USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 1 of 50

[ORAL ARGUMENT NOT YET SCHEDULED]
No. 18-5297
_______________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_______________
ABDUL RAZAK ALI,
Petitioner-Appellant,
v.
DONALD J. TRUMP, et al.,
Respondent-Appellees.
_______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________

BRIEF FOR PETITIONER-APPELLANT
_______________
H. Candace Gorman
Law Office of H. Candace Gorman
220 S. Halsted, Suite 200
Chicago, Illinois 60661
Tel: (312) 427-2313
hcgorman@igc.org

J. Wells Dixon
Shayana Kadidal
Pardiss Kebriaei
Baher Azmy
Center for Constitutional Rights
666 Broadway 7th Floor
New York, NY 10012
Tel: (212) 614-6438
kadidal@ccrjustice.org
Counsel for Petitioner-Appellant

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 2 of 50

CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Appellant Abdul Razak Ali, by and through his undersigned counsel, and
pursuant to D.C. Circuit Rule 28(a)(1), hereby states as follows:
A.

Parties and Amici

Appellant is Abdul Razak Ali.
Appellees are Donald J. Trump, President of the United States; Patrick M.
Shanahan, Acting Secretary of Defense; Rear Admiral Timothy C. Kuehhas,
Commander, Joint Task Force – GTMO; and Army Col. Steven Yamashita, Commander, Joint Detention Operations Group, Joint Task Force – GTMO. 1
Amici before the district court include:
1.

Muslim, Faith-Based, and Civil Rights Community Organizations:

Muslim Advocates, Asian Americans Advancing Justice, Asian American Legal
Defense and Education Fund, American-Arab Anti-Discrimination Committee,
Capital Area Muslim Bar Association, Council on American-Islamic RelationsNational, Muslim Bar Association of New York, Muslim Justice League, Muslim
Public Affairs Council, New Jersey Muslim Lawyers Association, Revolutionary
Love Project, T’ruah: The Rabbinic Call for Human Rights;

1

A certificate as to parties, rulings and related cases was filed by PetitionerAppellant Ali on November 12, 2018. Since that time, Acting Secretary Shanahan
and Rear Admiral Kuehhas have been automatically substituted for their predecessors in office pursuant to Fed. R. App. P. 43(c)(2).
i

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 3 of 50

2.

Center for Victims of Torture;

3.

Due Process Scholars: Professors Eric M. Freedman, Bernard E. Har-

court, Randy A. Hertz, Eric S. Janus, Jules Lobel, Kermit Roosevelt, Michael J.
Wishnie, and Larry Yackle.
There are presently no amici or intervenors before this Court.
B.

Rulings Under Review

The rulings under review include a memorandum opinion and order denying
habeas corpus relief, each dated August 10, 2018, and entered by Senior U.S. District Judge Richard J. Leon in Ali v. Obama, No. 10-cv-1020 (RJL) (D.D.C.) (Dkt.
Nos. 1540, 1541). The memorandum opinion is published in the federal reporter as
Ali v. Trump, 317 F. Supp. 3d 480 (D.D.C. 2018).
C.

Related Cases

1.

This case was previously before a panel of this Court in Ali v. Obama,

736 F.3d 542 (D.C. Cir. 2013), which affirmed the denial of Appellant Ali’s habeas corpus petition on the ground that he was lawfully detained pursuant to the Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224
(2001) (“AUMF”), because he was more likely than not a member of an Al Qaedaassociated force.
2.

On January 11, 2018, Appellant Ali and ten other Guantánamo Bay

detainees filed a habeas corpus challenge to the duration of their continuing deten-

ii

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 4 of 50

tion without charge or foreseeable end, arguing that it violates the Due Process
Clause of the Constitution, the AUMF, and international law including the laws of
war. The challenge, styled as a motion for an order granting the writ of habeas corpus, was jointly captioned and filed in nine district court habeas cases previously
filed by the detainees, including this case, Ali v. Trump, No. 10-cv-1020 (RJL)
(D.D.C.). By order of the district court, dated January 18, 2018, six of those cases
were assigned to Senior U.S. District Judge Thomas F. Hogan for resolution of the
detainees’ challenge to the duration of their detention. Two cases assigned to U.S.
District Judge Emmet G. Sullivan, and this case, assigned to Senior U.S. District
Judge Richard J. Leon, were not coordinated before Judge Hogan.
On August 10, 2018, Judge Leon denied habeas relief in Ali and this timely
appeal followed. The remaining detainees’ challenge to the duration of their detention has been fully briefed before Judge Hogan and Judge Sullivan, and Judge Hogan heard argument in July 2018, but neither has issued a decision.
3.

On May 18, 2018, Uthman Abdul Rahim Mohammed Uthman (ISN

27), a Yemeni Guantánamo detainee, filed a similar motion seeking an order granting the writ of habeas corpus, based on the arguments that his detention had become punitive and therefore unauthorized under the AUMF, that the relationship
between the conflict against Al Qaeda and those that had shaped the development
of the law of war had unraveled, that the particular conflict in which he was pur-

iii

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 5 of 50

portedly detained had ended, and finally that his continued detention violated the
Due Process Clause. See Mot. to Grant Pet. for Writ of Habeas Corpus, Abdah v.
Trump, No. 04-cv-1254 (RCL) (D.D.C. May 18, 2018) (Dkt. No. 1072). 2 That motion remains pending before Judge Lamberth.
4.

Pending before a panel of this Court is Qassim v. Trump, No. 18-

5148, which addresses whether prior panel decisions of this Court conflict with
Boumediene v. Bush, 553 U.S. 723 (2008). The case also addresses subsidiary
questions about whether Guantánamo detainees are entitled to due process of law
to challenge their detention, and what process is due to persons entitled to due process of law. It does not involve a direct challenge to duration of detention. Oral
argument was held on January 15, 2019 before a panel of Judges Millett, Pillard
and Edwards.
5.

In Alwi v. Trump, 901 F.3d 294 (D.C. Cir. 2018), this Court held in

part that a Guantánamo detainee forfeited constitutional challenges to his continuing detention by failing to raise them in the first instance before the district court.
Id. at 301. A petition for a writ of certiorari was filed on December 5, 2018, Alwi v.
Trump, S. Ct. No. 18-740, with the opposition filed April 3, 2019, and petitioner’s

2

The certificate as to parties, rulings and related cases filed by PetitionerAppellant Ali on November 12, 2018 neglected to include this case. Counsel apologize for the omission.
iv

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 6 of 50

reply filed April 16, 2019. The petition was distributed for the Court’s conference
of May 9, 2019 and relisted for the Court’s conference of May 16, 2019.
6.

Appellant Ali is not aware of any other related cases.
/s/Shayana Kadidal
Shayana Kadidal
Attorney for Petitioner-Appellant

v

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 7 of 50

TABLE OF CONTENTS
JURISDICTION.......................................................................................................1
ISSUES PRESENTED FOR REVIEW ...................................................................1
STATEMENT OF THE CASE ................................................................................1
SUMMARY OF ARGUMENT .............................................................................10
ARGUMENT .........................................................................................................12
I.

The Due Process Clause Applies at Guantánamo ..................................12

II.

This Court’s Precedents Are Not to the Contrary ..................................14

III.

Petitioner’s Detention Violates Due Process .........................................19
A. The Duration and Circumstances of Petitioner’s
Detention Violate Substantive Due Process ......................................20
B. Mr. Ali’s Continuing Detention, Justified by Only a
Preponderance of the Evidence and Deficient Procedural Protections,
and Disconnected from Any Ongoing Legitimate Purpose,
Violates Due Process .........................................................................23

IV.

