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

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).


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.


after reading the decision, i have to say, if its reversed en banc it will be reinstated by SCOTUS. the decission is as sound as they get properly applying precedents set by SCOTUS.

Answering procedurally first. If the en banc modifies the Opinion as explained in the OP, but upholds the underlying Judgement, the Government cannot appeal, as they still would be the prevailing party. All the en banc DC Circuit is likely to do is simply repudiate Part IV of the decision, while upholding Parts I, II & III and the underlying Judgement. The Government could only appeal if the en banc DC Circuit actually reversed the Judgement and granted the Appellant relief, something that simply isn’t going to happen.

Appellant al Hela could appeal to the Supreme Court, but the Supreme Court will simply deny his Petition for a Writ of Certiorari without comment.

Now answering as to Constitutional and legal issues.

In Boumediene v. Bush , the Supreme Court held that even though Guantanamo Bay was not United States sovereign territory, it is “under the plenary control, or practical sovereignty” of the United States. And the court held that the detainees at Guantanamo have a right, under the U.S. Constitution, to bring a habeas petition to challenge the legality of their detention. In so holding, however, the court said it was not addressing “the content of the law that governs petitioners’ detention. That is a matter yet to be determined.” Rather, the court was only holding that the Guantanamo detainees “may invoke the fundamental procedural protections of habeas corpus.” That right entitles the detainee “to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” And, the Supreme Court held, the habeas court must have the power to order release of the detainee.

The Supreme Court upheld a right to habeas proceedings and their language in Boumediene conflicts with Rao’s finding of Constitutionality and law in the present case. The Supreme Court certainly has NOT held, since Boumediene, that detainees law due process rights.

I frankly think Roberts would join with the liberal Justices to reverse Rao, if the case somehow did get before the Supreme Court.

I would also be remiss if I did not point out that even with repudiating Part IV, the Appellant still does not get the relief he desires.

it will, if the en banc does as you say, the appellent will surely appeal. either way, it goes to SCOTUS. further, the decision perfectly aligns with all of the cases cited which Bournediene did not in any way reverse. the SCOTUS went through great detail in those decisions to explain the difference between habeus and due process claims. An enemy being held in detention is not entitled to due process claims. they are not a criminal due a date in court, being an enemy is a status, not a charge. I know you want to confer rights on the entire world, but the sotus has specifically rejected that, more specifically with detainees in war.