USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 1 of 43 [ORAL ARGUMENT NOT YET SCHEDULED] No. 18-5148 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT KHALID AHMED QASSIM, Petitioner-Appellant, V. DONALD J. TRUMP, et al., Respondents-Appellees. On Appeal from the United States District Court for the District of Columbia, No. 1:04-cv-1194 (Hogan, J.) BRIEF OF APPELLANT Clive Stafford Smith Shelby Sullivan-Bennis REPRIEVE
 PO Box 72054
 London EC3P 3BZ United Kingdom Telephone: +44 207 553 8140 E-mail: clive@reprieve.org.uk E-mail: Shelby@reprieve.org Thomas B. Wilner Neil H. Koslowe Kimberly Ferguson SHEARMAN & STERLING, LLP 401 9th Street, N.W., Suite 800 Washington, DC 20004 Telephone: 202-508-8050 E-mail: twilner@shearman.com Counsel for Petitioner-Appellant Anthony G. Amsterdam   University Professor Emeritus   New York University School of Law   245 Sullivan Street, 5th Floor  New York, NY 10012   Telephone: 212.998.6632   E-mail: aa1@nyu.edu October 1, 2018 Of Counsel USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 2 of 43 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (A) Parties and Amicus. The parties who appeared in the district court are Khalid Ahmed Qassim, petitioner-appellant, and Donald J. Trump, President of the United States, et al (the “government”). No amici appeared in the district court. The parties in this Court are the same as those who appeared before the district court but, in addition, the Commonwealth Lawyers Association wishes to appear as amicus curiae in support of Mr. Qassim’s appeal. (B) Rulings Under Review. The first ruling at issue is the oral ruling by Senior United States District Judge Thomas F. Hogan on April 10, 2018, denying Mr. Qassim’s motion in limine seeking to preclude his habeas corpus proceeding from being adjudicated through procedures that did not comply with the Due Process Clause. That ruling can be found at pp. 6–7 in the Classified Joint Appendix.1 The second ruling at issue is the Judgment by Judge Hogan of May 8, 2018, denying Mr. Qassim’s petition for a writ of habeas corpus. That Judgment can be found at p. 437 in the Unclassified Joint Appendix.2 1 The parties to this action will file two separate appendices to this brief to protect classified material: A Classified Joint Appendix (“Class. JA”) and an Unclassified Joint Appendix (“Unclass. JA”). 2 In Mr. Qassim’s Docketing Statement and his Petition to Hear and Decide Appeal En Banc, Mr. Qassim raised other issues. However, for the reasons stated below, infra, n.12, Mr. Qassim is not pursuing those issues on appeal. i USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 3 of 43 (C) Related Cases. This case was before the Court on Mr. Qassim’s petition for initial hearing en banc, which was denied by the Court on August 14, 2018. There are no other related cases currently pending in this Court or in any other court of which counsel is aware. However, the outcome of this case may affect other Guantánamo detainees who have cases currently pending in this Court or the district court involving the same or similar issues. ii USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 4 of 43 TABLE OF CONTENTS Page: CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ..............i TABLE OF CONTENTS ......................................................................................... iii TABLE OF AUTHORITIES ..................................................................................... v STATEMENT OF JURISDICTION.......................................................................... 1 (A) District Court’s Jurisdiction .................................................................. 1 (B) This Court’s Jurisdiction ....................................................................... 1 (C) Relevant Filing Dates ............................................................................ 1 (D) Appeal From Final Order ...................................................................... 1 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW ............................. 1 STATUTE INVOLVED ............................................................................................ 2 STATEMENT OF THE CASE .................................................................................. 3 Introduction...................................................................................................... 3 A. Petitioner ..................................................................................... 6 B. Procedural History ...................................................................... 7 SUMMARY OF ARGUMENT ............................................................................... 15 ARGUMENT ........................................................................................................... 17 Standard of Review........................................................................................ 17 1. Boumediene Expressly Rejected Kiyemba’s Premise for Denying Due Process .......................................................................... 17 iii USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 5 of 43 2. Kiyemba’s Declaration Is Directly Contrary to the Holdings in the Insular Cases that Noncitizens in Territories Controlled by the United States Are Entitled to the Fundamental Protections of Due Process of Law ........................................................................ 22 3. A United States Court that Receives a Petition for Writ of Habeas Corpus from an Alleged Enemy Combatant Must Itself Ensure that the Minimum Requirements of Due Process Are Achieved .............................................................................................. 24 CONCLUSION ........................................................................................................ 31 CERTIFICATE OF COMPLIANCE CERTIFICATE OF FILING AND SERVICE iv USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 6 of 43 TABLE OF AUTHORITIES Page(s): Cases: Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) ........................................................................... 22 Al Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003)....................................................................... 7 Al Rawi v. The Sec. Serv. [2011] 1 AC 531 (S.C.) ................................................................................. 31 Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010)...........................................................4, 10, 15 Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) .........................................................3, 4, 10, 15 Ali v. Trump, 317 F. Supp. 3d 480 (D.D.C. 2018)...........................................................3, 10 Al-Madhwani v. Obama, 642 F.3d 1071 (D.C. Cir. 2011)............................................................................ 3 Anam v. Bush, No. 1:04-cv-01194-UNA (D.D.C. June 8, 2018) .......................................... 12 Balzac v. Porto Rico, 258 U.S. 298 (1922)...........................................................................16, 23, 24 Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev'd, 553 U.S. 723 (2008) ...................................... 3, 4, 8, 12, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 27, 30, 31 v USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 7 of 43 Boumediene v. Bush, 583 F. Supp. 2d 133 (D.D.C. 2008)................................................................. 