The Court Should Apply Principles of Constitutional Avoidance
and Construe the AUMF Narrowly to Limit Continuing
Detention Authority at Guantánamo ......................................................31

CONCLUSION ......................................................................................................34
Certificate of Compliance ......................................................................................36
Certificate of Service .............................................................................................37

vi

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 8 of 50

TABLE OF AUTHORITIES
CASES
Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014)................................................. 16
Al-Adahi v. Obama, 613 F.3d 1102 (D.C. Cir. 2010) ............................................. 27
Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) .................................. 16-17
Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010).............................................. 27
Ali v. Obama, 736 F.3d 542 (D.C. Cir. 2013)..................... ii, 4, 5, 23, 24-25, 28, 31
Ali v. Obama, 741 F. Supp. 2d 19 (D.D.C. 2011)........................................... 1-3, 30
Ali v. Trump, 317 F. Supp. 3d 480 (D.D.C. 2018) ............................................ ii, 8-9
Al-Madhwani v. Obama, 642 F.3d 1071 (D.C. Cir. 2011) ..................................... 18
Alwi v. Trump, 901 F.3d 294 (D.C. Cir. 2018) ........................................................ iv
Ameziane v. Obama, 699 F.3d 488 (D.C. Cir. 2012)............................................... 12
Ashwander v. Tennessee, 297 U.S. 288 (1936) ...................................................... 32
Boumediene v. Bush, 553 U.S. 723 (2008) ................................ iv, 12-14, 22, 27, 30
Clark v. Martinez, 543 U.S. 371 (2005) ........................................................... 21, 32
Ex Parte Endo, 323 U.S. 283 (1944) ...................................................................... 33
Foucha v. Louisiana, 501 U.S. 71 (1992)................................................... 20, 26, 29
Haitian Ctrs. Council v. McNary, 969 F.2d 1326 (2d Cir. 1992)........................... 17
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............................ 13-14, 22, 27, 30-31, 33
Hussain v. Obama, 134 S. Ct. 1621 (2014) ..................................... 14, 22-23, 32-33

vii

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 9 of 50

INS v. St. Cyr, 533 U.S. 289 (2001) ........................................................................ 32
Johnson v. Eisentrager, 339 U.S. 763 (1950)......................................................... 17
Kansas v. Hendricks, 521 U.S. 346 (1997)....................................................... 26-29
Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) ................................... 8, 14-15
Kiyemba v. Obama, 561 F.3d 509 (D.C. Cir. 2009) ......................................... 15-16
Kiyemba v. Obama, 605 F.3d 1046 (D.C. Cir. 2010) ......................................... 8, 16
Latif v. Obama, 666 F.3d 746 (D.C. Cir. 2011) .......................................... 12, 27-29
Mathews v. Eldridge, 424 U.S. 319 (1976) ...................................................... 27, 30
Nowak v. United States, 356 U.S. 660 (1958) ........................................................ 26
Palko v. Connecticut, 302 U.S. 319 (1937) ............................................................ 23
Rasul v. Bush, 542 U.S. 466 (2004) .................................................................. 13, 26
Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) ...................................................... 17
Reid v. Covert, 354 U.S. 1 (1957) ........................................................................... 12
Rochin v. California, 342 U.S. 165 (1952) ............................................................. 23
Sale v. Haitian Ctrs. Council, 509 U.S. 918 (1993) ............................................... 17
Skilling v. United States, 561 U.S. 358 (2010) ....................................................... 32
Torres v. Puerto Rico, 442 U.S. 465 (1979) ........................................................... 17
United States v. Jordan, 256 F.3d. 922 (9th Cir. 2011).......................................... 26
United States v. Salerno, 481 U.S. 739 (1987) ..................................... 21-22, 26, 29
United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) ..................................... 12

viii

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 10 of 50

Woodby v. INS, 385 U.S. 276 (1966) ................................................................ 25-26
Zadvydas v. Davis, 533 U.S. 678 (2001) .......................................................... 21, 32
STATUTES AND OTHER LEGAL AUTHORITIES
28 U.S.C. § 1291 ....................................................................................................... 1
28 U.S.C. § 1331 ....................................................................................................... 1
28 U.S.C. § 2241 ....................................................................................................... 1
28 U.S.C. § 2243 ....................................................................................................... 1
Authorization for Use of Military Force,
Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001) ................................... ii, xii, 31
D.C. Circuit Rule 28(a)(1) ......................................................................................... i
Exec. Order No. 13,823, 83 Fed. Reg. 4,831 (Feb. 2, 2018) .................................... 6
Fed. R. App. P. 32(a)(7) .......................................................................................... 36
Fed. R. App. P. 43(c)(2) ............................................................................................. i
U.S. Const. art. 1 § 9, cl. 2 ........................................................................................ 1
U.S. Const. art. I, § 9, cl. 3 ...................................................................................... 16
BRIEFS, PLEADINGS AND TRANSCRIPTS
Mem. Order, Ali v. Obama, No. 10-cv-1020 (RJL), 2011 WL 1897393
(D.D.C. May 17, 2011) (Dkt. No. 1496) ....................................................... 3, 24
Mem. Order, Ali v. Obama, No. 10-cv-1020 (RJL) (D.D.C. June 11, 2012)
(Dkt. No. 1500) ................................................................................................... 3
Mot. to Grant Pet. for Writ of Habeas Corpus, Abdah v. Trump,
No. 04-cv-1254 (RCL) (D.D.C. May 18, 2018) (Dkt. No. 1072) ...................... iv

ix

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 11 of 50

Notice of Appeal, Ali v. Trump, No. 10-cv-1020 (RJL)
(D.D.C. Oct. 1, 2018) (Dkt. No. 1542) ............................................................ 1, 9
Order, Ali v. Obama, No. 10-cv-1020 (RJL) (D.D.C. Mar. 11, 2011)
(Dkt. No. 1474) .................................................................................................... 3
Order, Ali v. Obama, No. 10-cv-1020 (RJL)
(D.D.C. Aug. 10, 2018) (Dkt. No. 1541) ............................................................ ii
Order [Denying Petition for Initial Hearing En Banc],
Ali v. Trump, No. 18-5297, 2019 WL 850757
(D.C. Cir. Feb. 22, 2019) (Doc. #1774529)..................... 9, 10, 14, 15, 17-19, 22
Order, Qassim v. Trump, No. 18-5148, 2018 WL 3905809
(D.C. Cir. Aug. 14, 2018) (Doc. #1745386) ................................................ 28, 29
Pet. for Initial Hearing En Banc, Ali v. Trump, No. 18-5297
(D.C. Cir. Nov. 28, 2018) (Doc. #1761870) ........................................................ 9
Pet. for Writ of Certiorari, Alwi v. Trump, S. Ct. No. 18-740 (Dec. 5, 2018) ......... iv
Resp’ts’ Opp’n to Pet’rs’ Mot. for Order Granting Writ of Habeas Corpus,
Ali v. Trump, No. 10-cv-1020 (RJL) (D.D.C. Feb. 16, 2018)
(Dkt. No. 1525) .................................................................................................. 18
Resp’ts’ Opp’n to Pet’rs’ Mot. for Order Granting Writ of Habeas Corpus,
Nasser v. Trump, No. 04-cv-1194 (TFH) (D.D.C. Feb. 16, 2018)
(Dkt. No. 1126) .............................................................................................. 7, 21
Resp’ts-Appellees Resp. to Pet. for Initial Hearing En Banc, Ali v. Trump,
No. 18-5297 (D.C. Cir. Jan. 17, 2019) (Doc. #1768928) .................................... 9
Transcript of Oral Argument, Anam v. Trump, No. 04-cv-1194 (TFH)
(D.D.C. July 11, 2018) ....................................................................................... 10
Transcript of Oral Argument, Qassim v. Trump, No. 18-5148
(D.C. Cir. Jan. 15, 2019) .............................................................................. 16, 22

x

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 12 of 50

OTHER AUTHORITIES
https://www.prs.mil/Review-Information/Full-Review/........................................... 7
https://www.prs.mil/Review-Information/Subsequent-Full-Review/ ....................... 7
Josh Lederman, Tillerson to Abolish Most Special Envoys, Including
Guantánamo“Closer,” Miami Herald, Aug. 28, 2017 ........................................ 6
Charlie Savage, U.S. Misses Deadline to Repatriate Detainee Who
Plead Guilty, N.Y. Times, Feb. 20, 2018 ............................................................ 6
Charlie Savage, U.S. Transfers First Guantánamo Detainee Under Trump,
Who Vowed to Fill It, N.Y. Times, May 2, 2018................................................. 5
Donald J. Trump (@realDonaldTrump), Twitter (Jan. 3, 2017 9:20 AM) .............. 6
Donald J. Trump, President of the United States,
State of the Union Address (Jan. 30, 2018) ......................................................... 6
David Welna, Trump Has Vowed to Fill Guantánamo With Bad Dudes—
But Who?, NPR, Nov. 14, 2016 ........................................................................... 5
Lee Wolosky, former Dep’t of State Special Envoy for Guantánamo Closure, Remarks at Fordham University Law School Center on National Security Symposium: Revisiting Guantánamo Bay: Where We’ve Come, Where We’re Headed
(Feb. 17, 2018) ..................................................................................................... 6

xi

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 13 of 50

GLOSSARY
AUMF: The Authorization to Use Military Force of Sept. 14, 2001, Pub. L. 10740, 115 Stat. 224.
ODNI: The Office of the Director of National Intelligence, which directs and oversees the programs, projects, and activities of the intelligence community.

xii

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 14 of 50

JURISDICTION
The district court had jurisdiction under the habeas statute, 28 U.S.C.
§§ 2241 and 2243, the Suspension Clause of the Constitution (U.S. Const. art. 1
§ 9, cl. 2), and 28 U.S.C. § 1331. On August 10, 2018, the district court denied Petitioner-Appellant Ali’s motion for an order granting the writ of habeas corpus,
App. 13-19, and entered a final order disposing of all claims on August 10, 2018,
App. 20, appeal from which this Court has jurisdiction over pursuant to 28 U.S.C.
§ 1291. Plaintiffs timely filed their notice of appeal on October 1, 2018. See Notice
of Appeal, Ali v. Trump, No. 10-cv-1020 (RJL) (D.D.C. Oct. 1, 2018) (Dkt. No.
1542).

