938 F.3d 375
D.C. Cir.2019Background
- Khalid Qassim, a Guantanamo Bay detainee, challenged the government's use of undisclosed classified information in support of his detention as a violation of the Fifth Amendment Due Process Clause.
- The district court denied relief, relying on D.C. Circuit precedent (notably Kiyemba) that Guantanamo detainees lack Fifth Amendment due process protections because Guantanamo is outside U.S. sovereign territory.
- A three-judge panel in Qassim v. Trump reversed that reading and stated the question whether the Fifth Amendment applies at Guantanamo is open.
- Judge Henderson (joined by Judge Rao) dissented from the denial of rehearing en banc, arguing the panel decision conflicts with controlling Supreme Court and D.C. Circuit precedent and creates an intra‑circuit conflict.
- The dissent contends Johnson v. Eisentrager and subsequent Supreme Court decisions (Verdugo‑Urquidez, Zadvydas) categorically reject extraterritorial application of the Fifth Amendment, while Boumediene was limited to the Suspension Clause and did not disturb that rule.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fifth Amendment Due Process Clause applies to Guantanamo detainees | Qassim: Due process protects against use of undisclosed classified evidence in detention decisions | Government: Precedent bars Fifth Amendment protections for aliens held outside U.S. sovereign territory | Panel: question is open; District Court had held no due process; Dissent: Supreme Court and Circuit precedent require no Fifth Amendment protection at Guantanamo |
| Whether Kiyemba forecloses procedural due process claims by Guantanamo detainees | Qassim: Kiyemba did not adopt a categorical bar on procedural protections | Government: Kiyemba and prior D.C. Circuit holdings treat the Fifth Amendment as inapplicable to aliens outside U.S. territory | Dissent: Kiyemba unambiguously holds detainees at Guantanamo cannot invoke the Due Process Clause; panel misreads it |
| Effect of Boumediene on extraterritorial application of other constitutional provisions | Qassim: Boumediene’s recognition of habeas rights at Guantanamo suggests other protections (procedural due process) may apply | Government: Boumediene expressly confined its holding to the Suspension Clause and did not disturb Eisentrager line | Dissent: Rasul and later D.C. Circuit decisions confirm Boumediene did not extend to the Due Process Clause |
| Whether rehearing en banc was warranted to resolve intra‑circuit conflict | Qassim: panel decision creates new approach and departs from prior panels | Government: later panel rulings control unless overruled by en banc or Supreme Court | Dissent: en banc review was necessary because Qassim conflicts with Supreme Court and settled D.C. Circuit precedent; denial was erroneous |
Key Cases Cited
- Johnson v. Eisentrager, 339 U.S. 763 (rejecting extraterritorial application of the Fifth Amendment)
- United States v. Verdugo-Urquidez, 494 U.S. 259 (describing Eisentrager’s rejection of extraterritorial Fifth Amendment protection as emphatic)
- Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009) (holding Guantanamo detainees cannot invoke the Fifth Amendment Due Process Clause)
- Qassim v. Trump, 927 F.3d 522 (D.C. Cir. 2019) (panel treated applicability of the Fifth Amendment at Guantanamo as an open question)
- Boumediene v. Bush, 553 U.S. 723 (holding Suspension Clause applies at Guantanamo but limiting scope to habeas context)
- Zadvydas v. Davis, 533 U.S. 678 (noting certain constitutional protections do not extend to aliens outside U.S. borders)
- Rasul v. Myers, 563 F.3d 527 (D.C. Cir. 2009) (per curiam) (reading Boumediene as not displacing Eisentrager and Kiyemba regarding due process)
- Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477 (lower courts must follow directly controlling Supreme Court precedent)