The D.C. Circuit recently heard argument in Al Bahlul v. United States, where the defendant has made a series of constitutional challenges to the Guantanamo military commissions.  (Steve’s summary of the argument is here).  While the primary focus has been on Bahlul’s claim that commission prosecutions of non-international-law-of-war offenses exceed Congress’ authority under Article I and violate the jury trial guarantee of Article III, Bahlul has also argued that commissions violate equal protection by discriminating against non-citizens.  (The 2006 Military Commissions Act specifies that only non-citizens can be prosecuted in commissions).  To consider this claim on the merits, however, the D.C. Circuit will first need to find that the Due Process Clause (and thus its equal protection component) applies at Guantanamo.

In light of the Supreme Court’s 2008 decision in Boumediene v. Bush, the application of the Due Process Clause to Guantanamo should have followed as a matter of course given the close relationship between due process and habeas.  In holding that the Suspension Clause applies to Guantanamo, Boumediene rejected the proposition that constitutional rights apply only to U.S. citizens and noncitizens within the sovereign United States, instead requiring courts to determine whether the extraterritorial application of a particular right is impracticable or anomalous under the circumstances.  It is difficult to see how the Suspension Clause applies to challenges to indefinite detention at Guantanamo but the Due Process Clause does not, particularly given the Supreme Court’s understanding of the former to encompass the type of meaningful opportunity to be heard traditionally associated with the latter under Mathews v. Eldridge and related decisions.  The same factors analyzed in Boumediene—the detainees’ citizenship and status;  the circumstances surrounding their capture and detention; and the practical obstacles to judicial review—are relevant to whether they are protected against unlawful detention by the Due Process Clause. (See this ACLU amicus brief that I co-authored for a fuller explication of this argument). The Court did not address the Due Process Clause in Boumediene because it was not presented, but it nevertheless interpreted the Suspension Clause to mean more than judicial review of the government’s authority to detain and to encompass a due process-like hearing in which the detainees could challenge the government’s factual assertions.   It would be neither impracticable nor anomalous, therefore, to examine the detentions against the Due Process Clause.

Less than one year later, however, the D.C. Circuit stated in Kiyemba v. Obama that “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.”   Kiyemba was written by Judge A. Raymond Randolph, who not only vigorously opposed the application of any constitutional rights to Guantanamo detainees before Boumediene, but who publicly railed against Boumediene after it was issued.  Randolph ignored entirely Justice Kennedy’s analysis calling for a functional, and not a formal, approach to the Constitution’s application to non-citizens outside the U.S.  Despite its glaring doctrinal inadequacy, Kiyemba nevertheless has effectively precluded judges within the D.C. Circuit from finding that the Fifth Amendment applies to prisoners there.

In describing the oral argument in Bahlul, Steve previously highlighted the government’s concession that the Due Process Clause applies to military commission defendants.  As Steve noted, this concession could impact due process challenges by other commission defendants even if the Court were to reach and reject Bahlul’s equal protection claim.   But having read the argument transcript, which was just released last week, I am considerably less sanguine than Steve that the government made any such concession.  The relevant colloquy (Transcript, pp. 24-26) appears to concede at most that the D.C. Circuit has not addressed the Due Process Clause/equal protection challenge in commission cases.  The government instead concentrates its argument on why the equal protection claim should be rejected on the merits under rational basis review.

If the D.C. Circuit panel rules for Bahlul on his Article I or Article III claim, it will not have to decide his equal protection challenge or, by extension, revisit the Due Process Clause’s application to Guantanamo.  But regardless, the D.C. Circuit should take this opportunity to address the misguided language of Kiyemba.  It should not distinguish Kiyemba based on a civil-criminal line (as Bahlul’s attorney argued,Transcript pp. 20-23), as that distinction would be inconsistent with the approach required under Boumediene.   Put simply, how can the Due Process Clause apply to military trials, but not to prolonged indefinite detention without trial when the functional considerations surrounding the judicial inquiry are virtually identical and where judges are already engaging in a due process-like analysis under the Suspension Clause.  Moreover, a bright-line civil-criminal distinction, while perhaps easier for Bahlul’s attorney to draw and helpful in challenging Bahlul’s conviction, would not necessarily aid Bahlul in the long-run, as he presumably will still be detained indefinitely, along with the other 140-plus prisoners at Guantanamo, if his conviction is invalidated.  While one panel cannot overrule another, the Bahlul panel should limit Kiyemba strictly to its facts: a due process challenge in connection with a non-citizen’s substantive right to be granted entry into the United States when an offer of resettlement abroad in an “appropriate” country is made in good faith and remains available.  Doing so would pave the way for other judges, including on the district court, to recognize the Due Process Clause’s application to detention challenges.

One might reasonably ask how much any of this matters given the apparent hostility of judges—and D.C. Circuit judges, in particular—to efforts by Guantanamo prisoners to challenge their confinement.  Moreover, Kiyemba notwithstanding, the D.C. Circuit has in other contexts assumed without deciding that the constitution applies to other types of challenges, such as the right to be free of unwanted medical treatment.  But, if anything, these other decisions suggest that Kiyemba’s effort to resurrect categorical restrictions on the Constitution’s application to “aliens without persons or property in the sovereign territory of the United States” has little support among some D.C. Circuit judges.  Indeed, in the D. C. Circuit’s prior en banc ruling in Bahlul, which rejected the defendant’s ex post facto challenge to his conviction (but remanded his other constitutional challenges that were the subject of the last month’s argument before the original panel), five of the seven judges indicated that the Suspension Clause is not the limit of constitutional rights at Guantanamo.

After 12-plus years of litigation—and 6-plus years since Boumediene addressed the Constitution’s application to Guantanamo—proper guidance on the Fifth Amendment is long overdue.  Recognizing the Fifth Amendment’s application to Guantanamo could have a significant impact on at least three types of claims: first, that a prisoner, in fact, is part of or substantially supported al Qaeda or an associated force, thus making him eligible for law-of-war detention for the duration of the armed conflict under the 2001 Authorization for Use of Military Force (AUMF); second, that even if a prisoner meets the threshold criteria for initial AUMF detention, he should not continue to be detained because he no longer poses a material threat (even if the armed conflict itself continues); and third, that continued detention of those whom the government has administratively cleared for release is arbitrary and capricious.   While these issues have been raised in one form or another in the ongoing detainee habeas litigation, courts have not considered them under due process jurisprudence, which, in number of respects, is richer and more robust than the executive-detention habeas jurisprudence that courts have employed thus far.  For example, recognizing that the Due Process Clause applies to Guantanamo detainees would enable judges to draw upon jurisdprudence developed in other noncriminal contexts, such as civil commitment, and to develop the kind of analysis initiated in Hamdi v. Rusmfeld.  While Hamdi involved a U.S. citizen, a due process analysis would be sensitive to the length of time individuals were held and, potentially, to the disparate circumstances surrounding their respective capture and connection to enemy forces covered by the AUMF.   In short, even if it leads only to dicta, Bahlul offers a chance to move the Due Process-ball in the right direction.