ISSUES PRESENTED FOR REVIEW
1.

Whether the Due Process Clause extends to Guantánamo.

2.

Whether the Due Process Clause limits the duration of detention at Guantánamo.

3.

Whether the AUMF’s authorization of only “necessary and appropriate
force” limits the duration of detention at Guantánamo.

STATEMENT OF THE CASE
The factual background of this case is set forth in the prior published decisions of the district court and this Court. See Ali v. Obama, 741 F. Supp. 2d 19, 21

1

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 15 of 50

(D.D.C. 2011) (Leon, J.), aff’d, 736 F.3d 542 (D.C. Cir. 2013). Mr. Ali, a 48-year
old citizen of Algeria, was captured by Pakistani forces at a guesthouse in Faisalabad, Pakistan, in March 2002. He was turned over to U.S. forces and transferred to
Guantánamo in June 2002, where he has remained for more than 16 years without
charge.
1.

Mr. Ali filed a habeas petition in December 2005, challenging the legality of

his initial capture and detention. The case proceeded to trial, and the district court
concluded by a preponderance of the evidence that he was lawfully detained because he was a member of “Abu Zubaydah’s force,” which the government
claimed at the time was associated with Al Qaeda. 714 F. Supp. 2d at 27. In reaching that conclusion, the court, relying on multiple layers of hearsay evidence,
found that Mr. Ali was present at the same guesthouse as Zubaydah for about 18
days; another detainee recalled seeing him in Afghanistan prior to his arrival in
Pakistan; a name the government associated with him was listed in a diary allegedly propounded by another associate of Zubaydah; the same name was listed in a
report of survivors of a fire in a different location in Afghanistan; and Ali supposedly made statements when he was first interrogated admitting that he had traveled
to Afghanistan to fight the U.S. and its allies. Mr. Ali denied the allegations and
the accuracy of the evidence offered in support of his detention. Id. at 26. After
trial but before the court announced its decision, the government disclosed that it

2

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 16 of 50

had withheld exculpatory evidence from the court and Mr. Ali’s counsel, and withdrew reliance on the principal evidence it had offered to justify his detention. Id. at
23-24.
After the district court issued its decision denying his habeas petition, id.,
Mr. Ali filed post-trial motions further challenging the reliability of evidence
against him and requesting a new trial. He challenged the government’s withholding of additional exculpatory evidence concerning a detainee who purportedly
identified him and corroborated his presence in Afghanistan. See Mem. Order, Ali
v. Obama, No. 10-cv-1020 (RJL), 2011 WL 1897393 (D.D.C. May 17, 2011) (Dkt.
No. 1496). He also challenged photographic evidence against him. See Mem. Order, Ali v. Obama, No. 10-cv-1020 (RJL) (D.D.C. Jun. 11, 2012) (Dkt. No. 1500).3
In response, the district court reiterated that Mr. Ali would be detainable in any
event because his presence at the guesthouse was enough, alone, to find that he
was more likely than not a member of Zubaydah’s force. See Mem. Order, 2011
WL 1897393, at *1.
Mr. Ali appealed, and this Court affirmed the denial of his habeas petition on
the ground that he was lawfully detained at Guantánamo under the AUMF because

3

In addition to the two orders cited in the text (Dkt. Nos. 1496 and 1500), an
additional order, summarily rejecting Ali’s post-hearing motion for sanctions and
entry of the writ or a new hearing, was also issued by Judge Leon after the original
published opinion (741 F. Supp. 2d 19) of January 11, 2011 denying the writ. See
Order, Ali v. Obama, No. 10-cv-1020 (D.D.C. Mar. 11, 2011) (Dkt. No. 1474).
3

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 17 of 50

he was more likely than not a member of an Al Qaeda-associated force. Ali v.
Obama, 736 F.3d 542 (D.C. Cir. 2013). The panel’s decision was heavily reliant on
the preponderance standard. See, e.g., id. at 550 (“Ali maintains that many of those
facts [offered to support his detention], considered individually, could have innocent explanations. Maybe yes, maybe no.”); id. at 551 (“Ali more likely than not
was part of Abu Zubaydah’s force. To be sure, as in any criminal or civil case,
there remains a possibility that the contrary conclusion is true ... But the preponderance standard entails decisions based on the more likely conclusion.”) (emphasis in original).
Judge Edwards concurred in the judgment. Id. at 552-54. He noted:
Nothing in the record indicates that Ali “planned, authorized, committed, or aided the terrorist attacks” of September 11, 2001, or that he
“harbored [terrorist] organizations or persons,” or that he was “part of
or substantially supported al-Qaeda, the Taliban, or associated forces,” or that he “committed a belligerent act” against the United States.
Ali may be a person of some concern to Government officials, but he
is not someone who transgressed the provisions of the AUMF or the
NDAA. Ali’s principal sin is that he lived in a “guest house” for
“about 18 days.”
Id. at 553. He added: “The majority’s reliance on a ‘personal associations’ test to
justify its conclusion that Ali is detainable as an ‘enemy combatant’ rests on the
case law from this circuit cited in the majority opinion,” setting forth procedural
and evidentiary rules and detention standards in these Guantánamo habeas cases,
“which I am bound to follow.” However, in his view that case law went “well be-

4

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 18 of 50

yond” what the AUMF prescribed. Id. With “no end in sight” to the War on Terror,
“the result of our judgment today is that Ali may now be detained for life.” Id.
“The troubling question in these detainee cases is whether the law of the circuit has
stretched the meaning of the AUMF and the NDAA so far beyond the terms of
these statutory authorizations that habeas corpus proceedings like the one afforded
Ali are functionally useless.” Id. at 553-54.
2.

Since Mr. Ali’s prior round of appeal concluded, the population at Guantá-

namo has shrunken to the point where 40 men remain. Five of the remaining prisoners have been cleared for release by processes requiring the unanimous consensus of all relevant agencies (including the ODNI, FBI, State Department, and the
military). Despite this, no one has been transferred out of Guantanamo under the
current administration (with the exception of a single prisoner released in fulfillment of the terms of his plea bargain before a military commission), 4 and likely
will not be, absent judicial intervention.
During his campaign, President Trump pledged to keep Guantánamo open.5
As President-Elect he declared that “there should be no further releases from

4

See Charlie Savage, U.S. Transfers First Guantánamo Detainee Under
Trump, Who Vowed to Fill It, N.Y. Times, May 2, 2018, available at
https://nyti.ms/2reWHbK.
5
See David Welna, Trump Has Vowed to Fill Guantánamo With Bad Dudes—
But Who?, NPR, Nov. 14, 2016, available at http://n.pr/2CNr01T.
5

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 19 of 50

[Guantánamo].” 6 On January 30, 2018, he issued Executive Order 13,823, revoking President Obama’s ten-year-old directive to close the prison. Exec. Order
13,823 § 2(c), 83 Fed. Reg. 4831. The President announced this order during his
January 30, 2018 State of the Union address by deriding Presidents Bush and
Obama for their willingness to release Guantánamo prisoners.7
A caveat in the Executive Order permits the Secretary of Defense to transfer
prisoners “when appropriate,” id. § 3(a), 83 Fed. Reg. at 4832. However, the State
Department’s Office of the Special Envoy for Guantánamo Closure, which has historically been responsible for executing the essential diplomatic, policy and administrative steps incident to a prisoner transfer, has been shut down. 8 The Executive
Order also required the Defense Secretary to recommend, within 90 days, “policies
to the President regarding the disposition of individuals” currently detained at the
base or to be transferred there in the future, but no such policies have been publicly
6

Donald J. Trump (@realDonaldTrump), Twitter (Jan. 3, 2017 9:20am)
https://twitter.com/realDonaldTrump/status/816333480409833472.
7
Donald J. Trump, President of the United States, State of the Union Address
(Jan. 30, 2018).
8
Josh Lederman, Tillerson to Abolish Most Special Envoys, Including Guantánamo “Closer,” Miami Herald, Aug. 28, 2017, http://hrld.us/2Fd7b13; Charlie
Savage, U.S. Misses Deadline to Repatriate Detainee Who Plead Guilty, N.Y.
Times, Feb. 20, 2018, http://nyti.ms/2CyweK1; Lee Wolosky, former Department
of State Special Envoy for Guantánamo Closure, Remarks at Fordham University
Law School Center on National Security Symposium: Revisiting Guantánamo Bay:
Where We’ve Come, Where We’re Headed (Feb. 17, 2018) (describing responsibility of office for negotiating—and ensuring ongoing compliance with—
monitoring and well-being commitments by receiving governments), available at
http://bit.ly/2H184ut.
6

