Qassim v. Trump

• Decision Date: 21 June 2019
• Docket Number: No. 18-5148,18-5148
• Citation: 927 F.3d 522
• 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

927 F.3d 522

Khalid Ahmed QASSIM, Appellant

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

No. 18-5148

United States Court of Appeals, District of Columbia Circuit.

Argued January 15, 2019

Decided June 21, 2019

Thomas B. Wilner, Washington, DC, argued the cause for appellant. With him on the briefs were Neil H. Koslowe, Kimberly Ferguson, Washington, DC, and Anthony G. Amsterdam.

Joseph Margulies, Minneapolis, MN, was on the brief for amicus curiae Commonwealth Lawyers Association in support of appellant.

Brad Hinshelwood, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Sharon Swingle, Washington, DC and Michael Shih.

Before: Millett and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge.

Millett, Circuit Judge:

Khalid Ahmed Qassim, who has been held at the Guantanamo Bay Naval Base in Cuba for seventeen years, appeals the district court's denial of his petition for a writ of habeas corpus. On appeal, Qassim presses a due process challenge to the government's use of undisclosed classified information as a basis for his detention. In denying Qassim's motion in limine concerning the use of undisclosed information, the district court ruled that, as an alien Guantanamo detainee, Qassim has no rights under the Fifth Amendment's Due Process Clause. In so ruling, the district court relied on this court's 2009 decision in Kiyemba v. Obama , 555 F.3d 1022 (D.C. Cir. 2009), vacated , 559 U.S. 131, 130 S.Ct. 1235, 175 L.Ed.2d 1070, and judgment reinstated as amended , 605 F.3d 1046 (D.C. Cir. 2010).

The district court's ruling that binding circuit precedent denies Qassim all rights to due process was in error. Kiyemba did not so hold. That decision ruled only that the Due Process Clause does not invest detainees who have already been granted habeas corpus with a substantive due process right to be released into the United States. That decision did not decide, or have any occasion to address, what constitutional procedural protections apply to the litigation of a detainee's habeas corpus petition in the first instance. Nor has any other decision of this circuit adopted a categorical prohibition on affording detainees seeking habeas relief any constitutional procedural protections. The governing law, in fact, is that Qassim and other alien detainees must be afforded a habeas process that ensures "meaningful review" of their detention. Boumediene v. Bush , 553 U.S. 723, 783, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008).

Beyond that, resolution of Qassim's specific due process challenge to the government's withholding of classified information would be premature precisely because the parties and the district court operated under a faulty understanding of circuit precedent. We instead are constrained to remand the case for further proceedings to be conducted within the correct legal framework and to develop the needed factual record. Pullman-Standard v. Swint , 456 U.S. 273, 291, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) ("When an appellate court discerns that a district court has failed to make a finding because of an erroneous view of the law, the usual rule is that there should be a remand for further proceedings to permit the trial court to make the missing findings."). As it now stands, the record is insufficient for this court to resolve Qassim's constitutional challenge. Cf. Reno v. Catholic Soc. Servs., Inc. , 509 U.S. 43, 66, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993). We leave it for the district court to address on remand both Qassim's claimed constitutional right to access the classified information in the government's hands and the constitutional source (if any) of such a right. In so doing, the district court can also address the government's belated concession, made for the first time on appeal, that some of the sought-after information may properly be disclosed in this case.

I

A

In response to the terrorist attacks against the United States perpetrated on September 11, 2001, Congress enacted the Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001). That law authorizes 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." Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 244. That authority includes detaining "those who are part of forces associated with Al Qaeda or the Taliban[.]" Al-Madhwani v. Obama , 642 F.3d 1071, 1074 (D.C. Cir. 2011) (quoting Al–Bihani v. Obama , 590 F.3d 866, 872 (D.C. Cir. 2010) ).

Petitioner Qassim is a Yemeni citizen. In 1999, he was recruited by a known al Qaeda and Taliban recruiter to travel from Yemen to Afghanistan for military-style training. He traveled to Afghanistan and twice received training at the al Qaeda-run Al-Farouq training camp.¹

In October 2001, when the United States began bombing Afghanistan in response to the September 11th attacks, Qassim was on the front lines with the Taliban near Bagram, Afghanistan. After the front lines broke, Qassim retreated to an al Qaeda-affiliated guest house and then to the Tora Bora region, a cave complex in the mountains of Eastern Afghanistan. Qassim spent twenty days in Tora Bora and was present for a nighttime visit from Osama bin Laden.