7 Charkaoui v. Minister of Citizenship and Immigration, [2007] 1 S.C.R. 350 (Can.) ............................................................................ 27 Dorr v. United States, 195 U.S. 138 (1904)....................................................................................... 23 Downes v. Bidwell, 182 U.S. 244 (1901)....................................................................................... 23 Duncan v. Louisiana, 391 U.S. 145 (1968)....................................................................................... 27 Frank v. Magnum, 237 U.S. 309 (1915)....................................................................................... 19 Gagnon v. Scarpelli, 411 U.S. 778 (1973)....................................................................................... 20 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).....................................................................16, 26, 29, 30 In re Gault, 387 U.S. 1 (1987)........................................................................................... 20 Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009), vacated and remanded, 559 U.S. 131 (2010), reinstated as modified, 605 F.3d 1046 (D.C. Cir. 2010) .........3, 4, 5, 9, 10, 15, 16, 17, 22, 24, 26, 29 Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011) ...........................................................10, 15, 16 Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2011)....................................................................... 4 McNeal v. Culver, 365 U.S. 109 (1961)....................................................................................... 19 vi USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 8 of 43 Moore v. Dempsey, 261 U.S. 86 (1923)......................................................................................... 19 Morgan v. United States, 304 U.S. 1, 58 S. Ct. 773 (1938) .......................................................20, 27, 28 Morrissey v. Brewer, 408 U.S. 471 (1972)....................................................................................... 20 Murphy v. Ramsey, 114 U.S. 15 (1885)......................................................................................... 19 Rasul v. Bush, 542 U.S. 466 (2004).............................................................................7, 22, 30 Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009).............................................................................. 3 Scott v. United States, 890 F.3d 1239 (11th Cir. 2018) ....................................................................... 5 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)....................................................................................... 21 Specht v. Patterson, 386 U.S. 605 (1967)....................................................................................... 20 United States v. Straker, 800 F.3d 570 (D.C. Cir. 2015) ....................................................................... 17 Yick Wo v. Hopkins, 118 U.S. 356 (1886).................................................................................22, 23 Statutes: 28 U.S.C. § 1291 ........................................................................................................ 1 28 U.S.C. § 2241 ................................................................................................1, 2, 7 vii USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 9 of 43 Consitutional Provisions: U.S. Const. amend IV .............................................................................................. 21 U.S. Const. amend V....................................................................................12, 21, 22 U.S. Const. amend VI .............................................................................................. 21 Other Authorities: CRIMINAL JUSTICE SECTION STANDARDS, COMMENTARY TO STANDARD § 11.1.1 (AM. BAR ASS’N 4th ed. 2015) ........................................................ 28 ERIC M. FREEDMAN, MAKING HABEAS WORK, A LEGAL HISTORY 80 (NYU Press 2018) .................................................................................... 28 Judge Henry J. Friendly, Some Kind of Hearing, 123 U. PA. L. REV. 1267 (1975) .................................................................... 28 viii USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 10 of 43 STATEMENT OF JURISDICTION (A) District Court’s Jurisdiction. Mr. Qassim has been imprisoned by the United States at the U.S. Naval Station, Guantánamo Bay, without charge or trial, for more than 16 years. He filed a petition for a writ of habeas corpus on July 15, 2004. The district court had subject matter jurisdiction under 28 U.S.C. § 2241. (B) This Court’s Jurisdiction. This Court has jurisdiction over Mr. Qassim’s appeal under 28 U.S.C. § 1291. (C) Relevant Filing Dates. The district court’s Judgment, incorporating all prior rulings, was entered on May 8, 2018. Mr. Qassim filed a notice of appeal on May 16, 2018. (D) Appeal From Final Order. The district court’s Judgment recites that it is “a final, appealable order,” and it is a final, appealable order. STATEMENT OF THE ISSUES PRESENTED FOR REVIEW Whether habeas corpus proceedings brought in federal court by Mr. Qassim must be adjudicated through procedures that comply with due process of law. 1 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 11 of 43 STATUTE INVOLVED The federal habeas corpus statute, 28 U.S.C. § 2241, provides in relevant part: (a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions. *** (c) The writ of habeas corpus shall not extend to a prisoner unless – (1) He is in custody under or by color of the authority of the United States . . . . 2 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 12 of 43 STATEMENT OF THE CASE Introduction In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that Guantánamo detainees have a constitutional right to challenge the basis for their detention by habeas corpus proceedings in a United States District Court. In Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009),3 a panel of this Court leached all substance out of Boumediene by declaring that “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.” The Kiyemba ruling has been accepted by successive panel decisions,4 and “applying Kiyemba II, district courts in this Circuit have uniformly refused to recognize due process claims by Guantanamo Bay detainees.” Ali v. Trump, 317 F. Supp. 3d 480, 488 (D.D.C. 2018). As a consequence, later panel decisions have developed rules for the adjudication of Guantánamo habeas cases 3 vacated and remanded, 559 U.S. 131 (2010), reinstated as modified, 605 F.3d 1046 (D.C. Cir. 2010). “In subsequent cases, our Circuit has confirmed that Kiyemba II reinstated Kiyemba I’s holding on the extension of the due process clause to Guantanamo.” Ali v. Trump, 317 F. Supp. 3d 480, 488 (D.D.C. 2018). 4 See Kiyemba v. Obama, 605 F.3d 1046, 1048 (D.C. Cir. 2010); Al-Bihani v. Obama, 590 F.3d 866, 877 (D.C. Cir. 2010) (detainees are “deserving of leaner procedures” than “‘the normal due process protections available to all within this country’”); AlMadhwani v. Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011) (“‘[t]his Court has . . . stated that the detainees [at Guantánamo Bay] possess no constitutional due process rights.’”); Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009) (per curiam). 