Appeals court rules due process rights don’t apply to Guantanamo detainees

A federal appeals court ruled on Friday that foreign detainees at Guantanamo Bay do not have the right to make due process claims in court.

The decision from the three-judge panel on the D.C. Circuit Court of Appeals ruled that the Due Process Clause of the Constitution does not apply to those held at the military base.

Judge Neomi Rao, who was appointed to the court by President Trump, wrote in the decision that “the Due Process Clause may not be invoked by aliens without property or presence in the sovereign territory of the United States.”

The decision rejects the appeal of Abdulsalam Ali Abdulrahman al Hela, a Yemeni citizen who has been detained at the U.S. military base in Cuba since 2004. A district judge last year denied al Hela’s habeas corpus petition challenging his detention at the facility.

“We think the decision is incorrect and we’re considering our options,” David Remes, al Hela’s attorney, told The Hill on Friday. “The fundamental injustice at Guantanamo is holding individuals indefinitely without a charge. That’s the ultimate problem that needs to be addressed.”

Friday’s decision would likely be the most categorical denial of legal rights for Guantanamo detainees in nearly two decades of court battles over the military prison.

The detention camp was established by former President George W. Bush in 2002 to house detainees who came into U.S. custody during the war on terrorism. It’s been the subject of intense criticism from human rights advocates; many Democrats, including former Vice President Joe Biden, have called for its closing.

Tung Yin, a law professor at Lewis & Clark College in Oregon who studies legal issues concerning national security and terrorism, said the significance of the ruling may largely be symbolic given the alternative administrative procedures outside of the court system for reviewing detainees’ cases that were set up by Congress.

“In one sense, it’s pretty significant in terms of the boldness of the holding,” Yin said. “But in another sense, the practical effect of it is probably not really that strong because President Obama whittled down pretty greatly the number of detainees who are left in Guantanamo.”

Still, the ruling is likely to intensify criticism of the controversial prison, where 40 detainees are still being held despite not being charged with a crime.

“The decision is a misguided attempt to resurrect Guantanamo as a prison outside the law,” Jonathan Hafetz, a senior staff attorney with the American Civil Liberties Union, said in a statement. “The fundamental guarantees of due process unquestionably apply to individuals the U.S. has imprisoned for nearly two decades at an island prison, and it is an affront to the Constitution to suggest otherwise.”

The Supreme Court ruled in 2008 that detainees could challenge their imprisonment by filing habeas corpus petitions in federal court.

But Rao wrote in her opinion Friday that the Supreme Court decision said nothing about the claims that detainees could raise in such petitions.

“While we must enforce constitutional limits on the Executive Branch in this context as in any other, it would be well beyond our authority to extend or to create new constitutional limits on the conduct of wartime detention by the political branches,” she wrote.

Judge Thomas Griffith, a Bush appointee, concurred with parts of Rao’s opinion but said he would have resolved the case without going so far as ruling that detainees could never raise claims under the Due Process Clause.

“Like my colleagues, I would reject those challenges,” he wrote. “But unlike my colleagues, I would do so without taking on the broader question of whether the Due Process Clause applies at Guantanamo. That is a question with immense sweep that our court has repeatedly reserved for a case in which its answer matters. It does not here.”

Trump signed an executive order in 2018 to keep the facility open indefinitely, reversing Obama’s policy aim of closing the prison, which he did not accomplish during his two terms in office.

Al Hela was a businessman in Yemen who disappeared on a business trip to Egypt in 2002 and later rendered to U.S. custody. He says he was tortured at secret U.S. prisons before being sent to Guantanamo Bay in 2004.

The U.S. government says that al Hela was associated with known and suspected al Qaeda affiliate organizations.

Updated at 3:14 p.m.