In 2008, the Supreme Court concluded in Boumediene v. Bush that detainees at Guantanamo have the right to challenge their detention through habeas corpus under the Constitution’s Suspension Clause. Yet, nearly 12 years after that decision, courts have yet to recognize that they are also protected by the Constitution’s Due Process Clause, despite the close relationship between the two provisions. Several cases—including one pending before the Supreme Court and another before the full D.C. Circuit—provide fresh opportunities to resolve this issue. Further, as Scott Roehm and Hina Shamsi have noted, these cases also present an opportunity for President Joe Biden to break with his predecessors and clarify that the U.S. government recognizes that Guantanamo detainees possess constitutional due process rights. As explained below, this issue has significant legal and practical consequences as detentions at the U.S. naval base enter their 20th year.
Until Boumediene, the U.S. government had successfully maintained that Guantanamo detainees did not possess any constitutional rights, including under the Suspension Clause, because they were noncitizens held outside sovereign U.S. territory. In Boumediene, the Supreme Court rejected that argument, concluding that the Suspension Clause applied to Guantanamo detainees and that the alternative procedure Congress had adopted (in lieu of habeas corpus) was inadequate, prompting the Court to authorize individual habeas hearings before district court judges. Notably, the Supreme Court determined that the Suspension Clause’s extraterritorial application turned not on a rigid, formalistic test but rather on a functional, multi-factored assessment that included consideration of the practical obstacles a judge faced in adjudicating a habeas petition. Given the United States’ total and exclusive control over its naval base at Guantanamo, and Guantanamo’s vast distance from a theater of war, the Boumediene Court found no legitimate grounds for denying habeas review. As Justice Kennedy explained for the Court, “In every practical sense, Guantanamo is not abroad; it is within the constant jurisdiction of the United States.” That the process the military had afforded the detainees through its Combatant Status Review Tribunals was so prone to error provided another practical circumstance mandating habeas review.
A central question in post-Boumediene litigation was whether any other constitutional rights, such as the Due Process Clause, applied to Guantanamo detainees as well under Boumediene’s functional test for extraterritorial application of the Constitution. After Boumediene, a district judge ordered the release of 17 Uighur detainees from China into the United States after the U.S. government conceded it could no longer detain them as “enemy combatants” under the AUMF and because they could not be safely returned to China. However, the D.C. Circuit reversed that decision in Kiyemba v. Obama stating, without analysis, that the “due process clause does not apply to aliens without property or presence in the United States.” This ruling seemed to revive the formalistic approach to the Constitution’s extraterritorial application that Boumediene had rejected and helped stymie further attempts to apply the Due Process Clause to Guantanamo detainees. In 2019, in Qassim v. Trump, the D.C. Circuit finally cabined the ruling in Kiyemba by clarifying that it addressed only a specific due process right to be released into the United States and did not otherwise foreclose application of the Due Process Clause at Guantanamo. However, last August, in Al Hela v. Trump, another D.C. Circuit panel, which included Judge Raymond Randolph—who has harshly criticized Boumediene—and Judge Neomi Rao—who previously joined a dissent from the denial of rehearing en banc in Qassim—ruled that Kiyemba foreclosed all application of the Due Process Clause at Guantanamo.
The D.C. Circuit is now considering a petition for rehearing en banc in Al Hela. The Supreme Court is also considering a certiorari petition in another case, Ali v. Trump, that similarly raises the question of the Due Process Clause’s application at Guantanamo. (The Biden administration’s response to the certiorari petition is due March 5). Either case provides a vehicle to reassess the application of this constitutional provision at Guantanamo.
The argument for denying due process rights at Guantanamo after Boumediene has always been weak. Although the Supreme Court did not rule on the Due Process Clause, it said the question in determining the extraterritorial application of a constitutional right is whether the application of that right would be “impracticable and anomalous,” drawing on language from the Insular Cases, which addressed the Constitution’s application to U.S. territories abroad obtained through imperial conquest. Given that Boumediene has already recognized the Suspension Clause’s application to Guantanamo, it would be neither impracticable nor anomalous to recognize the Due Process Clause’s application there given that both constitutional provisions focus on the identical question—the legality of an individual’s detention. Indeed, the Supreme Court has previously explained the close relationship between the two rights, with habeas providing “a mechanism of judicial review” and due process “inform[ing] the procedural contours of that mechanism.”