3 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 13 of 43 that would not be permissible in any proceeding governed by due process,5 and habeas corpus relief for detainees has been effectively shut down altogether.6 Petitioner Khalid Qassim has been incarcerated at Guantánamo for more than sixteen years without a due-process hearing. Recognizing that he can never secure relief through proceedings in which he is denied notice of the Government’s evidence purportedly justifying his detention, he moved in his district court habeas case for a ruling in limine that due process does govern such proceedings. Unclass. JA 422–28. He conceded that this submission required the overruling of settled Circuit law and explained that, if the court could not grant the motion, the aim of the motion was to lay the foundation for an appeal in which he would challenge that law. District Judge Hogan agreed that he was powerless to disregard Kiyemba and denied the motion. Unclass. JA 7–8. He then denied Mr. Qassim’s habeas petition after considering documentary submissions, including a stipulation by the parties in which Mr. Qassim conceded 5 See Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010); Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010); Latif v. Obama, 677 F.3d 1175 (D.C. Cir. 2011). 6 After Boumediene but before entry of the panel decisions, the D.C. district courts heard and decided 53 habeas petitions by detainees. They granted the writ in 38 of those cases—more than 70 percent of the time. By contrast, in the seven years since these decisions, not a single habeas petition contested by the government has been granted, and every previous district court grant of habeas appealed by the government has been reversed. (During that time, only one habeas petition has been granted, with the government’s consent, to allow an extremely ill and elderly detainee to be released. The government mooted three appeals by transferring the detainees.) 4 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 14 of 43 that he could not successfully challenge the Government’s basis for his detention under prevailing Circuit precedent because that precedent relieved the Government of any obligation to disclose its supporting evidence. On this appeal, Mr. Qassim moved for an initial hearing en banc, again conceding that his case could not be won under the rules laid down by Kiyemba and its progeny. Pet’r-Appellant Pet. to Hear and Decide Appeal En Banc, Case No. 18-5148, Doc. No. 1731972. The motion was denied, and a briefing schedule has been set for hearing before a panel. Orders, Case No. 18-5148, Doc. Nos. 1745386, 1746391. In this posture, it is important to clarify up front what Mr. Qassim is asking the panel to do. He recognizes that it cannot overrule or disregard prior panel holdings. What it can do – and what he respectfully implores it to do – is to take its own fresh, independent look at the question whether habeas corpus proceedings brought by Guantánamo detainees must be adjudicated through procedures that conform to due process. If the panel agrees that they must, Mr. Qassim asks that it deliver an opinion explaining its reasoning for this conclusion and requesting proceedings en banc to reconsider the basic Kiyemba holding. See Scott v. United States, 890 F.3d 1239 (11th Cir. 2018). 5 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 15 of 43 This brief pursues that objective by arguing only the single issue central to Mr. Qassim’s right to adequate habeas review: that his federal court habeas petition must be adjudicated through procedures that comply with due process of law. The district court proceedings in which he was denied relief were explicitly and mandatorily governed by the rule that due process was inapplicable to Boumediene habeas cases. That rule – preventing Mr. Qassim from seeing, confronting and rebutting the purported evidence against him – works an immediate and irreversible harm upon him that no additional factfinding could cure. If that rule is wrong, he is entitled to reversal for a hearing that accords him a due-process right to know and contest the evidence on which his 16-year detention purportedly is based. A. Petitioner Mr. Qassim is 41 years old. He is a citizen of Yemen. Turned over to U.S. authorities by Afghan officials in December 2001, he was transported to the Guantánamo Bay prison camp on May 1, 2002, and has been imprisoned there ever since. He has never been charged with any crime, such as material support for or conspiracy to assist terrorism. Rather, he is detained on the assertion that, more than 16 years ago, he was “an enemy combatant,” that is, “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that [were] engaged in hostilities against the United States or its coalition partners.” 6 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 16 of 43 Boumediene v. Bush, 583 F. Supp. 2d 133, 135 (D.D.C. 2008). He denies that assertion. Because he has been deprived of the fundamental due-process right to view the evidence on which the assertion is based, however, he has been unable to challenge it effectively in court. B. Procedural History On June 28, 2004, the Supreme Court held in Rasul v. Bush, 542 U.S. 466, 480–81 (2004), that the Guantánamo Bay Naval Base is within “the territorial jurisdiction” of the United States and that detainees held there, “no less than American citizens,” have the right to challenge the legality of their detentions in the U.S. courts through the writ of habeas corpus.7 On July 15, 2004, Mr. Qassim filed a petition for habeas relief in the United States District Court of the District of Columbia under 28 U.S.C. § 2241. His proceeding was put on hold when Congress passed legislation amending the federal habeas statute to revoke the right of detainees at Guantánamo to pursue 7 The Supreme Court in Rasul reversed the decision by this Court holding that, because “a ‘foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise,’” “no court in this country has jurisdiction to grant habeas relief, under 28 U.S.C. § 2241, to the Guantanamo detainees, even if they have not been adjudicated enemies of the United States. We cannot see why, or how, the writ may be made available to aliens abroad when basic constitutional protections are not.” Al Odah v. United States, 321 F.3d 1134, 1141 (D.C. Cir. 2003), rev’d sub nom. Rasul v. Bush, 542 U.S. 466 (2004). 7 USCA Case #18-5148 Document #1753384 habeas relief in the U.S. courts.8 Filed: 10/01/2018 Page 17 of 43 In June, 2008, the Supreme Court held in Boumediene v. Bush that Guantánamo detainees have the constitutional right to pursue habeas relief in the U.S. courts and that the congressional legislation revoking that right operated as an unconstitutional suspension of the writ.9 553 U.S. at 771. Following that decision, on September 9, 2008, the government moved for leave to file an “amended factual return.” Unclass. JA 368–79. The government described this Amended Factual Return as “the most appropriate case for . . . [Mr. Qassim’s] detention.” Unclass. JA 369. It designated the Amended Factual Return as “classified” and submitted it with numerous supporting exhibits to the court under seal. See Unclass. JA 374. Two days later, on September 11, 2008, the district court entered a Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantánamo Bay, Cuba. Unclass. JA 380–403. Under the Protective Order and Procedures, Mr. Qassim is not permitted to see the classified Amended Factual Return or any of the supporting exhibits containing the evidence 8 See Boumediene, 553 U.S. at 735–36. 