enemy alien, is consistent with

due process. Maj. Op. 34–36 (cleaned up).

3. Admitting hearsay in proceedings to judge the legality

of an enemy alien’s detention is consistent with due

process. Maj. Op. 36–39.

4. Admitting ex parte evidence can be consistent with due

process, but anything less than the very high level of

scrutiny the district court gave to the government’s

requests to submit ex parte evidence likely would not

be. Maj. Op. 39–45.

These are substantial constitutional holdings that cannot be

cabined to the specific facts of this case. Determinations of due

process turn on context, which requires courts to weigh

24

competing interests. When new circumstances arise, courts

invariably draw comparisons with the balance made in other

contexts to determine what process is due. 6 The majority’s

comparison of al-Hela’s detention to civil commitments

demonstrates the inevitability of this type of comparative

analysis. See Maj. Op. 31–33 (distinguishing this case from

Addington v. Texas, 441 U.S. 418 (1979)). Although the

majority asserts these holdings “resolve solely those claims in

this case,” Maj. Op. 14, its decision and reasoning set a new

benchmark for due process balancing that will impact future

decisions.

Moreover, the majority resolves al-Hela’s claims by

applying a watered-down version of the Due Process Clause to

accommodate the procedures applied at Guantanamo. This

limited view of due process threatens to undermine procedural

protections in the very contexts where they actually apply.

Failing to decide the threshold question here leads the

majority to render a series of entirely unnecessary

constitutional decisions. The majority correctly observes that

courts “should never anticipate a question of constitutional law

in advance of the necessity of deciding it.” Maj. Op. 14

(cleaned up). Yet by deciding what due process requires in the

6

See, e.g., Wilkinson v. Austin, 545 U.S. 209, 228–29 (2005)

(comparing the procedures required to place a prisoner in a

“Supermax” facility with those required to revoke parole or “good-

time credits”); Goldberg v. Kelly, 397 U.S. 254, 263–64 & n.10

(1970) (comparing the process required to terminate welfare benefits

with the process required to end government employment or tax

exemptions); Hamdi, 542 U.S. at 575 (Scalia, J., dissenting)

(decrying the plurality’s use of the same balancing test as “a case

involving … the withdrawal of disability benefits!”).

25

context of enemy detentions abroad, the majority does

precisely that.

If the majority believes aliens detained at Guantanamo are

entitled to protections of the Due Process Clause, despite

Eisentrager and its progeny, then it should declare its view of

the law rather than “coyly not[e] that the right is ‘assumed’

rather than ‘decided.’” Nelson, 562 U.S. at 165 (Scalia, J.,

concurring in the judgment). Perhaps implicitly recognizing

that such a forthright acknowledgment would fly in the face of

the Supreme Court’s unwavering adherence to Eisentrager, the

court instead charts a new path through the procedural due

process thicket.

B.

The majority also extends the reach of “substantive due

process.” Without a word of explanation, the majority simply

assumes without deciding that substantive due process

guarantees against punitive and arbitrary detention apply to

alien detainees at Guantanamo. See Maj. Op. 45. Whatever

implications Boumediene might have for procedural due

process, none of the Court’s analysis pertains to substantive

due process. The question supposedly left open by Boumediene

is “what detention review procedures are required by the Due

Process Clause.” Maj. Op. 13 (emphasis added). The

arguments about procedural due process remaining an open

question are misplaced for the reasons already discussed, but

absolutely nothing in Boumediene suggests that substantive

constitutional guarantees might apply extraterritorially or that

de facto sovereignty should generally determine the reach of

the Constitution. Boumediene was concerned purely with “the

fundamental procedural protections of habeas corpus.” 553

U.S. at 798; see also id. at 802 (Roberts, C.J., dissenting)

(“Habeas is most fundamentally a procedural right, a

26

mechanism for contesting the legality of executive

detention.”). “It bears repeating,” the Boumediene Court

insisted, “that our opinion does not address the content of the

law that governs petitioners’ detention.” Id. at 798 (majority

opinion) (emphasis added).

The majority applies substantive due process to

Guantanamo detainees notwithstanding that Boumediene on its

face was concerned entirely with procedural guarantees,

notwithstanding that the majority itself understands

Boumediene entirely in this sense, and notwithstanding that this

circuit has plainly held that substantive due process guarantees

do not apply to Guantanamo detainees. Kiyemba I, 555 F.3d at

1026–27 (recognizing substantive due process does not apply

extraterritorially); see also Ali, 959 F.3d at 369 (finding a

detainee’s argument “that the Due Process Clause’s substantive

protections apply with full force to all detainees at Guantanamo

Bay … runs crosswise with this court’s decision” in

Kiyemba I). It seems these precedents have been abrogated sub

silentio by the en banc court.

Assuming substantive due process applies at Guantanamo,

the majority remands one of al-Hela’s claims to the district

court for further review. The majority claims to withhold

judgment on how the legal question should be resolved. But by

remanding, the majority has effectively determined that al-Hela

is entitled to the protections of substantive due process. The

majority recognizes the district court “need only reach the

merits of the overlapping substantive due process claim if it

finds that the claim is not moot and that the statutory claim is

without merit.” Maj. Op. 50. Alt

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