Ali v. Trump

• Decision Date: 15 May 2020
• Docket Number: No. 18-5297,18-5297
• Citation: 959 F.3d 364
• Parties: Abdul Razak ALI, Detainee, Appellant v. Donald J. TRUMP, President of the United States, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

959 F.3d 364

Abdul Razak ALI, Detainee, Appellant

v.Donald J. TRUMP, President of the United States, et al., Appellees

No. 18-5297

United States Court of Appeals, District of Columbia Circuit.

Argued December 11, 2019

Decided May 15, 2020

Rehearing En Banc Denied July 29, 2020

Shayana D. Kadidal argued the cause for appellant. With him on the briefs were J. Wells Dixon, Pardiss Kebriaei, Baher Azmy, and H. Candace Gorman.

Anil Vassanji was on the brief for amicus curiae Professor Eric Janus in support of petitioner-appellant.

Thomas Anthony Durkin and George M. Clarke III were on the brief for amici curiae Tofiq Nasser Awad Al Bihani (ISN 893) and Abdul Latif Nasser (ISN 244) supporting appellant.

Brian E. Foster, Washington, DC, was on the brief for amicus curiae Human Rights First in support of petitioner-appellant.

Sharon Swingle, Attorney, Washington, DC, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Hashim M. Mooppan, Deputy Assistant Attorney General, and Michael Shih, Attorney. Sonia M. Carson, Attorney, entered an appearance.

Before: Rogers and Millett, Circuit Judges, and Randolph, Senior Circuit Judge.

Opinion concurring in the judgment filed by Senior Circuit Judge Randolph.

Millett, Circuit Judge:

The United States has detained appellant Abdul Razak Ali, an Algerian national, at the Guantanamo Bay Naval Base in Cuba since June 2002. In this appeal, Ali asks the court to hold that the Fifth Amendment's Due Process Clause categorically applies in full to detainees at Guantanamo Bay, and that his ongoing detention violates both the procedural and substantive aspects of the Due Process Clause. Those broad arguments are foreclosed by circuit precedent. To be sure, whether and which particular aspects of the Due Process Clause apply to detainees at Guantanamo Bay largely remain open questions in this circuit. So too does the question of what procedural protections the Suspension Clause requires. But Ali has eschewed any such calibrated or as-applied constitutional arguments in this case. For those reasons, the district court's denial of Ali's petition for a writ of habeas corpus is affirmed.

I

A

Shortly after the September 11, 2001 terrorist attacks, Congress passed the Authorization for Use of Military Force ("AUMF"), Pub. L. No. 107-40, 115 Stat. 224 (2001). That law empowers the President "to use 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[.]" Id. § 2(a), 115 Stat. at 224. This includes the detention of "those who are part of forces associated with Al Qaeda or the Taliban[.]" Al-Madhwani v. Obama , 642 F.3d 1071, 1073–1074 (D.C. Cir. 2011) (quoting Al-Bihani v. Obama , 590 F.3d 866, 872 (D.C. Cir. 2010) ); see also Hamdi v. Rumsfeld , 542 U.S. 507, 516, 518–519, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004) (plurality opinion).

Congress subsequently passed the National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, 125 Stat. 1298 (2011). That Act "affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority for the Armed Forces of the United States to detain covered persons" until "the end of the hostilities authorized by the [AUMF]." Id. § 1021(a), (c)(1), 125 Stat. at 1562. The National Defense Authorization Act defines "covered persons" to include those "who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks," or who were "part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners[.]" Id. § 1021(b), 125 Stat. at 1562.

B

Ali is an Algerian citizen. He was captured by United States and Pakistani forces in March 2002 during a raid of a four-bedroom guesthouse in Faisalabad, Pakistan. Ali v. Obama (Ali II) , 736 F.3d 542, 543 (D.C. Cir. 2013). Ali kept troubling company there. At the time of the raid, he was living with the al Qaeda facilitator Abu Zubaydah and several of Zubaydah's compatriots, including "four former trainers from a terrorist training camp in Afghanistan, multiple experts in explosives, and an individual who had fought alongside the Taliban." Id. The guesthouse also contained "a device typically used to assemble remote bombing devices" and "documents bearing the designation ‘al Qaeda[.]’ " Id.