9 In Boumediene, the Supreme Court reversed the decision by this Court that the detainees at Guantánamo are not entitled to the protection of the Suspension Clause because “the Constitution does not confer rights on aliens without property or presence within the United States.” Boumediene v. Bush, 476 F.3d 981, 991 (D.C. Cir. 2007), rev'd, 553 U.S. 723 (2008). 8 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 18 of 43 upon which the government relies to detain him. Mr. Qassim’s counsel may see the Amended Factual Return and unredacted portions of the supporting exhibits. Several of the exhibits, however, are extensively redacted. Counsel is prohibited from disclosing any of the information in the Amended Factual Return and exhibits to Mr. Qassim (or anyone else) for the purpose of investigating and developing his defense to the allegations purporting to justify his detention. Significantly, several of the key supporting exhibits are reports of statements purportedly made by Mr. Qassim himself. He is not allowed to see those exhibits to test whether they correctly reflect what he said, whether their meaning is clear in the light of their context, under what circumstances the statements may have been made, or whether there are independent witnesses or evidence to clarify or explain them. Because the standards for Guantánamo habeas proceedings were being litigated before this Court and the district courts, the parties jointly stipulated to a stay and, on December 12, 2008, the district court issued an order indefinitely staying Mr. Qassim’s habeas case. Unclass. JA 418–20. The stay remained in effect until November 16, 2017, when the court granted Mr. Qassim’s motion to vacate the stay. Unclass. JA 421. In the interim, a panel of this Court issued its opinion in Kiyemba, declaring that the Guantánamo detainees’ habeas proceedings need not be adjudicated through procedures that comport with due process of law because “the due process 9 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 19 of 43 clause does not apply to aliens without property or presence within the sovereign territory of the United States.” 555 F.3d at 1026. Following that decision, panels of this Court issued decisions in Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010), Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010), and Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011), which established certain presumptions and preferences in favor of the government in Guantánamo habeas cases that Mr. Qassim cannot rebut without access to the information on which those presumptions and preferences are based. Mr. Qassim and his counsel concluded therefore that it would be impossible to prevail on his habeas petition without the due-process right to see and rebut the evidence upon which the allegations against him were based. Accordingly, Mr. Qassim filed a motion in limine to preclude the adjudication of his habeas petition through procedures that did not comport with due process of law. Unclass. JA 422–28. At the same time, on the assumption that the court below would deny his claim for due process, as the district courts have “uniformly” done in all other post-Kiyemba Guantánamo cases, see Ali v. Trump, 317 F. Supp. 3d 480, 488 (D.D.C. 2018), Mr. Qassim entered into a stipulation with the government disputing the allegations against him but conceding that, under the existing legal standards which denied him due process and the ability to see and confront the evidence against him, he could not prevail. 10 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 20 of 43 The stipulation, which the government filed below on February 21, 2018, see Unclass. JA 435–36, sets forth 12 allegations against Mr. Qassim drawn from the government’s classified Amended Factual Return, see Class. JA 25–40. It lists 18 exhibits also drawn from that Return to support those allegations. Two of the exhibits are almost completely redacted and cannot be seen even by Mr. Qassim’s counsel, let alone Petitioner. The stipulation and the supporting exhibits are classified. See Class. JA 25. The government permitted Mr. Qassim’s counsel to show him the classified stipulation during a visit at Guantánamo on January 4, 2018, but did not permit him to retain it. The government did not permit counsel to show or discuss with Mr. Qassim any of the supporting exhibits containing the evidence upon which the allegations were based. The stipulation and the allegations in it remain classified.10 At a hearing on Mr. Qassim’s habeas petition and motion in limine held before Judge Hogan on April 10, 2018, Mr. Qassim’s counsel made clear that, notwithstanding the stipulation, Mr. Qassim’s strong preference was that the court grant the motion in limine to allow the hearing to go forward in accordance with procedures that comport with due process. Counsel said: [The purpose of] the motions in limine [was] . . . to assert Mr. Qassim’s rights for due process of law. . . . [O]ur 10 Furthermore, Mr. Qassim’s counsel were required to treat everything Mr. Qassim told them during that visit as classified. 11 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 21 of 43 preference, of course, would be if your Honor would rule and grant our motions [in] limine because we do think that Mr. Qassim is entitled to the protections of the due process clause. We don’t want to go forward saying that he’s entitled to some sliver and we’ll try to g[et] by with his hands [tied] behind his back. We think he’s entitled to that under the Fifth Amendment and the decision in Boumediene. Class. JA 4.11 The court below denied Mr. Qassim’s motion in limine to have his habeas proceeding adjudicated by procedures that comported with due process of law: The Circuit has uniformly, until now, reversed every district judge who has taken steps in these sort of cases, I will note. . . . So, on the motion in limine, you’re seeking a ruling that I would have to overrule binding precedent. . . . So, I’m going to deny the motion in limine . . . . I think the Circuit precedent has barred me from changing the rules and procedures that we’ve adopted for the adjudication of the Guantánamo cases, so I’m going to deny that. Class. JA 6–7. 11 The portions of the Transcript of Merits Hearing Proceedings of April 10, 2018, before Judge Hogan in the United States District Court that are quoted and cited in this brief reflect unclassified material. An unclassified version of the transcript is available on the public docket. See Transcript, Anam v. Bush, No. 1:04-cv-01194UNA (D.D.C. June 8, 2018), ECF No. 1143-1. A complete, unredacted transcript of the Merits Hearing, to which this brief’s citations refer, has been included in the Classified Appendix. 