The U.S. Court of Appeals for the D.C. Circuit will hear oral arguments today in Abdul Razak Ali v. Trump, a case whose central question is whether the Due Process Clause applies to limit the length of detention at Guantanamo Bay. Forty men remain detained at Guantanamo Bay, but only nine have been charged or convicted. Five of those 40 have been cleared for transfer, but they remain detained with no apparent chance of release. Appellant Ali, who has been detained at Guantanamo without charge or trial for more than 17 years, argues that:

  • The Constitution’s Due Process Clause applies at Guantanamo.
  • D.C. Circuit precedent does not foreclose the application of the Due Process Clause.
  • Ali’s continuing detention violates due process.
  • The 2001 Authorization for Use of Military Force limits continuing detention at Guantanamo.

Judges Judith W. Rogers, Patricia A. Millet, and A. Raymond Randolph will hear the arguments.  The appellant’s brief is available here, and the government’s brief is here.

Several friends of the court submitted amicus briefs in the case, as well.

The amicus brief of my organization, Human Rights First, explains why the Guantanamo Bay Periodic Review Board (PRB), the discretionary administrative review body that decides whether to clear a Guantanamo detainee for release or transfer, is inherently limited and woefully flawed. The PRB, which has become a “one-way ratchet” for continued detention, is not charged with reviewing the legality of an individual’s continued detention under the 2001 Authorization for Use of Military Force or laws of war, let alone the Constitution, highlighting the need for meaningful judicial review in Guantanamo cases. Human Rights First has served as an independent observer of the PRBs since 2014, tracking and analyzing the proceedings at the Pentagon since shortly after they began.

Another brief, submitted by Guantanamo detainees Tofiq Nasser Awad al Bihani and Abdul Latif Nasser, highlights the situation of the individuals whom the government continues to detain at Guantanamo Bay, despite the executive branch clearing them for release. Their cases, they argue, demonstrate “how deferring to the whims of the political branches in such a situation leads to absurd, arbitrary, and unconscionable results,” and that “[t]he only way for such results to be avoided is for the Court to apply reasonable procedural and substantive due process safeguards to Guantánamo.”

Lastly, Professor Eric Janus of the Mitchell Hamline School of Law in St. Paul, Minnesota, filed an amicus brief explaining how “[t]he status of the remaining detainees at Guantánamo Bay […] presents many of the same quandaries as with civil commitment.” As the brief explains, Janus “has written extensively about civil commitment for sexually violent persons, and the limitations the U.S. Constitution imposes on the ability of the government to detain supposedly dangerous people at length without criminal charge or conviction.” He notes that “while the procedures and protections afforded civil detainees are far from perfect, the government’s solution now before this Court is a far cry from the minimum safeguards” civil detainees receive.

Almost 18 years after 20 Afghan men were brought to the naval base in Cuba, Guantanamo continues to drain U.S. resources, and as President George W. Bush put it, serves as “a propaganda tool for our enemies” and “a distraction for our allies.” It’s now up to the D.C. Circuit to decide whether to shift the untenable status quo of indefinite detention at Guantanamo.

IMAGE: A guard tower is seen outside the fencing of Camp 5 at the US Military’s Prison in Guantanamo Bay, Cuba on January 26, 2017. (Photo by THOMAS WATKINS/AFP via Getty Images)