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 20 of 50

released, and Defense Secretary Mattis has since resigned with no permanent replacement yet named. Even if it were possible to execute a transfer in the current
environment, the only process nominally capable of designating detainees as
cleared for release, review before the Periodic Review Board, has not cleared a
single detainee under the current administration 9 (and in any event lacks the power
to effectuate its decisions by ordering release). The Administration’s rhetorical
commitment to make no discretionary transfers has been reinforced by its actions:
as confirmed by filings made in parallel proceedings below, the government has
not made an iota of effort to transfer even the cleared detainees who moved for the
same relief as Mr. Ali did. 10
Given the Executive Branch’s categorical opposition to detainee transfers,
regardless of individualized circumstances, detainees appear to face two to six
more years with no possibility of release and the real prospect of life detention
even after President Trump leaves office. For Mr. Ali, this means 18 to 22 years—
9

Eighteen Periodic Review Board hearings have been held between January
20, 2017 and the filing of this brief. Of the fifteen hearings initiated via notice to
the detainee under this administration, ten were initially noticed only after the January 2018 filing of the motion at issue in this appeal. See https:
//www.prs.mil/Review-Information/Full-Review/; https://www.prs.mil/
Review-Information/Subsequent-Full-Review/.
10
See Resp’ts’ Opp’n to Pet’rs’ Mot. for Order Granting Writ of Habeas Corpus at 6-10, Nasser v. Trump, No. 04-cv-1194 (TFH) (D.D.C. Feb. 16, 2018) (Dkt.
No. 1126) (failing to document any efforts at transfer for eight petitioners, two
cleared, in response to district court order (Dkt. No. 1110) to report on status of
movant detainees, including “whether the Government intends to transfer the Petitioners previously designated for transfer”).
7

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 21 of 50

and a possibility of lifetime detention—without trial and based upon nothing more
than a preponderance of the evidence.
3.

Several years after his prior appeal was denied, on January 11, 2018, Mr. Ali

and ten other Guantánamo detainees filed a habeas corpus challenge to the duration
of their continuing detention without charge or foreseeable end, arguing that it violates the Due Process Clause and the AUMF as informed by the laws of war. The
challenge, styled as a motion for an order granting the writ of habeas corpus, was
jointly captioned and filed in the nine district court habeas cases previously filed
by these eleven detainees. By order of the district court, dated January 18, 2018,
eight of those detainees’ cases were assigned to Senior U.S. District Judge Thomas
F. Hogan for resolution of the detainees’ duration of detention challenge. Two detainees’ cases assigned to U.S. District Judge Emmet G. Sullivan, and this one assigned to Senior U.S. District Judge Richard J. Leon, were not coordinated before
Judge Hogan.
On August 10, 2018, Judge Leon denied habeas relief in Mr. Ali’s case,
summarily dismissing Ali’s constitutional challenge to the duration of his detention
based on this Court’s decision in Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir.
2009) (“Kiyemba I”), vacated and remanded, 559 U.S. 131 (2010), reinstated as
amended, 605 F.3d 1046 (D.C. Cir. 2010), which Judge Leon interpreted categorically to preclude extension of the Due Process Clause to Guantánamo. See Ali, 317

8

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 22 of 50

F. Supp. 3d at 488 (the Court of Appeals “has already held that the due process
clause does not apply in Guantanamo.” (emphasis in original)). The district court
concluded that other panel decisions of this Court barred Mr. Ali’s claim that the
AUMF limits the duration of his detention, even if that means he will die in Guantánamo. Id. at 485-87. Ali filed a timely notice of appeal. See Notice of Appeal, Ali
v. Trump, No. 10-cv-1020 (RJL) (D.D.C. Oct. 1, 2018) (Dkt. No. 1542).
Mr. Ali petitioned this Court for initial consideration en banc, seeking a
conclusive statement that this Circuit’s precedents do “not preclude extension of
the Due Process Clause to Guantánamo.” Petition for Initial Hearing En Banc at
13, Ali v. Trump, No. 18-5297 (D.C. Cir. Nov. 28, 2018) (Doc. # 1761870). The
petition noted the “obvious confusion” engendered in the district courts by dictum
in Kiyemba I and various opinions by judges of this Court in the decade since,
which led to the district court’s erroneous conclusion that Ali’s claims were foreclosed by Circuit precedent in this case. Id. at 16. In response, the government asserted that this Court has “clearly and repeatedly” asserted that the Due Process
Clause does not apply at Guantánamo. Gov’t Response at 7 (D.C. Cir. Jan. 17,
2019) (Doc # 1768928). The Court denied the petition, Order, Ali v. Trump, No.
18-5297, 2019 WL 850757 (D.C. Cir. Feb. 22, 2019), App. 21-23, and set a schedule for panel briefing. Judge Tatel issued a concurrence in the denial of initial hearing en banc, noting that “Kiyemba I did not resolve whether the Fifth Amendment

9

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 23 of 50

affords detainees any procedural due process protections,” nor did subsequent
opinions from this Court. Id. at *2 (Tatel, J., joined by Pillard, J., concurring in the
denial of initial hearing en banc), App. 22-23.
The other ten detainees’ parallel Due Process-based challenges to their detention, filed on the same date as Mr. Ali’s sixteen months ago, have not yet been
decided by Judges Hogan or Sullivan. Judge Hogan, who heard oral argument on
the motions on July 11, 2018, repeatedly indicated during argument that he felt
himself bound by the Kiyemba dictum. 11
SUMMARY OF ARGUMENT
The Due Process Clause of the Constitution applies at Guantánamo and
places substantive and procedural limitations on executive detention of the kind at
issue here, including a durational limitation that compels relief regardless of the
original bases for the detention. Mr. Ali has been detained for nearly seventeen
years without charge and has far surpassed that constitutionally-imposed durational
limit, particularly in light of the fact that the executive branch has apparently determined that no one—regardless of circumstance and independent of any legal

11

See Transcript of Oral Argument, Anam v. Trump, No. 04-cv-1194 (TFH)
(D.D.C. Jul. 11, 2018) at 11-12, App. 25-26 (“I understand your arguments, [that]
it’s dicta. But how many times do I have to have dicta to make it the law for me to
follow? ... Maybe they’re repeating what someone else had already said....”); id. at
69, App. 28 (concluding argument by stating “petitioners ... have presented some
serious issues. I do not, however, come away convinced that this Court has a position to overrule our Court of Appeals”).
10

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 24 of 50

rationale—will be transferred from Guantánamo. Perpetual, ongoing detention
cannot be based on past conduct alone, but must be evidentiarily tethered to an ongoing, specific and non-punitive purpose. And, to be sure, perpetual detention on
the basis of no more than executive fiat is a purposeless and arbitrary restraint on
liberty that must be remediated by the judicial branch. In addition, detention of this
length cannot continue, consistent with due process, based only on a preponderance of the evidence that an individual was nearly two decades ago a member of or
associated with a detainable group, particularly where that low burden of proof is
substantiated only with multiple-level hearsay. The risk of ongoing, erroneous detention based on such thin procedural protections likewise compels relief.
This Court should hold that the Due Process Clause applies at Guantánamo,
and: (1) order Mr. Ali’s release as a matter of law on the ground that the duration
of his continuing detention violates substantive due process; or (2) remand to the
district court to determine in the first instance whether Mr. Ali’s continuing detention violates substantive and procedural due process. If the Court orders remand, it
should do so with instructions to the district court to apply a clear and convincing
evidence burden of proof; to scrutinize more closely the use of hearsay evidence
offered to support detention; to mandate that the government articulate a legitimate
and particularized purpose for Mr. Ali’s continuing noncriminal detention; and to
consider whether application of due process requires additional procedural protec-

11

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 25 of 50

tions. This Court (and, on any remand, the district court) should also consider
whether these issues may be avoided by a limiting reading of the scope of detention authorized by the AUMF.
ARGUMENT 12
I.