12 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 22 of 43 The court acknowledged that the absence of due-process protections not only prevented Mr. Qassim from seeing any of the evidence against him; it also prevented Mr. Qassim’s counsel from seeing certain key evidence: Counsel: [T]he evidence the government has presented . . . we cannot review with the client, and he has no right to confront it or review it. Several of the exhibits . . . we can’t even review . . . . In these circumstances, it would be virtually impossible for us to [disprove the presumptions]. Class. JA 10. Court: [Exhibits] 17 and 18, just so the record reflects it, are essentially all blacked out. . . . So the record reflects what you’re saying. . . . I understand the frustration of the Petitioner in the situation he’s faced with. Class. JA 10–11. Cf. Class. JA 126-143, 145-158. The district court further acknowledged that: [P]laintff cannot review all the evidence against him, and has difficulties meeting the evidence with the presumptions and standards we have adopted. * * * The Petitioner’s position is . . . that without the due process of law and the ability to challenge this evidence appropriately, and having to accord each of the presumption rulings in favor of the government, under the D.C. current Circuit case law, to the government’s 13 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 23 of 43 evidence, the Petitioner cannot and others would not be in a position to challenge sufficiently to overcome even the minimum preponderance of the evidence standard by which the government must prove its case. However, . . . that is a matter for the Circuit and not the District Court; I am bound by the Circuit precedent. Class. JA 16, 18. Turning to the merits of Mr. Qassim’s petition, the court found that “there are exhibits that support” the allegations against Mr. Qassim in the classified stipulation, and that, as a result, the government met its burden of justifying his detention. Class. JA 20–23. Consequently, the court denied Mr. Qassim’s petition. Class. JA 23. On May 8, 2018, the district court entered final judgment denying Mr. Qassim’s habeas corpus petition. Unclass. JA 437. Mr. Qassim filed a notice of appeal on May 16, 2018, and, on May 21, filed a petition that the appeal be heard and decided en banc. The Court denied that petition on August 14, 2018, and subsequently set a briefing schedule for hearing before a panel. Mr. Qassim submits this brief in accordance with that schedule. He argues only a single issue of law central to his right to receive adequate habeas review – that his habeas 14 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 24 of 43 corpus proceeding be adjudicated through procedures that conform to due process.12 SUMMARY OF ARGUMENT Kiyemba insists that noncitizens in territories outside the area of formal de jure U.S. sovereignty lack constitutional protections. But Boumediene expressly rejected the argument that “at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends.” Boumediene, 553 U.S. at 755. Limiting the Constitution’s reach to areas of de jure sovereignty, the Court found, would be “inconsistent with our precedents” and would also violate fundamental separation-of-powers principles by enabling the executive to manipulate the location 12 In a statement accompanying the Court’s order denying en banc review, Judge Tatel suggested that further factfinding in the court below might be warranted before this Court could consider Mr. Qassim’s challenges to the presumptions and preferences established under Al-Bihani, Al-Adahi, and Latif. Because Mr. Qassim’s core claim is that the court improperly denied him due process of law, he has decided not to pursue those other issues on appeal. Whether his habeas proceeding must be adjudicated through procedures that conform with due process is a purely legal issue that would not benefit from further factfinding. Moreover, resolution of that issue is a necessary first step before further factfinding could be beneficial on any of the other issues. For example, Mr. Qassim recognizes that the Latif presumption presumes “the accuracy, albeit not the truth” of government documents. But he cannot effectively challenge either the accuracy or the truth of those documents if he cannot see them. Without due process, any further factfinding is artificially restricted; Mr. Qassim is effectively excluded from it. The process can only benefit from further factfinding if the factfinding is conducted through procedures that conform to due process of law. Indeed, one of the chief lessons of the cases, as discussed below, is that due process is not only for the benefit of the accused; it is also essential to enable the court to uncover the facts to get to the truth. 15 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 25 of 43 of its prisons to avoid “legal constraint.” Id. at 755, 765. The Court held that the Constitution applies at Guantánamo, because the United States exercises “complete jurisdiction and control” and “de facto sovereignty” there, and that the detainees have the constitutional right to pursue habeas relief in the federal courts. Id. at 753–755, 765, 771. Kiyemba’s declaration that those habeas proceedings may be conducted without due-process protections – because the detainees are aliens outside U.S. sovereign territory – not only contravenes Boumediene’s basic holding, it also eviscerates the habeas right. Kiyemba’s denial of due process is also inconsistent with the principle established by the Supreme Court more than a century ago in the Insular Cases, that noncitizens resident in overseas territories controlled by the United States are always entitled at the very least to the “guaranties of certain fundamental personal rights declared in the Constitution, as, for instance, that no person could be deprived of life, liberty, or property without due process of law.” Balzac v. Porto Rico, 258 U.S. 298, 312–13 (1922). And Kiyemba’s declaration further disregards the recognition in Justice O’Connor’s lead opinion in Hamdi v. Rumsfeld, that a United States “court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved” with a “fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.” 542 U.S. 507, 533, 538 (2004). These are, and have been for 16 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 26 of 43 centuries, the basic requirements for habeas corpus adjudication. Kiyemba’s abrogation of those requirements has prevented any Guantánamo detainee from obtaining habeas relief for almost a decade. The Kiyemba decision should be repudiated and overturned. ARGUMENT Standard of Review The issues resolved by the district court and presented for review in this Court are purely legal and are reviewable de novo by this Court. E.g., United States v. Straker, 800 F.3d 570, 595 (D.C. Cir. 2015). 1. Boumediene Expressly Rejected Kiyemba’s Premise for Denying Due Process. The district court denied Mr. Qassim’s motion in limine on the basis of the panel’s declaration in Kiyemba that “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.” 