959 F.3d 364
D.C. Cir.2020Background
- Abdul Razak Ali, an Algerian national, was captured in March 2002 in a Faisalabad, Pakistan guesthouse associated with Abu Zubaydah; the site contained terrorist-related materials and an English-language training program.
- Ali was transferred to Guantanamo Bay in June 2002 and has remained detained there since.
- He filed habeas petitions challenging his enemy-combatant designation; the district court denied relief and the D.C. Circuit previously affirmed that he was part of an associated force of al Qaeda/Taliban.
- In 2018 Ali renewed habeas claims arguing the Fifth Amendment’s Due Process Clause applies fully at Guantanamo and that his ongoing detention violates substantive and procedural due process (e.g., seeking clear-and-convincing standard, exclusion of hearsay, rebut presumption of regularity).
- The district court rejected those claims (and found AUMF-authorized hostilities continue); Ali appealed and sought en banc review, which was denied; the D.C. Circuit here affirms the district court.
- The Periodic Review Board repeatedly reviewed Ali’s case and consistently recommended continued detention based on an assessed ongoing security threat.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fifth Amendment’s Due Process Clause applies categorically in full to Guantanamo detainees | Ali: Fifth Amendment procedural and substantive protections apply wholesale to all Guantanamo detainees | Government: Boumediene and circuit precedent control; scope of protections must be assessed functionally, not categorically | Rejected. Court holds Boumediene requires a functional, issue-by-issue analysis; a wholesale application fails and is foreclosed by circuit precedent |
| Whether Ali’s extended detention violates substantive due process ("shock the conscience") | Ali: 17+ years detention, alleged blanket punitive policy, and limited initial conduct (18-day guesthouse stay) render continued detention unconstitutional | Government: Detention serves law-of-war purpose during ongoing hostilities; periodic reviews find continued threat; no conscience-shocking conduct shown | Rejected. Court applies law-of-war detention principles; continued hostilities and PRB findings preclude substantive-due-process relief |
| What procedural protections are required (burden/standard, hearsay, presumption of regularity) | Ali: Government must show continued danger by clear-and-convincing evidence; exclude hearsay; no presumption of regularity for government evidence | Government: Preponderance standard, admissibility of hearsay, and recognized presumptions are consistent with circuit precedent and Boumediene’s functional test | Rejected. Circuit precedent permits preponderance standard, use of hearsay, and recognized presumptions; Ali cannot relitigate settled circuit law |
| Whether AUMF authorizes continued detention for duration of hostilities | Ali: Continued detention exceeds AUMF’s scope given prolonged/conflicted nature of hostilities | Government: AUMF and later NDAA affirm detention authority until end of hostilities; hostilities remain ongoing | Held for Government. Court finds AUMF/NDAA support detention for duration of hostilities and hostilities continue |
Key Cases Cited
- Boumediene v. Bush, 553 U.S. 723 (2008) (Suspension Clause requires procedures necessary for meaningful habeas review of Guantanamo detainees)
- Johnson v. Eisentrager, 339 U.S. 763 (1950) (Fifth Amendment due process does not apply to nonresident enemy aliens held abroad)
- United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) (Fifth Amendment protections do not extend to aliens outside U.S. territory)
- Zadvydas v. Davis, 533 U.S. 678 (2001) (certain constitutional protections available inside U.S. are unavailable to aliens outside U.S. borders)
- Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) (Due Process Clause not extended to aliens without presence/property in U.S.; substantive-due-process holdings)
- Qassim v. Trump, 927 F.3d 522 (D.C. Cir. 2019) (panel treating which Fifth Amendment protections apply as an open, issue-by-issue question under Boumediene)
- Al-Bihani v. Obama, 590 F.3d 866 (D.C. Cir. 2010) (preponderance standard and admissibility of hearsay in AUMF detention context)
- Awad v. Obama, 608 F.3d 1 (D.C. Cir. 2010) (preponderance standard satisfies constitutional requirements in AUMF habeas challenges)
- Uthman v. Obama, 637 F.3d 400 (D.C. Cir. 2011) (AUMF detention may continue for duration of hostilities)
- Al-Madhwani v. Obama, 642 F.3d 1071 (D.C. Cir. 2011) (stating Guantanamo detainees possess no constitutional due process rights, while addressing harmless-error framing)
- Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality recognizing detention of enemy combatants and need for procedures to challenge that status)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (balancing test for procedural due process claims)