A federal appeals court rejected a constitutional challenge brought by lawyers for a Yemeni businessman held at Guantanamo Bay, with the judges ruling that the Constitution’s due process clause is not applicable to foreigners held at the U.S. naval base.
Judge Neomi Rao, appointed by President Trump in 2019, wrote a 47-page opinion on Friday for the three-judge panel of the U.S. Court of Appeals for the District of Columbia, upholding a district court’s 2019 denial of Abdulsalam Ali Abdulrahman al Hela’s habeas petition challenging his detention.
“We affirm the district court because the President has authority to detain Al Hela and the proceedings below complied with the requirements of the Suspension Clause,” Rao said. “We reject Al Hela’s due process claims because the Due Process Clause may not be invoked by aliens without property or presence in the sovereign territory of the United States.”
There have been approximately 780 people detained at Guantanamo Bay since 9/11, and it is believed that 40 suspected terrorists remain, according to the New York Times Guantanamo Docket tracker.
Rao said, “Al Hela claims that the President lacks authority to detain him for substantially supporting Al Qaeda and its associated forces; that he is entitled to release for violation of both ‘substantive’ and ‘procedural’ due process; and that the district court’s discovery procedures failed to provide him with a ‘meaningful opportunity’ to challenge his detention under the Suspension Clause.”
She concluded that “Al Hela’s detention falls within the scope of the President’s authority, and the district court’s habeas procedure comported with applicable constitutional requirements.”
The appeals court ruling describes al Hela as “a Yemeni citizen, tribal sheikh, and businessman with connections to prominent political officials in Yemen’s government” who “maintained contact with several known and suspected affiliates of Al Qaeda and two associated terrorist organizations known as the Egyptian Islamic Jihad and the Aden-Abyan Islamic Army.”
The court said that al Hela “disappeared during a business trip to Egypt in 2002 under circumstances irrelevant to this appeal” and that “U.S. forces later obtained custody of Al Hela and have detained him at Guantanamo Bay since 2004.”
Rao was joined in her judgment denying habeas corpus by George H. W. Bush nominee Judge A. Raymond Randolph and George W. Bush nominee Judge Thomas Griffith, who issued his own eight-page opinion, writing, “Like my colleagues, I would reject those challenges. But unlike my colleagues, I would do so without taking on the broader question of whether the Due Process Clause applies at Guantanamo.”
Rao said that al Hela was “asking that we order his conditional release to a foreign nation on the statutory ground that the President exceeded the scope of his [Authorization for the Use of Military Force] authority and on the constitutional ground that his detention without trial violates ‘substantive’ due process.”
The AUMF, passed shortly after the terrorist attacks of 9/11 that killed nearly 3,000 people, says that “the President is authorized 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, or harbored such organizations or persons.”
The appeals court judge wrote that al Hela argues the AUMF’s authority has “unraveled” and claims his detention amounts to a “life sentence” because the war on terror is “a war without end.” But Rao concluded that “the Constitution vests the war powers in Congress and the President” — not the judiciary — and that “we readily accept the government’s representation that hostilities have not ended.”
“We’re looking at various options that we have,” David Remes, an attorney for al Hela, told the Washington Examiner. “The underlying problem is the injustice of holding individuals indefinitely without charge or trial, and until that problem is resolved, the problem of Guantanamo will remain.”
The Pentagon’s Periodic Review Board ruled in 2016 that “continued law of war detention of the detainee [Al Hela] remains necessary to protect against a continuing significant threat to the security of the United States” and cited “the detainee’s extensive and prolonged facilitation of extremist travel” and “his failure to acknowledge or accept responsibility for past activities.”
President Barack Obama promised to close Guantanamo while running for office in 2008, and on his second day in office, he signed an executive order to close it within a year. But he faced opposition from Congress, among other hurdles (including what to do with the dozens of detainees held there) and didn’t deliver on the promise.
2020 Democratic presidential nominee Joe Biden’s campaign told the New York Times in June that Biden “continues to support closing the detention center” and claimed the prison “undermines American national security by fueling terrorist recruitment and is at odds with our values as a country.”
Trump promised in February 2016 that “we’re going to load it up with some bad dudes,” which he hasn’t done. But he did sign an executive order in January 2018 asking then-Defense Secretary James Mattis to keep the prison open, and said during that year’s State of the Union that “I am asking Congress to ensure that, in the fight against ISIS and al-Qaeda, we continue to have all necessary power to detain terrorists […] and in many cases, for them, it will now be Guantanamo Bay.”
In the nearly two decades since 19 al Qaeda terrorists crashed hijacked planes into the World Trade Center buildings, the side of the Pentagon, and a field near Shanksville, Pennsylvania, killing nearly 3,000 people, the five men believed to be responsible have yet to face a trial.
Khalid Sheikh Mohammed, dubbed “KSM” and described as “the principal architect of the 9/11 attacks” in the 9/11 Commission Report, was a close ally of al Qaeda founder Osama bin Laden and will be on trial alongside Walid bin Attash, Ramzi bin al Shibh, Ammar al Baluchi, and Mustafa al Hawsawi.
The combination of the presiding judge in the 9/11 case deciding to retire and the coronavirus pandemic has meant that the Guantanamo Bay war court has not held a hearing since February, and the trial that had been slated to begin jury selection sometime in early 2021 has been pushed back.