555 F.3d at 1026; see Class. JA 6–8, 18. That declaration cannot be reconciled with the Supreme Court’s decision in Boumediene. Kiyemba insists that noncitizens detained in a place such as Guantánamo, which is outside the area of formal de jure U.S. sovereignty, lack constitutional rights. But the Supreme Court in Boumediene explicitly rejected the 17 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 27 of 43 government’s argument – and this Court’s prior ruling13 – that “at least as applied to noncitizens, the Constitution necessarily stops where de jure sovereignty ends.” 553 U.S. at 755. The Supreme Court acknowledged that the United States lacks de jure sovereignty over Guantánamo Bay, but pointed out “the obvious and uncontested fact that the United States, by virtue of its complete jurisdiction and control over the base, maintains de facto sovereignty over this territory.” Id. It found no basis in prior cases to limit the Constitution’s reach to areas of de jure sovereignty and, indeed, found that doing so would be “inconsistent with our precedents.” Id. at 755–64. The Supreme Court also explained that limiting the Constitution’s reach to areas of de jure sovereignty would grant the political branches the authority to say where constitutional protections apply, and where they do not, essentially granting them the authority to manipulate the law to insulate their conduct from constitutional review. That would violate the very structure of our constitutional system: [T]he Government’s view is that the Constitution had no effect [in Guantánamo], 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. 13 See n.9, supra. 18 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 28 of 43 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. Even when the United States acts outside its borders, its powers are not “absolute and unlimited” but are subject “to such restrictions as are expressed in the Constitution.” 553 U.S. at 765 (quoting Murphy v. Ramsey, 114 U.S. 15, 44 (1885)). This analysis applies as equally to the Due Process Clause as it does to the Suspension Clause. In effect, the two clauses are tied together. As the Court stated in Boumediene, the Suspension Clause affirms “the duty and authority of the Judiciary to call the jailer to account.” 553 U.S. at 745. In doing so, the court has an independent duty to uncover the facts to get to the truth.14 To perform that duty, it is essential that the court be able to hear the detainee’s side of the story and that the proceedings therefore be conducted in accordance with “those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature” and that enable the detainees to know and respond to the factual 14 See, e.g., McNeal v. Culver, 365 U.S. 109, 117 (1961) (even in a state habeas proceeding, a federal claim “made it incumbent on the Florida court to grant petitioner a hearing and to determine what the true facts are”); Moore v. Dempsey, 261 U.S. 86, 92 (1923) (it is not “sufficient to allow a Judge of the United States to escape the duty of examining the facts for himself . . . . [It is] unavoidable that the District Judge should find whether the facts alleged are true . . . .”); Frank v. Magnum, 237 U.S. 309, 346 (1915) (Holmes, J., dissenting) (to get to the truth, the judicial inquiry in habeas “cuts through all forms and goes to the very tissue of the structure”). 19 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 29 of 43 assertions against them. Morgan v. United States, 304 U.S. 1, 19, 58 S. Ct. 773, 777 (1938).15 Adjudication of habeas proceedings in accordance with due-process procedures is important therefore to protect not only the accused but also the integrity and accuracy of the habeas process itself. See In re Gault, 387 U.S. 1, 19–21(1987) (“Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact. . . . [T]he procedural rules which have been fashioned from the generality of due process are our best instruments for the distillation and evaluation of essential facts from the conflicting welter of data that life and our adversary methods present. It is these instruments of due process which enhance the possibility that truth will emerge from the confrontation of 15 See, e.g., Morgan, 304 U.S. at 18, 58 S. Ct. at 776 (“The right to a hearing embraces not only the right to present evidence, but also a reasonable opportunity to know the claims of the opposing party and to meet them.”); Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer, 408 U.S. 471, 488–89 (1972) (“the minimum requirements of due process . . . include (a) written notice of the claimed violations . . . (b) disclosure . . . of evidence against him; (c) [the] opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses . . . .”). See also Specht v. Patterson, 386 U.S. 605, 609–10 (1967). Although certain dueprocess protections might be modified to the limited extent necessary to accommodate unique characteristics of wartime apprehensions abroad, the most basic safeguards, including “written notice” of the grounds upon which the petitioner is alleged to be an enemy combatant and “disclosure of the evidence against” the detainee, require no modification in the context of these sixteen-yearlong detentions at Guantánamo. 20 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 30 of 43 opposing versions and conflicting data.”); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 224–25 (1953) (Jackson, J., dissenting) (“Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.”). Denying detainees those procedural protections and the ability to confront the evidence against them enables the executive to detain individuals on the basis of secret, untested information. It is as effective a way for the executive to insulate its actions from judicial review as denying habeas itself. Both are contrary to fundamental separation-of-powers principles. Paraphrasing the Court in Boumediene, the executive cannot switch off either the Due Process or the Suspension Clause by choosing to hold its prisoners in a territory over which it has disclaimed formal sovereignty but continues to maintain total control. See Boumediene, 553 U.S. at 765. Indeed, this Court has recognized that there is no basis for distinguishing those two clauses in judging their applicability to the Guantánamo detainees. In its decision, which was reversed by the Supreme Court in Boumediene, this Court stated: “There is the notion that the Suspension Clause is different from the Fourth, Fifth and Sixth Amendments because it does not mention individuals and 21 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 31 of 43 those amendments do . . . . That cannot be right.” Boumediene v. Bush, 476 F.3d at 993. The Supreme Court determined that the Suspension Clause of the Constitution applies to Guantánamo detainees; so too, by this Court’s own reasoning, must the Due Process Clause of the Fifth Amendment.16 2. Kiyemba’s Declaration Is Directly Contrary to the Holdings in the Insular Cases that Noncitizens in Territories Controlled by the United States Are Entitled to the Fundamental Protections of Due Process of Law. As the Supreme Court has made clear, Guantánamo is within “the territorial jurisdiction” of the United States. See Rasul, 542 U.S. at 480–83; Boumediene, 553 U.S. at 769 (“it is within the constant jurisdiction of the United States.”). It has been settled for more than 130 years that the fundamental protections of due process and equal protection of law “are universal in their application, to all persons within the territorial jurisdiction [of the United States], without regard to any differences of race, of color, or of nationality.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). 16 We note that in Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) the government conceded and the en banc Court assumed that the Constitution’s Ex Post Facto Clause applies at Guantánamo. In his concurring opinion, Judge Kavanaugh stated that the government “concedes (correctly)” that the Clause applies, id. at 65, and that five of the seven members of the Court “agree in light of Boumediene v. Bush that the Ex Post Facto Clause applies at Guantánamo,” id. at 63. In light of Boumediene v. Bush, the Due Process Clause applies as well. Indeed, Judge Kavanaugh assumed that the Guantánamo detainees were covered by the Due Process Clause, although the equal protection claim made under that Clause failed on the merits in that case. See id. at 75. 