The US Court of Appeals for the DC Circuit grappled on Thursday with the question of whether to issue a significant decision about the due process rights of Guantanamo detainees – a case that has put the Biden administration on complicated footing as the President has looked for ways to finally close the US prison in Cuba.
The case was brought by a Yemini detainee who has been detained for nearly two decades without facing a formal charge or trial. He is arguing that the DC district court did not meet its due process obligations when considering his challenge to his detention.
On Thursday, the full appeals court was reviewing a panel appellate opinion that concluded that Guantanamo detainees have no right to due process. Some of the appellate judges signaled their reluctance to address that broad constitutional question, if a statutory or other narrower approach was available. But other judges said that the court could probably not escape in this case weighing in on constitutional rights of the detainee.
The Justice Department is pushing for a narrow decision that would say that the due process rights of the detainee, Abdulsalam al-Hela, were not violated in how the trial court handled his case, but would stop short of saying whether the US Constitution affords detainees the same rights it affords US citizens.
The legal debate around the due process rights of Guantanamo detainees has raged since the war on terror was in its infancy and has repeatedly vexed courts.
A 2008 Supreme Court decision enshrined the right that noncitizen detainees have to go to a federal court to challenge their detentions. But whether they’re entitled to the Constitution’s full protections under the due process clause remains an open legal question.
At times during Thursday’s hearing, the appellate judges were skittish at the prospect of visiting that question, even as their move to review the panel’s ruling set expectations that they would.
Abdulsalam al-Hela was detained in 2004 and when he challenged his detention in federal court, the trial judge found that he had given substantial support to al Qaeda-supported groups – a finding that would allow the government to continue to detain him. The case was then appealed to the DC circuit and when it was in front of a three-judge panel, the Trump administration argued that Guantanamo detainees had no due process rights.
The Justice Department has since recalibrated with the new administration and is now arguing the full appeals court should not reach a conclusion on due process clause question for detainees. Adding another wrench to the proceedings is that this summer, al-Hela was cleared for transfer out of Guantanamo by the Periodic Review Board, an executive branch entity that assesses whether detainees still pose a national security risk that justifies their detention at Guantanamo. Under that determination, however, al-Hela’s release will come with conditions and will have to wait until the government finds a country for resettlement that it feels will satisfy its security concerns.
Several judges at Thursday’s hearing pointed to the interest in avoiding a constitutional finding when a narrower opinion will suffice. Yet Judge Neomi Rao – the Trump appointee who wrote the panel decision – asserted that there was likely no way to decide to case without weighing in al-Hela’s constitutional claims. She said that the arguments that the Justice Department put forward as an alternative to deciding the due process claims may be just as sweeping as confronting the due process question directly.
“I don’t see how we manage to avoid deciding a constitutional question in this case,” Rao said.
Several judges grilled the Justice Department, represented by Sarah Harrington, on the procedures trial courts use when considering challenges Guantanamo detainees bring to their detentions. al-Hela is arguing that because the government, citing national security concerns, withheld from him certain evidence during the trial court proceedings, his due process rights were violated.
Harrington’s defense of these procedures – which at times include withholding certain information about a detainee’s case from the trial judge – was hamstrung Thursday by the fact that the case included classified details that she said she could discuss in a public hearing.
“If you can’t talk to the district court judge, you couldn’t talk to use about it, right? There’s this whole secret evidence thing that might very well be exculpatory, that no one gets to see, and yet we’re supposed to decide decades-long detention decisions,” Judge Patricia Millett, an Obama appointee, said.
Where would al-Hela go?
The judges also struggled with the practical implications that their ruling would have on al-Hela. Even if a court ultimately ordered his release, that release would still have to wait for the US government to find a suitable country for his resettlement – a delicate and diplomatically complex process that the government is already conducting after the review board’s transfer determination for him.
“If this were in the United States he could walk out of the prison gates, that would be fine” said Judge A. Raymond Randolph, who was appointed to the court by George H.W. Bush. “But he’s on an island, and he has to be released some place other than Cuba.”
David Zionts, al-Hela’s lawyer, said on Thursday that an order from a federal civil court would put additional pressure on the US government to figure out where and how to transfer him.
He pointed to another detainee who was granted a similar determination ten years ago and remains detained. Zionts argued that without a court order, the government will have too much discretion on how aggressively to act on its decision to clear al-Hela for transfer.
There are 10 current detainees who have been cleared by the review board for release yet remain at the prison. A former detainee who was cleared for transfer in 2016 was only resettled in his home country this year.
CNN’s Ellie Kaufman contributed to this report.