In June 2002, the United States transferred Ali to the Naval Base at Guantanamo Bay. Ali II , 736 F.3d at 543. A few years later, Ali filed a petition for habeas corpus in the United States District Court for the District of Columbia challenging his designation and detention as an enemy combatant. Ali v. Obama (Ali I) , 741 F. Supp. 2d 19, 21 (D.D.C. 2011). The district court denied the petition. Id. at 27. Applying a preponderance of the evidence standard, the district court concluded that Ali was a member of Zubaydah's forces, which the district court found was an "associated force" of al Qaeda and the Taliban within the meaning of the AUMF. Id. at 25, 27 ; see also Pub. L. No. 107-40, § 2(a), 115 Stat. at 224. The district court further found that Ali's capture in the same guesthouse as Zubaydah, combined with evidence that Ali was taking English lessons through one of Zubaydah's training programs while there, was enough to establish his membership in that force. Ali I , 741 F. Supp. 2d at 25–26. The court also credited government evidence "placing [Ali] with Abu Zubaydah's force in various places in Afghanistan prior to his stay at the Faisalabad guesthouse." Id. at 26. And Ali's membership in Zubaydah's force was "corroborated further by [his] own admission—when he was first interrogated—that he had gone to Afghanistan to fight in the jihad against the U.S. and its Allied forces." Id.

This court affirmed, concluding that Ali's presence in the "terrorist guesthouse" alongside other terrorist combatants strongly supported the district court's finding that he was an enemy combatant. Ali II , 736 F.3d at 545–546. Among other things, Ali's presence in the company of senior leaders of Zubaydah's force, the duration of Ali's stay, his participation in English lessons while there, and the presence of documents and equipment associated with terrorist activity together provided weighty and substantial grounds for finding Ali to be an enemy combatant. Id. at 546.

On January 11, 2018, Ali joined several other Guantanamo detainees in filing renewed habeas petitions arguing that their continued detention violated the Due Process Clause and the AUMF. The district court subsequently denied Ali's habeas petition.

First, the district court held that detainees at Guantanamo Bay are not entitled to the protections of the Due Process Clause. The court also held that, even assuming the Due Process Clause applied, Ali's rights were not violated. The court reasoned that circuit precedent foreclosed Ali's procedural arguments that (1) the government must show by clear and convincing evidence that he remains a threat to national security, (2) government evidence is not entitled to a presumption of regularity, and (3) hearsay evidence should be inadmissible in AUMF detention proceedings. The court also rejected Ali's substantive due process argument that his continuing detention no longer served its ostensible purpose.

Second, the district court rejected Ali's argument that his continuing detention exceeds the scope of the AUMF. The district court read the AUMF to authorize the detention of enemy combatants until the hostilities authorized by that statute cease and found that hostilities against al Qaeda and the Taliban were ongoing.

Ali appealed, seeking initial consideration en banc. This court denied initial en banc review. Ali v. Trump , No. 18-5297, 2019 WL 850757 (D.C. Cir. Feb. 22, 2019).

II

We review the district court's factual determinations for clear error and its ultimate decision to grant or deny habeas relief de novo .

Latif v. Obama , 677 F.3d 1175, 1178 (D.C. Cir. 2012) ; see also Barhoumi v. Obama , 609 F.3d 416, 423 (D.C. Cir. 2010).

A

The district court's decision that the Due Process Clause is categorically inapplicable to detainees at Guantanamo Bay was misplaced. See Qassim v. Trump , 927 F.3d 522, 524 (D.C. Cir. 2019). The Supreme Court's decision in Boumediene v. Bush , 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), unequivocally held that Guantanamo Bay detainees must be afforded those procedures necessary to ensure "meaningful review" of the lawfulness of their detention, id . at 783, 128 S.Ct. 2229. See Qassim , 927 F.3d at 524. In particular, detainees are constitutionally entitled to "those ‘procedural protections’ " that are "necessary (i) to ‘rebut the factual basis for the Government's assertion that [the detainee] is an enemy combatant’; (ii) to give the prisoner ‘a meaningful opportunity to demonstrate that he is being held pursuant to the erroneous application or interpretation of relevant law’; and (iii) to create a record that will support ‘meaningful review’ " by federal courts. Id . at 528–529 (formatting modified) (quoting Boumediene , 553 U.S. at 779, 783, 128 S.Ct. 2229 ).¹

In identifying those constitutional protections for detainees, the Supreme Court pointed both to the Constitution's guarantee of habeas corpus, U.S. CONST. art. I, § 9, cl. 2 (commonly known as the Suspension Clause), and the Due Process Clause. Boumediene , 553 U.S. at 771–792, 128 S.Ct. 2229 ; see Qassim , 927 F.3d at 529.

Circuit precedent has not yet comprehensively resolved which "constitutional procedural protections apply to the adjudication of detainee habeas corpus petitions," and whether those "rights are housed" in the Due Process Clause, the Suspension Clause, or both. Qassim , 927 F.3d at 530.

In this case, Ali has chosen not to...