22 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 32 of 43 Yick Wo was a case in a U.S. court involving a noncitizen located in the United States. But the Supreme Court long ago recognized in a series of opinions referred to as the Insular Cases that noncitizens outside the United States in proceedings in local courts in territories controlled by the United States are entitled to the fundamental protections of our Constitution. The Boumediene Court reviewed the history of these cases. 553 U.S. at 756–64. As it pointed out, the cases dealt with the application of the Constitution in the territories ceded to the United States at the end of the Spanish-American war. Each had its own customs and legal traditions. Some were destined for incorporation into the United States, and others were not. The “real issue in the Insular Cases was not whether the Constitution extended” to these territories – it clearly did – but rather “which ones of its provisions were applicable” in the particular circumstances. Balzac, 258 U.S. at 312. As the Boumediene Court pointed out, the cases adopted “the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely destined for statehood, but only in part in unincorporated Territories [such as the Philippines, which was destined for independence].” Boumediene, 553 U.S. at 757. See also Dorr v. United States, 195 U.S. 138, 143 (1904); Downes v. Bidwell, 182 U.S. 244, 293 (1901). Significantly, however, “even in unincorporated Territories the Government of the 23 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 33 of 43 United States was bound to provide to noncitizen inhabitants ‘guaranties of certain fundamental personal rights declared in the Constitution.’” Boumediene, 553 U.S. at 758 (quoting Balzac, 258 U.S. at 312). As the Balzac Court stated: “The guaranties of certain fundamental personal rights declared in the Constitution, as, for instance, that no person could be deprived of life, liberty, or property without due process of law, had from the beginning full application in the Philippines and Porto Rico . . . .” Balzac, 258 U.S. at 312–13 (emphasis added). As Boumediene pointed out, there is even more reason to ensure that those guarantees apply at Guantánamo because, unlike unincorporated territories, which “the United States did not intend to govern indefinitely,” Guantánamo “is no transient possession. In every practical sense, Guantánamo is not abroad; it is within the constant jurisdiction of the United States.” Boumediene, 553 U.S. at 768–69. Kiyemba’s denial of due process to noncitizens at Guantánamo cannot be squared with the longstanding principles stated in those decisions. 3. A United States Court that Receives a Petition for Writ of Habeas Corpus from an Alleged Enemy Combatant Must Itself Ensure that the Minimum Requirements of Due Process Are Achieved. The question in the Insular Cases was the extent to which the Constitution applied in proceedings pending against the plaintiffs in the local courts of the territories outside the United States where they resided. As discussed, the Supreme 24 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 34 of 43 Court held that, even in those local court proceedings, the plaintiffs are entitled to the full constitutional protections of due process of law. If noncitizens are entitled to those protections in proceedings in local courts in territories outside the United States, they should certainly be entitled to those protections in a habeas corpus proceeding pending before a United States District Court sitting in Washington, D.C. What is at issue in this case is not only the rights of the Guantánamo detainees – which should be far more compelling than those of the plaintiffs in the Insular Cases – but the process that must be followed by United States courts in conducting federal habeas proceedings in the United States. The Boumediene Court appeared clearly to contemplate that those federal court proceedings would be conducted in accordance with procedures complying with due process of law. It stated that the habeas proceeding must be “constitutionally adequate” and, in conducting their inquiry, the courts must provide the detainees with a “meaningful opportunity” to contest the purported causes of their detentions, including the right to traverse the government’s returns and to effectively rebut the factual bases for the government’s assertions against them, which is “constitutionally required.” Boumediene, 553 U.S. at 779, 783, 789. 25 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 35 of 43 Prior to the panel decision in Kiyemba, there has never been a decision that a federal court in conducting a habeas proceeding is not bound by the requirements of due process of law. To the contrary, as Justice O’Connor stated in Hamdi: “a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved,” with a “fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.” 542 U.S. at 533, 538 (plurality opinion). “Any process in which the Executive’s factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short.” Id. at 537. Justice O’Connor also reiterated that the place of detention – whether in Guantánamo or the United States – should not make a “determinative constitutional difference.” Id. at 524. The petitioner in Hamdi was, of course, a United States citizen. But Justice O’Connor’s statements speak not to the citizenship of the petitioner but to the integrity and fairness of the process that must be followed in a habeas proceeding in a federal court. Those proceedings must be conducted in accordance with due process of law. Indeed, habeas corpus and due process are linked; they were developed as related protections of the guarantee against arbitrary detention set out in Magna 26 USCA Case #18-5148 Carta.17 Document #1753384 They are tied together. Filed: 10/01/2018 Page 36 of 43 Habeas corpus is a procedure that requires adjudication through procedures that comport with due process; habeas simply is not habeas within the Anglo-American tradition and within the meaning of the Suspension Clause if it is conducted without procedures meeting “those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature.” Morgan, 304 U.S. at 19, 58 S. Ct. at 777.18 17 As Justice Kennedy explained in Boumediene: “Magna Carta decreed that no man would be imprisoned contrary to the law of the land . . . .[and] gradually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled.” 553 U.S. at 740 (citations omitted). And, Justice Black explained the related development of “due process” in Duncan v. Louisiana: “The origin of the Due Process Clause is Chapter 39 of Magna Carta which declares that ‘No free man shall be taken, outlawed, banished or in any way destroyed, except . . . by the law of the land.’” 391 U.S. 145, 169 (1968) (Black, J., concurring). 18 As the Chief Justice of Canada stated in Charkaoui v. Minister of Citizenship and Immigration, [2007] 1 S.C.R. 350 (Can.) ¶¶ 28–29: [B]efore the state can detain people for significant periods of time, it must accord them a fair judicial process . . . . It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process . . . . This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. (internal citations and quotations omitted). 