Qassim was arrested by Afghan police, who handed him over to United States authorities in December 2001. Qassim's name was later found during raids of al Qaeda safehouses and an al Qaeda residence in Pakistan. On May 1, 2002, the United States moved Qassim to its detention facility at Guantanamo Bay, where he has remained.

B

Shortly after the Supreme Court held in Rasul v. Bush , 542 U.S. 466, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004), that the federal habeas statute, 28 U.S.C. § 2241 (2004), applies to foreign detainees held at Guantanamo Bay, id. at 481, 124 S.Ct. 2686, Qassim filed a petition for habeas corpus in the United States District Court for the District of Columbia.

Qassim's habeas case has a long and winding history. While Qassim's habeas petition was pending in district court, Congress enacted the Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739. That statute purported to deprive the federal courts of jurisdiction over habeas cases brought by aliens detained at Guantanamo Bay. See Pub. L. No. 109-148 § 1005(e)(1), 119 Stat. 2739, 2742. A year later, the Supreme Court held that the Detainee Treatment Act did not deprive federal courts of jurisdiction over habeas petitions that, like Qassim's, were already pending at the time the law was enacted. See Hamdan v. Rumsfeld , 548 U.S. 557, 575–578, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006).

Congress then passed the Military Commissions Act of 2006, which purported to strip the federal courts of jurisdiction over pending habeas cases from detainees at Guantanamo Bay. Pub. L. No. 109-366, 120 Stat. 2600. In Boumediene v. Bush , the Supreme Court invalidated a section of the Military Commissions Act as an unconstitutional suspension of the writ of habeas corpus, and held that the privilege of habeas corpus entitles detainees to a "meaningful opportunity" for review, 553 U.S. at 771, 779, 783, 128 S.Ct. 2229.

In the wake of Boumediene , Qassim and the government agreed to indefinitely stay his case while the standards and procedures for litigating Guantanamo habeas cases were worked out in other pending cases.

And so Qassim waited. And waited. For eight years, his case remained in limbo. Finally, in February 2017, Qassim attempted to spur action on his case by moving for the entry of final judgment without factual findings. In Qassim's view, this court's precedent preordained the denial of his habeas petition, so he asked the district court to enter judgment in an effort to obtain en banc or Supreme Court review overturning that precedent.

The district court denied the motion, reasoning that factual findings needed to be made before final judgment could be entered and the case could proceed to appellate review. Recognizing Qassim's desire to proceed expeditiously to appeal, the district court advised the parties to propose a procedure that would allow for a prompt disposition of the case on the basis of a sufficient factual record.

Qassim then proposed to the government pre-trial and trial procedures that, among other things, would allow for the disclosure of classified materials to his counsel and for the sharing with Qassim of an "adequate substitute" for such materials. Supp. App'x 38. Under Qassim's plan, the government would be unable to rely on any information that had not been disclosed to justify Qassim's detention.

The government rejected Qassim's proposal, suggesting instead that the parties proceed by way of a stipulated factual record. Under the government's framework, the parties' stipulations would allow the district court to "make findings of fact and conclusions of law," while still preserving Qassim's right to appeal certain aspects of a case management order and a protective order that the district court issued in 2008 to establish procedures for the adjudication of Guantanamo Bay habeas corpus petitions. Supp. App'x 64–65.

Qassim acquiesced to the government's proposal on the condition that his right to assert a due process claim would be preserved for appeal. Public J.A. 27–28; see also Supp. App'x 48 (email explaining government's view that the parties should adopt a procedure that preserved the issues Qassim wished to challenge on appeal without having to relitigate in district court pertinent circuit decisions and the procedures governing Guantanamo habeas cases).²

In the face of a series of district court rulings holding that the Kiyemba ruling categorically denied Guantanamo Bay detainees the protections of the Due Process Clause, Qassim filed a motion in limine .³ In that motion, he asked the district court to resolve his habeas petition "without regard to the premise...