The precedent Judge Randolph cited for this sweeping proposition was the old post-World War II Eisentrager case, the very case that the Supreme Court had rejected in 2004 when it treated Guantánamo as a functional part of the United States that came within the jurisdiction of the federal courts. I’ll be polite: to accept Judge Randolph’s opinion as an accurate account of the state of the law is to ignore the entire trajectory of the Supreme Court’s Guantánamo cases.
That brings me to the most recent case, Al Hela. Judge Randolph got lucky when the panel was designated. Instead of serving with two of the appeals court’s more liberal members, Judge Millett and Judge Judith Rogers, as in the Ali case, he was joined by two conservative colleagues, Judge Rao and Judge Thomas Griffith. All three agreed that the habeas petition filed by Abdulsalam Al Hela, a Yemeni tribal sheikh held at Guantánamo since 2004, was deficient for a variety of standard reasons.
Judge Griffith, who retired from the appeals court last week, argued in a separate opinion that there was no need to venture further into constitutional territory. But in her controlling opinion, Judge Rao said it was time to decide the due process issue because Mr. Al Hela claimed in his habeas petition that the government’s reliance on anonymous hearsay in the intelligence reports it used to justify his continued detention violated his right to due process.
But no such right applied to him, Judge Rao wrote, concluding that “we reject Al Hela’s due process claims on the threshold determination that, as an alien detained outside the sovereign territory of the United States, he may not invoke the protection of the Due Process Clause.” A footnote to her opinion contained the astounding assertion that “our court has adhered to Eisentrager’s holding that the Fifth Amendment’s Due Process Clause does not apply outside the territorial United States and therefore cannot be invoked by detainees at Guantánamo Bay.”
Judge Griffith, in his separate opinion, properly objected: “But we have never made such a far-reaching statement about the Clause’s extraterritorial application.” The objection was fruitless. Judge Randolph had done his work and had the last word, at once cryptic and completely clear in a concurring opinion consisting of a single sentence: “I agree with the court’s decision not only for the reasons expressed in its opinion, but also for the additional reasons stated in my opinion concurring in the judgment in Ali v. Trump.”
What might happen next is anyone’s guess. It’s not out of the question for the full D.C. Circuit to reconsider the panel decision, as it did last week when it overturned a panel opinion in the Michael Flynn case, restoring the district judge’s discretion to decide whether to yield to the Trump administration’s demand to dismiss the prosecution of the president’s former national security adviser. It’s conceivable the Al Hela case could end up at the Supreme Court. I have trouble conjuring five votes there even to sustain the Boumediene precedent, let alone to carry it into due process territory.
While I’ve never been to Guantánamo, I have revisited it regularly during my years writing this column. Why care about Guantánamo at this late date? As the 9/11 anniversaries have accumulated and the shock of that day has been absorbed into our national narrative, I’ve come to think of Guantánamo, born in fear and sustained through political cynicism and public indifference, as a mirror of ourselves during these opening decades of the current century, trapped no less than our 40 remaining “forever” prisoners with no obvious end to their imprisonment. There have been a few redemptive moments in this story, and the Boumediene decision was one of them. If it’s now to be buried without even a decent funeral, we should at least take note.
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