The Due Process Clause Applies at Guantánamo
In Boumediene v. Bush, 553 U.S. 723 (2008), the Supreme Court held that

the Suspension Clause of the Constitution protects the right of detainees held at
Guantánamo to challenge the legality of their detention. In reaching this conclusion, the Court explained that it was merely reaffirming its long-standing jurisprudence to determine what constitutional standards apply when the government acts
with respect to non-citizens outside the territorial boundaries of the United States.
See United States v. Verdugo-Urquidez, 494 U.S. 259, 277 (1990) (Kennedy, J.,
concurring) (“The proposition is, of course, not that the Constitution ‘does not apply’ overseas but that there are provisions in the Constitution which do not necessarily apply in all circumstances in every foreign place.”) (quoting Reid v. Covert,
354 U.S. 1, 74 (1957) (Harlan, J., concurring)).
Specifically, in Boumediene, the Court applied a functional test in determining that the Suspension Clause restrains the Executive’s conduct as to Guantánamo
12

All issues presented in this appeal are issues of law. This Court reviews the
district court’s legal conclusions and denial of the writ de novo. See, e.g., Ameziane
v. Obama, 699 F.3d 488, 494 (D.C. Cir. 2012); Latif v. Obama, 677 F.3d 1175,
1178 (D.C. Cir. 2011).
12

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 26 of 50

detainees, and concluded that it would not be “impracticable and anomalous” to
grant detainees habeas review because “there are few practical barriers to the running of the writ” at Guantánamo. See 553 U.S. at 769-71; id. at 784-85 (addressing
due process). The Court reasoned that “Guantánamo Bay ... is no transient possession. In every practical sense Guantánamo is not abroad; it is within the constant
jurisdiction of the United States.” Id. at 768-69; see also Rasul v. Bush, 542 U.S.
466, 487 (2004) (Kennedy, J., concurring) (“Guantánamo Bay is in every practical
respect a United States territory” where our “unchallenged and indefinite control ...
has produced a place that belongs to the United States, extending the ‘implied protection’ of the United States to it.”).
After Boumediene, it inescapably follows that the Due Process Clause also
applies—in the same measure as the Suspension Clause—at Guantánamo to constrain certain executive branch actions. This is particularly apt given that the concepts animating due process and habeas corpus are intertwined. See Hamdi v.
Rumsfeld, 542 U.S. 507, 525-26 (2004) (discussing interaction of habeas and due
process); id. at 555-57 (Scalia, J., dissenting) (same). The Boumediene Court’s
functional analysis led to recognition of the applicability of the Suspension Clause
in Guantánamo. Therefore, at least some of the protections of the Due Process
Clause must also reach Guantánamo because there are no practical barriers that
would apply to one provision but not the other. See id. at 538 (“[A] court that re-

13

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 27 of 50

ceives 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.”);
Boumediene, 553 U.S. at 784-85 (addressing due process); cf. Hussain v. Obama,
134 S. Ct. 1621, 1622 (2014) (statement of Justice Breyer respecting denial of certiorari) (Supreme Court has not yet decided if AUMF authorizes detention of individuals merely for being “part of” Al Qaeda or Taliban, or, if so, whether “either
the AUMF or the Constitution limits the duration of detention”).
Just as there are no practical or structural barriers that make it impracticable
or anomalous to adjudicate the factual or legal justification for detention under the
Suspension Clause, there are no such barriers to preclude adjudication of the question of durational limits to detention under the Due Process Clause, or of the other
substantive and procedural requirements imposed by the Due Process Clause that
would protect against arbitrary detention.
II.

This Court’s Precedents Are Not to the Contrary
As two judges of this Court recently noted in denying Ali’s petition for ini-

tial hearing en banc in this case, this Court’s “cases do ‘not preclude extension of
the Due Process Clause to Guantánamo.’” 2019 WL 850757, at *1 (Tatel, J., joined
by Pillard, J., concurring in denial of initial hearing en banc) (quoting petition). In
the district court the government argued—and the court agreed—that a single sentence in this Court’s decision in Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C.

14

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 28 of 50

Cir. 2009) (Kiyemba I), precluded the application of due process at Guantánamo:
“the due process clause does not apply to aliens without property or presence in the
sovereign territory of the United States.” That statement is clearly dictum. The Kiyemba I decision addressed only the narrow question of whether due process compels entry and release into the United States of non-citizens without property or
presence in the country—a particular context in which the political branches’ authority to regulate immigration is maximal. Id. at 1026-27. “The relevant passage
in Kiyemba I refuted the premise that a ‘fundamental right of liberty’ [protected by
substantive due process] required the government to release the detainees onto
United States soil. ... [W]e should not lightly read our opinions to sweep far beyond the facts of a given case.” Ali, 2019 WL 850757, at *2.
Indeed, this limited reading of Kiyemba I is the only one consistent with
Boumediene or even subsequent panel decisions of the D.C. Circuit. See Kiyemba
v. Obama, 561 F.3d 509, 514 n.4 (D.C. Cir. 2009) (Kiyemba II) (“[W]e assume
arguendo these alien detainees have the same constitutional rights ... as ... U.S. citizens” detained by the U.S. military in Iraq); id. at 518 n.4 (Kavanaugh, J., concurring) (“[A]s explained in the opinion of the Court and in this concurring opinion,
the detainees do not prevail in this case even if they are right about the governing
legal framework: Even assuming that the Guantánamo detainees ... possess constitutionally based due process rights” they would not prevail); Kiyemba v. Obama,

15

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 29 of 50

605 F.3d 1046, 1048 (D.C. Cir. 2010) (Kiyemba III) (“[P]etitioners never had a
constitutional right to be brought to this country and released.”); id. at 1051 (Rogers, J., concurring) (“Whatever role due process and the Geneva Conventions
might play with regard to granting the writ, petitioners cite no authority that due
process or the Geneva Conventions confer a right of release in the continental
United States.”); cf. Aamer v. Obama, 742 F.3d 1023, 1039 (D.C. Cir. 2014) (“As
the government does not press the issue, we shall, for purposes of this case, assume
without deciding that the constitutional right to be free from unwanted medical
treatment extends to nonresident aliens detained at Guantánamo.”). 13
Unsurprisingly, therefore, the government has conceded, and subsequent decisions of the D.C. Circuit have assumed, that the Ex Post Facto Clause of the
Constitution, U.S. Const. art. I, § 9, cl. 3, applies at Guantánamo in light of
Boumediene and notwithstanding Kiyemba I. See Al Bahlul v. United States, 767
F.3d 1, 18 (D.C. Cir. 2014) (en banc) (noting that government concedes Ex Post
Facto Clause applies at Guantánamo); id. at 49 (Rogers, J., concurring)

13

Questions from the bench during the recent oral argument before this Court
in Qassim v. Trump, No. 18-5148, similarly expressed great skepticism concerning
any broader reading of Kiyemba. See Transcript of Oral Argument (Jan. 15, 2019)
at 61, App. 33 (Millett, J.: “the only issue [in Kiyemba] was whether there were
different ... asserted sources with a right for a specific remedy of release into the
United States, and in that context the Court says due process clause, that’s not a
source for a right of release into the United States, see how we’ve dealt with exclusion....”); id. at 62, App. 34 (Edwards, J.: “I’m just stunned [by reliance on Kiyemba;]... it’s not about the issues we are considering today”).
16

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 30 of 50

(“[Boumediene’s] analysis of the extraterritorial reach of the Suspension Clause
applies to the Ex Post Facto Clause because the detainees’ status and location at
Guantánamo Bay are the same, and the government has pointed to no distinguishing ‘practical obstacles’ to its application.”); id. at 65 n.3 (Kavanaugh, J., dissenting) (“As the Government concedes, the Boumediene analysis leads inexorably to
the conclusion that the ex post facto right applies at Guantánamo.”). As then-Judge
Kavanaugh explained, “[d]etermining whether the Constitution applies to non-U.S.
citizens in U.S. territories requires a ‘functional’ rather than ‘formalistic’ analysis
of the particular constitutional provision and the particular territory at issue. ... In
Boumediene, the Court determined that Guantánamo was a de facto U.S. territory—akin to Puerto Rico, for example, and not foreign territory.” Id. (distinguishing
Johnson v. Eisentrager, 339 U.S. 763, 777-81 (1950)); see also Torres v. Puerto
Rico, 442 U.S. 465, 469 (1979) (Due Process Clause applies in Puerto Rico); Haitian Ctrs. Council v. McNary, 969 F.2d 1326, 1343 (2d Cir. 1992) (application of
Fifth Amendment at Guantánamo would not be impracticable or anomalous), vacated as moot, Sale v. Haitian Ctrs. Council, 509 U.S. 918 (1993).
“[A]lthough this court has occasionally restated Kiyemba I’s holding, ... it
has never purported to expand the original opinion’s ambit” beyond the immigration context. Ali, 2019 WL 850757, at *2 (Tatel, J. concurring in denial of initial
review en banc). This Court’s decisions in Rasul v. Myers, 563 F.3d 527 (D.C. Cir.