The Due Process Clause has tremendous practical significance, particularly for the approximately 20 detainees whom the government continues to hold in indefinite law-of-war detention, and who neither have been approved for transfer nor are expected to face prosecution before a military commission. Following Boumediene, district courts engaged in habeas review of individual habeas petitions. But while the Supreme Court said that the review had to be “meaningful,” there was little Suspension Clause caselaw addressing the contours of a habeas hearing challenging indefinite executive detention. This required federal judges to fashion new rules and procedures and ultimately enabled the D.C. Circuit to impose standards that made it difficult for a petitioner to prevail. By contrast, there is a substantial body of jurisprudence under the Due Process Clause from the pretrial detention and civil commitment contexts that could help level the playing field – if those precedents were applied to the armed conflict detention context at Guantanamo, they would impose a more rigorous burden on the government to justify continued detention and provide detainees with greater access to the government’s evidence. Applying this body of due process caselaw to Guantanamo detentions is warranted not only by the extraordinary length of the detentions, but also by the degree to which they no longer resemble the traditional law-of-war detention described by Justice O’Connor in Hamdi v. Rumsfeld, where confinement is predicated on a detainee’s status as a member of the opposing military force, and instead more closely resemble civilian preventive detention predicated on an individual’s alleged future dangerousness.
Most important, application of the Due Process Clause to Guantanamo would provide judges with the opportunity to address the question they have not yet answered and which, after two decades of detention, is plainly the most appropriate and salient one: whether a detainee poses such a grave threat to U.S. security that he must continue to be imprisoned. Until now, the Guantanamo habeas litigation has instead focused on a different set of questions: (1) whether, at time of capture, the detainee was part of or substantially supported al Qaeda, the Taliban, or an associated force, such that his law-of-war detention was justified under the 2001 Authorization for Use of Military Force (AUMF) and (2) whether the armed conflict with those groups remains ongoing. After all, Hamdi, the case in which the Supreme Court first found that the AUMF authorized detention of Taliban fighters captured in Afghanistan, also cautioned that application of the law of armed conflict to this war is tenuous – if the war were to look unlike those that informed the development of the armed conflict, Justice O’Connor wrote for the plurality, the understanding that detention is a fundamental incident to war until the end of hostilities could “unravel.”
Twenty years later, even for a detainee once part of an AUMF-covered force, and thus detainable on that basis, that does not warrant forever imprisonment. Instead, in line with the Due Process Clause, a court should ask whether the detainee continues to pose a significant threat, and also require the government to establish that threat by, at minimum, clear and convincing evidence, just as the government is required to do in the handful of other circumstances in which indefinite confinement has been permitted, such as for sexually violent predators.
While the Periodic Review Board (“PRB”) established in 2011 by President Barack Obama engages in a similar, forward-looking inquiry, those reviews provide only for discretionary release. The profound magnitude of the liberty deprivation—potentially lifelong detention, given the nature of the armed conflict in which the detainees were captured—requires that this process be provided in a judicial forum and be accompanied by rigorous safeguards.
In short, recognizing the Due Process Clause’s application at Guantanamo will help refocus litigation on the question of whether the remaining detainees there pose such a significant threat that they must continue to be held by the executive, without charge, even after 20 years of detention, and when the armed conflict in Afghanistan—the conflict in which they were captured—looks very different on the ground today, particularly in light of the continued withdrawal of U.S. forces. It could also provide a pathway for the Biden administration to transfer detainees to other countries, thus furthering the administration’s stated goal of finally closing Guantanamo.
Editor’s note: Readers may also be interested in “Biden Team’s Litigation Tactics on Guantanamo Undercut Biden Policy to Close the Prison,” by Jonathan Hafetz, Scott Roehm and Hina Shamsi, published on April 21, 2021.