Qassim v. Trump
Decision Date | 17 September 2019 |
Docket Number | No. 18-5148,18-5148 |
Citation | 938 F.3d 375 (Mem) |
Parties | Khalid Ahmed QASSIM, Appellant v. Donald J. TRUMP, President of the United States, et al., Appellees |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Per Curiam Following the issuance of the opinion in this case, a member of the court suggested sua sponte that the case be reheard en banc, see D.C. Circuit Handbook of Practice and Internal Procedures 59 (2018), and a vote was called. Thereafter, a majority of the judges eligible to participate did not vote to rehear this case. See Fed. R. App. P. 35(a). Upon consideration of the foregoing, it is
ORDERED that the sua sponte suggestion for rehearing en banc be denied.
With the greatest respect for our two colleagues who have dissented from the denial of rehearing en banc, we note that the court’s opinion explains in detail its consistency with circuit and Supreme Court precedent, and principles of stare decisis . Furthermore, it is telling that the United States Government has not filed a petition for rehearing en banc in this case voicing any of the concerns that the dissenting opinion raises.
The panel decision declares that whether the Due Process Clause of the Fifth Amendment applies to detainees at Guantanamo Bay is an open question. Qassim v. Trump , 927 F.3d 522, 524 (D.C. Cir. 2019). It is not. The United States Supreme Court has "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." United States v. Verdugo-Urquidez , 494 U.S. 259, 269, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (citing Johnson v. Eisentrager , 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) ). Because "[t]he Guantanamo Naval Base is not part of the sovereign territory of the United States," we recognized in Kiyemba v. Obama that Guantanamo Bay detainees are not protected by the Due Process Clause of the Fifth Amendment. 555 F.3d 1022, 1026 & n.9 (D.C. Cir. 2009) (), vacated by 559 U.S. 131, 130 S.Ct. 1235, 175 L.Ed.2d 1070 (2010), and reinstated as amended by 605 F.3d 1046 (D.C. Cir. 2010). Qassim thus marks a low point for this Circuit—not because it is incorrectly decided (although it undoubtedly is)—but because going forward no precedent, no matter how clear and on point, is settled under the doctrine of stare decisis. According to this new Circuit law, the way to deal with Supreme Court precedent that the panel finds uncomfortable is to disregard it, and the way to deal with like Circuit precedent is to treat its holding as dictum. Accordingly, I dissent from the denial of rehearing en banc.
Khalid Qassim is detained at the Guantanamo Bay Naval Base and claims that "the government’s use of undisclosed classified information as a basis for his detention" violates his right to due process under the Fifth Amendment to the United States Constitution.
Qassim , 927 F.3d at 524. The district court held that under precedent, Guantanamo Bay detainees have no such right.1 Id. at 527 (). The panel reversed, stating that neither Kiyemba v. Obama nor "any other decision of this circuit adopted a categorical prohibition on affording detainees seeking habeas relief any constitutional procedural protections." Id. at 524.
En banc review is appropriate if a panel decision creates an irreconcilable conflict with Supreme Court or Circuit precedent. Fed. R. App. P. 35(a)(1) (). Qassim does both.
Qassim ignores controlling Supreme Court precedent. In Johnson v. Eisentrager , the Supreme Court held—in the clearest possible terms—that the Fifth Amendment does not apply to aliens outside the territory of the United States. 339 U.S. at 784–85, 70 S.Ct. 936 ( . That indeed is exactly how two other Supreme Court decisions read Eisentrager . In United States v. Verdugo-Urquidez , the Court described Eisentrager ’s "rejection of extraterritorial application of the Fifth Amendment" as "emphatic." 494 U.S. at 269, 110 S.Ct. 1056. And Zadvydas v. Davis declared:
It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United States v. Verdugo–Urquidez, 494 U.S. 259, 269 [110 S.Ct. 1056, 108 L.Ed.2d 222] (1990) ( ); Johnson v. Eisentrager, 339 U.S. 763, 784 [70 S.Ct. 936, 94 L.Ed. 1255] (1950) (same ).
533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (emphases added).
These cases remain good law. The Supreme Court has never overruled the Fifth Amendment Eisentrager and has never disagreed with Verdugo-Urquidez or Zadvydas . The Qassim panel was therefore obligated to follow these decisions, as the Kiyemba court did. Rodriguez de Quijas v. Shearson/Am. Exp., Inc. , 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (). How does Qassim deal with this Supreme Court authority? It says nothing substantive whatsoever.
Qassim also turns its back on Circuit precedent. In Kiyemba v. Obama , we reviewed a district court order requiring the government to release Guantanamo Bay detainees into the United States. See 555 F.3d at 1023. We determined that "[d]ecisions of the Supreme Court and of this court ... hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States." Id. at 1026. And Kiyemba was far from the first time our court so held. See, e.g. , Jifry v. FAA , 370 F.3d 1174, 1182 (D.C. Cir. 2004) ; 32 County Sovereignty Comm. v. Dep’t of State , 292 F.3d 797, 799 (D.C. Cir. 2002) ; Harbury v. Deutch , 233 F.3d 596, 603–04 (D.C. Cir. 2000), rev’d on other grounds by 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) ; People’s Mojahedin Org. of Iran v. U.S. Dep’t of State , 182 F.3d 17, 22 (D.C. Cir. 1999) ; Pauling v. McElroy , 278 F.2d 252, 254 n.3 (D.C. Cir. 1960) (per curiam). "The Guantanamo Naval Base is not part of the sovereign territory of the United States." Kiyemba , 555 F.3d at 1026 n.9. For that reason, Kiyemba held that the Fifth Amendment could not provide legal authority for the district court’s release order. Id. at 1026.
How does Qassim deal with this Circuit precedent? It claims that Kiyemba But see Kiyemba , 555 F.3d at 1038 (Rogers, J., concurring in the judgment) . Id. at 1026 ) . due process arguments—whether characterized as substantive or procedural—had to be rejected. Id. at 1026–27. The Qassim panel may wish that Kiyemba ’s due process holding was narrower but "[a] court’s stated and, on its view, necessary basis for deciding does not become dictum because a critic would have decided on another basis." Kalka v. Hawk , 215 F.3d 90, 96 (D.C. Cir. 2000) ( ).
Qassim also suggests that Kiyemba could not have denied Guantanamo Bay detainees procedural due process rights in light of the Supreme Court’s decision in Boumediene v. Bush , 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), a case extending the protections of the Suspension Clause of the United States Constitution to the Guantanamo Bay Naval Base. See Qassim , 927 F.3d at 528–29. But our decision in Rasul v. Myers , 563 F.3d 527 (D.C. Cir. 2009) (per curiam), already rejected this view. There we said Boumediene "stressed that its decision ‘does not...
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