17

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 31 of 50

2009), and Al-Madhwani v. Obama, 642 F.3d 1071 (D.C. Cir. 2011), do no more
than restate the content of the Kiyemba dictum in their own dictum: Neither case
rested on application of the Due Process Clause, as the government conceded below.14 Rasul, a damages action by former detainees for their torture and abuse at
Guantánamo, was dismissed on qualified immunity grounds after the panel concluded that, for conduct prior to the Supreme Court’s decision in Boumediene, it
was not clearly established that detainees at Guantánamo have due process rights.
See 563 F.3d at 530-32. The Rasul court expressly declined to address the plaintiffs’ due process claims. Id. It did not, and could not, hold that Boumediene limited the Constitution’s extraterritorial reach to the Suspension Clause; the government’s concession in Bahlul regarding the Ex Post Facto Clause proves this could
not be the case. Al-Madhwani concerned a detainee’s objection to consideration of
evidence outside the record during a habeas corpus hearing. The panel deemed the
legal basis for the objection “obscure,” noted that Al-Madhwani cited a due process case as the basis for it, but then stated that it need not decide what the legal
basis for the objection was because, as a factual matter, the district court did not
rely on the contested evidence at all. Al-Madhwani, 642 F.3d at 1077. The panel’s
passing reference to the Kiyemba dictum, id., is thus itself dictum.
14

See Resp’ts’ Opp’n to Pet’rs’ Mot. for Order Granting Writ of Habeas Corpus at 36, Ali v. Trump, No. 10-cv-1020 (Dkt. No. 1525) (“both the Rasul and alMad[hwan]i decisions from the Court of Appeals ultimately rested on non-dueprocess grounds”).
18

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 32 of 50

“This limited understanding of Kiyemba I helps explain why subsequent
panels of this court have demurred from reading the case to resolve, for all time,
the due process rights of Guantanamo detainees. ... If Kiyemba I had actually decided that territorial sovereignty offers the only possible basis for extending any
due process protections, then Rasul and Al-Madhwani would have had no reason to
avoid the question.” Ali, 2019 WL 850757, at *2 (Tatel, J,. concurring in denial of
initial hearing en banc). Accordingly, whatever the case may be with respect to due
process rights to enter the United States for release addressed in the Kiyemba cases, it is plain that some measure of due process extends to executive actions undertaken in Guantánamo.
At the same time, it is also clear that confusion about the proper interpretation of this Court’s dicta has caused the district courts to decline Mr. Ali’s and other 15 detainees’ requests to apply the Due Process Clause to their detentions. As the
prison approaches its second decade in operation, continued misapplication of this
precedent forecloses a just and proper disposition of profound claims of substantive and procedural fairness brought by the remaining detainees.
III.

Petitioner’s Detention Violates Due Process
Mr. Ali has already been detained for seventeen years, almost all of that time

spent in Guantánamo. He is detained because he was held “more likely than not” to
15

See supra note 11 (discussing Judge Hogan’s questions from the bench during hearing on parallel claims of eight other detainees).
19

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 33 of 50

be part of a force “associated” with an actual target of the AUMF based on inferences made primarily from his eighteen-day stay at a guesthouse nearly twenty
years ago. The evidence used to meet that negligence standard of proof was multiple-level hearsay, impossible to confront and challenge from a practical perspective. For this he faces the prospect of lifetime detention without charge, pursuant to
a conflict that has already lasted longer than any in modern history and continues
without foreseeable end, and he may well die in Guantánamo absent judiciallyenforced limitations. This is entirely unprecedented in American law: never has a
court upheld indefinite, potentially lifetime non-criminal detention under such circumstances. Such an outcome is incompatible with both the substantive and procedural guarantees of the Due Process Clause.
A.

The Duration and Circumstances of Petitioner’s Detention Violate
Substantive Due Process
Due process is a concept that requires rationality and proportionality in gov-

ernment action; it is designed to limit excessive or arbitrary executive action. Accordingly, the Due Process Clause “contains a substantive component that bars certain arbitrary, wrongful government actions regardless of the fairness of the
procedures used to implement them.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992).
Today, the individual facts of Mr. Ali’s case—what he may or may not have done,
or who he may have or not associated with seventeen years ago—are essentially
irrelevant to the decision to continue depriving him of liberty. His detention is
20

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 34 of 50

driven by a new de facto executive branch policy to no longer consider or work
towards effectuating any new transfers out of Guantánamo, 16 and untethered to any
ongoing, individualized purpose to detain him. The constitutionally-mandated response to such a manifestly arbitrary and punitive form of executive detention is
judicial intervention.
The Supreme Court has instructed that substantive due process places limits
on the duration of executive detention—undertaken for special circumstances outside criminal process—of the kind at issue here. See Zadvydas v. Davis, 533 U.S.
678, 690 (2001) (“A statute permitting indefinite detention of an alien would raise
a serious constitutional problem.”); see also Clark v. Martinez, 543 U.S. 371, 384
(2005) (recognizing that detention only authorized for “a period consistent with the
purpose” of the original detention); United States v. Salerno, 481 U.S. 739, 747
(1987) (upholding pre-trial civil detention statute in part because maximum length
of detention was “limited by the stringent time limitations of the Speedy Trial
Act”). Indeed, the Court in Hamdi recognized that the purpose for which the Court

16

Even the five detainees cleared for transfer (by unanimous consent of the
relevant agencies, through either the 2009-10 Guantanamo Review Task Force or
the Periodic Review Board process) remain detained, with no apparent action
whatsoever by this administration towards effectuating their transfer. See, e.g.,
Resp’t’s Opp’n to Pet’rs’ Mot. for Order Granting Writ of Habeas Corpus at 9-10,
Nasser v. Trump, No. 04-cv-1194 (TFH) (D.D.C. Feb. 16, 2018) (Dkt. No. 1126)
(reporting to the district court, at the court’s request, on lack of any action for two
cleared detainees who joined in filing near-identical motion to the one giving rise
to this proceeding).
21

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 35 of 50

ratified an initial “enemy combatant” detention—incapacitation from battle—had
to be time bound. Hamdi, 542 U.S. at 521 (holding that “indefinite or perpetual
detention” is impermissible); id. at 536 (“[A] state of war is not a blank check for
the President.”); see also Boumediene, 553 U.S. at 797-98 (courts may be required
to define the outer boundaries of war powers if terrorism continues to pose a threat
for years to come).
The scope of detention authority at Guantánamo, both in terms of duration
and permissible purpose, must be reconciled with the limitations imposed by substantive due process. 17 See Hussain v. Obama, 134 S. Ct. 1621 (2014) (statement
of Justice Breyer respecting denial of certiorari) (Supreme Court has not “considered whether, assuming detention on these bases is permissible, either the AUMF
17

Several judges of this Court have noted that the argument rejected in Kiyemba was whether substantive due process provided a right that trumped the political
branches’ control over admission of non-citizens into the United States. See Ali,
2019 WL 850757, at *2 (“The relevant passage in Kiyemba I refuted the premise
that a ‘fundamental right of liberty’ required the government to release the detainees onto United States soil. ... That hardly sounds like a procedural protection. ...
the relevant dispute ... concerned only whether the law gave the detainees a substantive right to enter the United States. The detainees asserted no procedural due
process rights....”); see also Transcript of Oral Argument at 58-59, Qassim v.
Trump, No. 18-5148 (D.C. Cir. Jan. 15, 2019) (Pillard, J.: Kiyemba “deals with
effectively a substantive due process question about whether there’s a liberty interest...to be released into the United States [in light of] sovereign authority ... on the
part of the political branches to make decisions about who comes in [to the United
States] and who doesn’t”). While that characterizes the limited nature of the issue
in dispute in Kiyemba accurately, it remains the case that Kiyemba says nothing
about the availability of substantive (as opposed to procedural) due process rights
at Guantánamo generally—to the extent those rights do not directly collide with
the power of the political branches over immigration.
22

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 36 of 50

or the Constitution limits the duration of detention”). As Judge Edwards noted six
years ago in this very case, “[i]t seems bizarre, to say the least, that [a detainee]
who has never been charged with or found guilty of a criminal act and who has
never ‘planned, authorized, committed or aided [any] terrorist attacks’ is now
marked with a life sentence.” Ali, 736 F.3d at 553 (Edwards, J., concurring). Perpetual detention based on the “principal sin” of an eighteen-day stay in a guesthouse “shocks the conscience,” Rochin v. California, 342 U.S. 165, 172 (1952),
flouting principles “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), and therefore violates the guarantees of substantive
due process.
B.