27 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 37 of 43 Absent due process, the right to a hearing becomes an empty promise. See, e.g., Morgan, 304 U.S. at 18, 58 S. Ct. at 776 (“The right to a hearing embraces . . . a reasonable opportunity to know the claims of the opposing party and to meet them. . . . [O]therwise the right may be but a barren one.”); CRIMINAL JUSTICE SECTION STANDARDS, COMMENTARY TO STANDARD § 11.1.1 (AM. BAR ASS’N 4th ed. 2015) (“Experienced trial counsel know that effectiveness at trial depends upon meticulous evaluation and preparation of the evidence to be presented. Where counsel’s evaluation and preparation are hampered by lack of information, the trial becomes a pursuit of truth and justice more by chance than by design.”); Judge Henry J. Friendly, Some Kind of Hearing, 123 U. PA. L. REV. 1267, 1280–81 (1975) (without “[n]otice . . . of the proposed action and the grounds for it . . . the individual likely would be unable . . . to benefit from any hearing that was provided.”). As mentioned, due process is not simply for the benefit of the accused; it is also essential to protect the integrity and accuracy of the habeas process itself. In that regard, the focus in habeas historically was not on the rights of the detainee, but on the independent obligation of the court (on behalf of the King) to conduct a searching inquiry and gather all the facts necessary to determine the legality of the detention. See ERIC M. FREEDMAN, MAKING HABEAS WORK, A LEGAL HISTORY 80 (NYU Press 2018). To fulfill that obligation, the court must be able to hear from 28 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 38 of 43 the detainee who must be informed of the factual accusations against him so that he can respond effectively. Ensuring that the detainee has an informed opportunity to respond is the only way of ensuring that the court will have all the relevant information. Habeas procedures that deny due process and permit the executive to continue detaining individuals based on secret information they cannot see or rebut cripple the writ of habeas corpus and prevent the court from fulfilling its core obligation to uncover the facts and find the truth. Justice O’Connor stated correctly what the law is and has been for centuries – “a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved,” with a “fair opportunity to rebut the Government’s factual assertions before a neutral decision maker.” Hamdi, 542 U.S. at 533, 538. The Kiyemba panel’s statement that the habeas inquiry, so central to liberty, may be conducted without regard to the fundamental requirements of fairness demanded by due process is repugnant to the founding principles of our nation and should be repudiated. * * * The central issue in the Guantánamo detainee cases brought after 9/11 was whether the courts have a meaningful role to play in reviewing governmentordered detentions in the “war against terrorism.” From the outset, the government argued that the courts should stay out of the process and let the executive decide 29 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 39 of 43 unilaterally who should be interned and who should be released. It invoked its constitutional responsibility to protect the nation’s security and claimed that it alone had the institutional capability to make those decisions. The Supreme Court emphatically rejected these contentions on three separate occasions: in Hamdi v. Rumsfeld, Rasul v. Bush, and Boumediene v. Bush. It held instead that the judiciary has a critical, independent role to play under our Constitution: to determine through habeas corpus proceedings whether there is a basis in fact and warrant in law for the individual detentions. Justice O’Connor pointed out in Hamdi that “as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States . . . history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.” 542 U.S. at 530. She emphasized that “the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role . . . serving as an important judicial check on the Executive’s discretion in the realm of detentions.” Id. at 536. Kiyemba has effectively abolished that crucial constitutional check. Denied the basic due-process right to confront and rebut the factual accusations against them, the Guantánamo detainees have been deprived of the “meaningful opportunity” Boumediene guaranteed them to challenge the legality of their 30 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 40 of 43 detentions in court. As a result, Guantánamo has become what the executive always wanted it to be, and what the Supreme Court emphatically said it could not be: a prison where individuals are deprived of their liberty solely at the discretion of the executive. The critical judicial function of habeas – what Boumediene termed “the duty and authority of the Judiciary to call the jailer to account” – has become a nullity. CONCLUSION The three lines of authority and reason sketched in Argument sections 1, 2, and 3 of this brief converge upon the inescapable conclusion that habeas corpus proceedings which do not afford the petitioner sufficient disclosure of the asserted grounds for his detention, so that refutation can be offered and the truth established, are the true aliens on the Guantánamo scene. They are grossly out of line with the law and practice of both habeas corpus and due process jurisprudence as it has stood for centuries19 and was reconfirmed in Boumediene. This Court should say so. 19 See Al Rawi v. The Sec. Serv. [2011] 1 AC 531 (S.C.) [¶¶ 10, 12] (appeal taken from Eng.) (“There are certain features of a common law trial which are fundamental to our system of justice. . . . [T]rials are conducted on the basis of the principle of natural justice. . . . A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance.”). 31 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 41 of 43 Respectfully submitted, Dated: October 1, 2018 /s/ Thomas B. Wilner /s/ Neil H. Koslowe /s/ Kimberly B. Ferguson Clive Stafford Smith Shelby Sullivan-Bennis REPRIEVE
 PO Box 72054
 London EC3P 3BZ United Kingdom Telephone: +44 207 553 8140 E-mail: clive@reprieve.org.uk E-mail: Shelby@reprieve.org Thomas B. Wilner Neil H. Koslowe Kimberly Ferguson SHEARMAN & STERLING, LLP 401 9th Street, N.W., Suite 800 Washington, DC 20004 Telephone: 202-508-8050 E-mail: twilner@shearman.com Counsel for Petitioner-Appellant Of Counsel: Anthony G. Amsterdam University Professor Emeritus New York University School of Law 245 Sullivan Street, 5th Floor New York, NY 10012 Telephone: 212.998.6632 E-mail: aa1@nyu.edu 32 USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 42 of 43 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: this brief contains 7,784 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally-spaced typeface using Microsoft Word in 14 point Times New Roman font. Dated: October 1, 2018 /s/ Kimberly B. Ferguson Kimberly B. Ferguson USCA Case #18-5148 Document #1753384 Filed: 10/01/2018 Page 43 of 43 CERTIFICATE OF FILING AND SERVICE I hereby certify that on this 1st day of October, 2018, I caused the foregoing to be filed electronically with the Clerk of the Court using the CM/ECF System, which will send notice of such filing to all registered CM/ECF users. Dated: October 1, 2018 /s/ Kimberly B. Ferguson Kimberly B. Ferguson