Judge Rao asserts due process rights do not apply to detainees at Guantanamo, as per Part IV of her Opinion.
First of all, this decision is, at least in its current form, is very unlikely to survive en banc review at the DC Circuit. I think the DC Circuit grants en banc review and while they will likely sustain the underlying Judgement, they will likely reverse the Opinion of the Court, to repudiate the findings of Judge Rao in regards to due process rights.
That is, they will sustain Judge Rao on Parts I, II & III of her Opinion but overturn Part IV, which is where she makes the broad assertion regarding due process. They will also likely sustain the Judgement. This is the position taken by Judge Grifith and likely will be the position of the en banc DC Circuit on review.
Second of all, this is why, though I favor conservative judges on many issues, I don’t want them completely dominant throughout the judiciary. This decision (Part IV to be precise) is a bridge too far and needs to be repudiated. Democratic appointees serve to balance things out when certain Judges go bat ■■■■ crazy, like this.
I like conservative Judges on numerous issues. But NOT here.
This case happened to draw an all Republican panel, one Trump appointee (Rao), one G.W. Bush appointee (Griffith) and one G.H.W. Bush appointee (Randolph).
Link to Opinion of the Court in ABDULSALAM ALI ABDULRAHMAN AL HELA, DETAINEE CAMP DELTA, APPELLANT v. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., APPELLEES.
Opinion for the Court filed by Circuit Judge RAO.
Opinion concurring in part and concurring in the judgment filed by Circuit Judge GRIFFITH.
Concurring opinion filed by Senior Circuit Judge RANDOLPH.
Judge Griffith starts his concurrence as follows:
GRIFFITH, Circuit Judge, concurring in part and concurring in the judgment: “[T]he cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. U.S. Drug Enf’t Agency, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment). With that principle in mind, I concur only in Parts I, II, and III of the court’s opinion. Because we can resolve this case without deciding whether Guantanamo detainees may ever assert rights under the Due Process Clause, I do not join Part IV.
Griffith joined the Judgement, while bowing out of Rao’s entirely unnecessary assertion.
Senior Judge Randolph concurred in the Opinion and the Judgement.