Mr. Ali’s Continuing Detention, Justified by Only a Preponderance of
the Evidence and Deficient Procedural Protections, and Disconnected
from Any Ongoing Legitimate Purpose, Violates Due Process
In habeas proceedings conducted nearly nine years ago, the government as-

serted that Ali was a member of a force “associated” with Al Qaeda, primarily
based on the fact he stayed at a guesthouse for about 18 days. This Court ultimately accepted the district court’s conclusion that a preponderance of the evidence
supported the finding that Ali was part of that force. But “[n]othing in the record
indicate[d]” directly that Ali was “part of or substantially supported” that “[Al
Qaeda-]associated force[].” Ali, 736 F.3d at 553 (Edwards, J., concurring). Instead,
as the district court’s order on reconsideration noted, it found that “‘petitioner’s

23

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 37 of 50

presence at [the Faisalabad] guesthouse is enough, alone, to find that he was more
likely than not a member of Abu Zubaydah’s force’ and was therefore detainable.”
Mem. Order, Ali v. Obama, No. 10-cv-1020 (RJL), 2011 WL 1897393, at *1
(D.D.C. May 17, 2011) (Dkt. No. 1496) (quoting Ali, 741 F. Supp. 2d at 26).
A panel of this Court upheld that finding, in a ruling that the concurring
judge accurately characterized as relying on “personal associations” to infer membership in the armed force in question. 736 F.3d at 553 (Edwards, J., concurring).
Like the district court, the panel placed special emphasis on the detainee’s “principal sin,” id., that he spent eighteen days living in a guesthouse with “an al Qaedaassociated” individual, 736 F.3d at 543, 545 (panel op.). From that and a number of
allegations based upon hearsay, the panel found enough “indicia” to support membership in this “enemy force,” noting that “determining whether an individual is
part of ... an associated force almost always requires drawing inferences from circumstantial evidence, such as that individual’s personal associations.” Id. at 546.
The panel expressly relied on the preponderance standard in determining that the
evidence was sufficient to uphold his detention. Id. at 550 (“Ali maintains that
many of those facts, considered individually, could have innocent explanations.
Maybe yes, maybe no.”); id. at 551 (“To be sure, as in any criminal or civil case,

24

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 38 of 50

there remains a possibility that the contrary conclusion is true—in other words, that
Ali was not part of Abu Zubaydah’s force”). 18
The practical consequence of this “is that Ali may now be detained for
life” 19—a conclusion made more stark by the current executive policy to no longer
make discretionary transfers. That this Court accepted such a low burden of proof,
with its attendant risk of error, on a substantive detention standard requiring no
more than membership in or indirect support for an “associated” force, was expressly premised on the theory that these were temporary wartime detentions that
need not meet a higher threshold. 736 F.3d at 545 (standard of proof is lower “because military detention ends with the end of the war”); id. at 552 (“Importantly,
the standard of proof for such military detention is not the same as the standard of
proof for criminal punishment, in part because [it is non-punitive] and in part because military detention ... comes to an end with the end of hostilities.”).
That construct has long since dissipated. Ali’s detention can no longer be
based upon “no higher degree of proof than applies in a negligence case.” Woodby
v. INS, 385 U.S. 276, 285 (1966). There is no precedent in the law that would tolerate such prolonged, indefinite detention based on a preponderance standard and

18

The panel opinion noted that “we need not and do not rely on evidence from
two detainees whose credibility Ali has contested, Muhammed Noor Uthman and
Musa’ab al-Madhwani” (both of whom have, incidentally, long since left Guantánamo). 736 F.3d at 550 n.5.
19
736 F.3d at 553 (Edwards, J., concurring).
25

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 39 of 50

its correspondingly heightened risk of error. In evaluating the constitutionality of
prolonged detention schemes, the Supreme Court has consistently required no less
than clear and convincing evidence. See, e.g., Woodby, 385 U.S. at 286 (deportation); Kansas v. Hendricks, 521 U.S. 346, 352 (1997) (civil commitment of sex
offenders); Foucha, 504 U.S. at 81 (civil commitment of criminal defendant found
not guilty by reason of insanity); Salerno, 481 U.S. at 747 (pre-trial detention
based on dangerousness); Nowak v. United States, 356 U.S. 660, 663 (1958) (denaturalization); see also United States v. Jordan, 256 F.3d. 922, 923 (9th Cir.
2011) (sentence enhancements that would have an “extremely disproportionate”
effect on the sentence relative to the offense must be proved by clear and convincing evidence). Accordingly, due process requires that noncriminal detention of this
duration satisfy no less than a clear and convincing evidence standard of proof.
Indeed, the government’s asserted security interests have only grown weaker
since Ali’s initial apprehension and detention. At the same time, nearly seventeen
years into his detention—already a term of imprisonment far greater than the average federal sentence for a felony conviction—it is Ali who now faces an intolerable burden. Although his liberty interest may be balanced with national security
considerations, those national security considerations have become weaker, and his
interest has become stronger, as the years of indefinite detention have dragged on.
See Rasul, 542 U.S. at 488 (Kennedy, J., concurring) (“as the period of detention

26

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 40 of 50

stretches from months to years, the case for continued detention to meet military
exigencies becomes weaker.”). Due process cannot tolerate imprisonment without
end on such thinly-based proof. Indeed, the balancing test of Mathews v. Eldridge,
424 U.S. 319 (1976), as adopted by the Supreme Court in Boumediene and by the
plurality opinion in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), requires consideration of “the risk of an erroneous deprivation of [a liberty interest] and the probable
value, if any, of additional or substitute procedural safeguards.” Boumediene, 553
U.S. at 781 (quoting Mathews v. Eldridge, 424 U.S. at 335); Hamdi, 542 U.S. at
529.
Likewise, the thin procedural protections that had been in place when this
Court validated the legality of Ali’s detention (and many others) years ago are insufficient to provide due process for continuing—and potentially lifelong—
detention. See, e.g., Latif v. Obama, 666 F.3d 746, 755 (D.C. Cir. 2011) (affording
“presumption of regularity” to government’s evidence); Al-Adahi v. Obama, 613
F.3d 1102, 1105-06 (D.C. Cir. 2010) (accepting the “conditional probability” that
otherwise unreliable evidence might be reliable if assessed in light of other, often
itself unreliable evidence); Al-Bihani v. Obama, 590 F.3d. 866, 879 (D.C. Cir.
2010) (“hearsay is always admissible” in these cases); id. at 873 n.2 (visiting Al
Qaeda affiliated guesthouses “overwhelmingly, if not definitively” justifies detention).

27

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 41 of 50

This case illustrates the dangers of uncritically accepting the accuracy of an
accumulation of hearsay interrogation records without the corresponding information needed to test their reliability. The 2013 panel opinion affirming denial of
the writ relied on the guesthouse stay as well as six “additional facts” from the factual return’s exhibits, and concluded that they reinforced each other’s veracity in
reaching the conclusion that the government had met its preponderance threshold.
Ali, 736 F.3d at 546. But accepting these “additional facts” as accurately established by hearsay exhibits to the factual return “leaves unacknowledged ... the central problem with [circuit precedent requiring such records be accorded a presumption of regularity]: it requires courts to presume the accuracy, albeit not the truth,
of documents ‘produced in the fog of war by a clandestine method that we know
almost nothing about’—just as they presume the accuracy of, say, ordinary ‘tax
receipts’—and thus unjustifiably shifts the burden of proof to the detainee.” Order,
Qassim v. Trump, No. 18-5148, 2018 WL 3905809, at *2 (D.C. Cir. Aug. 14,
2018) (Doc. # 1745386) (Tatel, J., concurring in denial of petition for initial hearing en banc) (quoting Latif v. Obama, 677 F.3d 1175, 1208 (D.C. Cir. 2011)
(Tatel, J., dissenting)).
As Judge Tatel summarized it, the procedural rules accepted by the court
years ago have “call[ed] the game in the government’s favor” and denied detainees
the “‘meaningful opportunity’ to contest the lawfulness of [their] detention guaran-

28

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 42 of 50

teed by Boumediene.” Latif, 666 F.3d at 770, 779 (Tatel, J., dissenting). But these
rules were accepted years ago when the detentions they justified appeared unlikely
to span a generation even if the conflict did. Given that the “grave consequences of
inaccuracy” in accepting such procedures—continued deprivations of liberty—will
soon stretch into their second decade, now is “the appropriate time [for the courts
to] reconsider whether these documents merit the presumption that Latif affords
them.” Qassim, 2018 WL 3905809, at *3 (Tatel, J., concurring in denial of petition
for initial hearing en banc).
In addition, due process should prevent perpetual non-criminal detention
based on a detention standard focused solely on past conduct or association, rather
than one grounded in present conditions that connect continuing detention to its
ostensible purpose of allaying a specific and articulable danger posed by release.
See Salerno, 481 U.S. at 750-51 (detention under carefully limited circumstances,
including proof by clear and convincing evidence that a person presents an “identified and articulable threat” and “no conditions of release can reasonably assure”
public safety, satisfies due process); Hendricks, 521 U.S. at 358 (requiring proof of
past violent conduct coupled with an additional present condition to justify indefinite commitment); Foucha, 504 U.S. at 77 (“Even if the initial commitment was
permissible, ‘it could not constitutionally continue after that basis no longer existed.’” (citations omitted)). Ali’s potential lifetime detention follows solely from

29

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 43 of 50

seventeen-year-old associations, alleged only with the support of double- and triple-hearsay, that in turn allowed this Court to “draw[] inferences from circumstantial evidence” and conclude that Ali was “part of” a now-defunct force “associated” in some manner with one of the actual named targets of the AUMF. See Ali,
736 F.3d at 546; Ali, 741 F. Supp. 2d at 26 (petitioner’s presence at guesthouse for
two weeks is “enough, alone, to find he was more likely than not” a member of Al
Qaeda and thus detainable). The executive cannot be permitted to imprison individuals perpetually based on evidence of the kind and quality relied on previously
in this case. Due process compels a more robust judicial intervention—particularly
after seventeen years of detention, as the deprivation of liberty grows ever greater
and the analogy to traditional armed conflicts weakens. 20

20

If the Court determines that remand is required, the district court should be
required to revisit and refine the legal basis and procedures for Mr. Ali’s detention—including whether there is clear and convincing evidence that he is, under
current circumstances, likely to “return to the battlefield,” and thus that his detention continues to serve its only lawful purpose. See Hamdi, 542 U.S. at 517; id. at
522 n.1 (“the permissible bounds of the category [of individuals who may be lawfully detained] will be defined by the lower courts as subsequent cases are presented to them”). Only then, consistent with the protections against limitless noncriminal detention, could due process be satisfied. See Boumediene, 553 U.S. at
781 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (due process requires
consideration of “the risk of an erroneous deprivation of [a liberty interest] and the
probable value, if any, of additional or substitute procedural safeguards”)).

30

 USCA Case #18-5297

IV.

Document #1788035

Filed: 05/15/2019

Page 44 of 50

The Court Should Apply Principles of Constitutional Avoidance and
Construe the AUMF Narrowly to Limit Continuing Detention Authority
at Guantánamo
The only positive-law authority under which the executive branch claims it

can continue to detain Mr. Ali is the Authorization for Use of Military Force
(“AUMF”), Pub. L. 107-40, § 2(a), 115 Stat. 224, 224 (2001). But the AUMF does
not include a clear statement authorizing indefinite detention; indeed, it says nothing at all about detention. The AUMF only authorizes the use of:
all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future
acts of international terrorism against the United States by such nations, organizations or persons.
AUMF § 2(a). The Supreme Court has inferred detention authority from the authorization of “necessary and appropriate” force, but only in the “narrow circumstances” where necessary to prevent return to the battlefield consistent with longstanding law-of-war principles. Hamdi, 542 U.S. at 520. As noted above, the Court
has also stated that indefinite or perpetual detention is not permitted. Id. at 521; see
also id. at 536 (“[A] state of war is not a blank check for the President.”). Mr. Ali
now endures an increasing likelihood of life imprisonment without charge because
of his “principal sin” of staying at a guesthouse for about 18 days nearly two decades ago. Ali, 736 F.3d at 553 (Edwards, J., concurring). In light of the serious
constitutional issues that would be posed by such indefinite non-criminal detention,
31

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 45 of 50

this Court should apply principles of constitutional avoidance and hold that the
AUMF, which authorizes only “necessary and appropriate force,” limits the government’s continuing detention authority at Guantánamo in a manner that avoids
the substantive and procedural due process issues. See Ashwander v. Tennessee,
297 U.S. 288 (1936).
The Supreme Court took precisely that approach in addressing limits on executive detention of non-removable and non-admitted non-citizens. See Zadvydas,
533 U.S. at 689-90 (construing statute authorizing detention of admitted aliens to
contain reasonable time limitation in order to avoid serious constitutional concerns
raised by indefinite detention); Clark v. Martinez, 543 U.S. 371, 380-81 (2005)
(construing statute to limit detention of aliens not formally admitted to the United
States to avoid constitutional issues); see also INS v. St. Cyr, 533 U.S. 289, 299300 (2001) (applying habeas statute and stating that “if an otherwise acceptable
construction of a statute would raise serious constitutional problems, and where an
alternative interpretation of the statute is ‘fairly possible,’ we are obligated to construe the statute to avoid such problems”) (citation omitted). Any court adopting
this approach would be well within its jurisdiction, and would be fairly construing
the language of the statute to avoid otherwise serious constitutional concerns. See
Skilling v. United States, 561 U.S. 358, 411 n.44 (2010); Hussain v. Obama, 134 S.
Ct. 1621 (2014) (statement of Justice Breyer respecting denial of certiorari) (Su-

32

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 46 of 50

preme Court has not “considered whether, assuming detention on these bases is
permissible, either the AUMF or the Constitution limits the duration of detention”).
As Justice Souter explained in his opinion concurring in the Hamdi judgment, when a court is asked to infer detention authority from a wartime resolution
such as the AUMF that grants implied powers to the Executive, it must assume that
Congress intended to place no greater restraint on liberty than was unmistakably
indicated by the language it used.
“In interpreting a wartime measure we must assume that [its] purpose
was to allow for the greatest possible accommodation between ... liberties and the exigencies of war. We must assume, when asked to find
implied powers in a grant of legislative or executive authority, that the
law makers intended to place no greater restraint on the citizen than
was clearly and unmistakably indicated by the language they used.”
542 U.S. at 544 (quoting Ex Parte Endo, 323 U.S. 283, 300 (1944)). The AUMF
plainly does not include a clear statement authorizing indefinite detention; as noted
above, it says nothing about detention. If the right to use force under the AUMF is
qualified and limited, so too must the inferred right to detain under it be similarly
qualified and limited.
Because the district court erroneously concluded that the application of the
Due Process Clause was foreclosed by this Court’s precedent, it never considered
whether constitutional avoidance principles should be applied. This Court could
either apply avoidance principles, hold that the AUMF limits continuing detention

33

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 47 of 50

authority at Guantánamo, and order Mr. Ali’s release, or instruct the district court
to consider that avoidance argument on remand.
CONCLUSION
Mr. Ali has been held for more than 17 years without charge. Absent judicial
intervention and the application of a due process limit to his continuing indefinite
detention, he is increasingly likely to die at Guantánamo, based on a burden of
proof no more rigorous than what is required to prove negligence, which in turn
has been met with evidence of essentially unknown provenance and untested reliability. Our Constitution demands better of us.
The Court should reverse the district court decision, conclude that the Due
Process Clause applies at Guantánamo, and (1) order Appellant’s release as a matter of law on the ground that the duration of his continuing detention violates substantive due process, or (2) remand to the district court to determine in the first instance whether Appellant’s continuing detention violates substantive and
procedural due process. If the Court orders remand, it should, consistent with Supreme Court precedent governing noncriminal detention, do so with instructions to
the district court to apply a clear and convincing evidence standard; to scrutinize
more closely the use of hearsay evidence offered by the government in support of
Mr. Ali’s continuing detention; to mandate that the government articulate a legitimate and particularized purpose for Mr. Ali’s continuing noncriminal detention;

34

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 48 of 50

and to consider whether application of due process requires additional procedural
protections. Either this Court or the district court on remand should also consider
whether these issues may be avoided by a limiting reading of the scope of detention authorized by the AUMF.
Dated:

New York, New York
May 15, 2019
Respectfully submitted,
/s/Shayana Kadidal
J. Wells Dixon [Bar No. 51138]
Shayana Kadidal [Bar No. 49512]
Pardiss Kebriaei [Bar No. 51395]
Baher Azmy [Bar No. 50479]
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th Floor
New York, New York 10012
Tel: (212) 614-6438
Fax: (212) 614-6451
wdixon@ccrjustice.org
kadidal@ccrjustice.org
pkebriaei@ccrjustice.org
bazmy@ccrjustice.org
H. Candace Gorman [Bar No. 50901]
LAW OFFICE OF H. CANDACE GORMAN
220 S. Halsted, Suite 200
Chicago, Illinois 60661
Tel: (312) 427-2313
hcgorman@igc.org
Attorneys for Petitioner-Appellant

35

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 49 of 50

CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in compliance with Rule 32(a)(7) of the
Federal Rules of Appellate Procedure. The brief contains 8,787 words, and was
prepared in 14-point Times New Roman font using Microsoft Word 2010.

/s/Shayana Kadidal
Shayana Kadidal
Attorney for Petitioner-Appellant

36

 USCA Case #18-5297

Document #1788035

Filed: 05/15/2019

Page 50 of 50

CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the District of Columbia Circuit
by using the appellate CM/ECF system on May 15, 2019.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.

/s/Shayana Kadidal
Shayana Kadidal
Attorney for Petitioner-Appellant

37