Trump-Appointed Appeals Court Judge Rules That Guantánamo Prisoners Don’t Have Due Process Rights

2.9.20

Judge Neomi Rao (left), a Donald Trump appointee to the D.C. Circuit Court, who recently wrote a contentious opinion for the court in the case of Yemeni businessman and Guantánamo prisoner Abdulsalam al-Hela (right), ruling that the Guantánamo prisoners do not have due process rights; in other words, that they can neither see nor rebut any evidence held by the government that purportedly justifies their detention.

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I wrote the following article for the “Close Guantánamo” website, which I established in January 2012, on the 10th anniversary of the opening of Guantánamo, with the US attorney Tom Wilner. Please join us — just an email address is required to be counted amongst those opposed to the ongoing existence of Guantánamo, and to receive updates of our activities by email.

In the long and profoundly dispiriting story of the Guantánamo prisoners’ efforts to challenge their imprisonment without charge or trial through legal means, their victories — in Rasul v. Bush in 2004, and Boumediene v. Bush in 2008, when they were granted habeas corpus rights — evaporated through a number of appeals court rulings from 2009 to 2011, which ended up with the prisoners’ habeas rights being gutted of all meaning.

Between 2008 and 2010, 38 prisoners had their habeas corpus petitions approved, meaning that, even though the government had been given a very low evidentiary hurdle, they couldn’t even demonstrate to a range of District Court judges that the men in question were involved, in any meaningful sense at all, with either Al-Qaeda or the Taliban. Since 2010, however, not a single prisoner has had his habeas corpus petition granted, and efforts to persuade the Supreme Court to take back control of the prisoners’ fate have also come to nothing.

Finally, however, last June, the prisoners secured a significant victory in the D.C. Circuit Court (the court of appeals in Washington, D.C.), in a case argued by Close Guantánamo’s co-founder Tom Wilner, as I explained in an article entitled, A Rare Court Victory Offers Hope for Guantánamo’s “Forever Prisoners”, when a panel of three judges ruled, in the case of Khalid Qassim, an insignificant prisoner, and yet one who has been held now for over 18 years without charge or trial, that he should be able to see and rebut the evidence purportedly justifying his detention.

This, of course, ought to be the cornerstone of a fair legal hearing, but in that period when politically biased D.C Circuit Court judges fought back against Boumediene v. Bush, judges in a case known as Kiyemba v. Obama, “declared,” as Tom Wilner described it, “that, although the detainees may have a right to a habeas hearing, they have no constitutional right to due process of law.”

Since then, as Wilner proceeded to explain, the District Court has “strictly followed and uniformly interpreted that decision to deny the detainees the right to view any of the purported evidence against them that the government claims is classified”, and, “[b]ecause the government claims that almost all the evidence is classified, the Kiyemba decision effectively prevents the detainees from seeing, confronting and rebutting the purported evidence against them, making it virtually impossible for them to prevail in a habeas proceeding.”

That ruling, Qassim v. Trump, involved the D.C. Circuit Court judges sending Qassim’s case back to the lower court, where, sadly, it has languished ever since.

This spring, however, a number of distinguished law professors — including Kermit Roosevelt III, Bruce Ackerman, Douglas Cassel, Erwin Chemerinsky, Eugene Fidell, Eric Freedman, Laurence Tribe, and Steve Vladeck — submitted an amicus brief, reinforcing why Qassim’s case is so significant, in which they reiterated that it is unconstitutional to interpret Boumediene as a justification for invoking the Suspension Clause regarding habeas corpus for the Guantánamo prisoners, as the government has tried to do, on the basis of the prisoners’ nationality, and by claiming that habeas rights do not necessarily involve full and meaningful due process rights.

As the amicus law professors stated explicitly, “First, after Boumediene, it is simply not the case that noncitizens outside the United States are categorically unable to invoke the protections of the Constitution. Second, affording detainees inadequate process to challenge their detention is a suspension of the writ of habeas corpus. And last, litigation in federal courts inside the United States is always governed by the Due Process Clause. In denying these propositions, the government rejects both basic understandings of our constitutional order and directly controlling Supreme Court authority.”

Now, however, in a ruling in a case involving another Guantánamo prisoner, Abdulsalam al-Hela, a panel of appeals court judges led by Donald Trump appointee Judge Neomi Rao seem to have set out to undermine last year’s Qassim ruling.

As American Military News explained in an article, in the court’s opinion, issued last  Friday, Judge Rao wrote, “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.”

In doing so, Judge Rao was joined by her colleague, Senior Circuit Judge A. Raymond Randolph, who was involved in some of the dreadful decisions a decade ago, although it is noteworthy, however, that,as was made clear in Qassim, this is explicitly not what the Supreme Court ruled in Boumediene.

The case is now almost certain to go to a full en banc panel for review, one that, unfortunately, will also include Judge Randolph — although it will absolutely not include the blessing of the majority of the Supreme Court who decided Boumediene in the prisoners’ favor all those long years ago.

The prisoners deserve justice, but that is still not something they are being given, after those few years from 2008 to 2010 when the law actually applied at Guantánamo. Since then, it has been broken again, smashed unconstitutionally by politically motivated judges, and, sadly, it is still not clear if it can be mended.

* * * * *

Andy Worthington is a freelance investigative journalist, activist, author, photographer, film-maker and singer-songwriter (the lead singer and main songwriter for the London-based band The Four Fathers, whose music is available via Bandcamp). He is the co-founder of the Close Guantánamo campaign (and see the latest photo campaign here) and the successful We Stand With Shaker campaign of 2014-15, and the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. He is also the co-director (with Polly Nash) of the documentary film, “Outside the Law: Stories from Guantánamo” (available on DVD here, or here for the US, or you can watch it online here, via the production company Spectacle, for £2.55), and for his photo project ‘The State of London’ he publishes a photo a day from eight years of bike rides around the 120 postcodes of the capital.

In 2017, Andy became very involved in housing issues. He is the narrator of the documentary film, ‘Concrete Soldiers UK’, about the destruction of council estates, and the inspiring resistance of residents, he wrote a song ‘Grenfell’, in the aftermath of the entirely preventable fire in June 2017 that killed over 70 people, and he also set up ‘No Social Cleansing in Lewisham’ as a focal point for resistance to estate destruction and the loss of community space in his home borough in south east London. For two months, from August to October 2018, he was part of the occupation of the Old Tidemill Wildlife Garden in Deptford, to prevent its destruction — and that of 16 structurally sound council flats next door — by Lewisham Council and Peabody. Although the garden was violently evicted by bailiffs on October 29, 2018, and the trees were cut down on February 27, 2019, the resistance continues.

To receive new articles in your inbox, please subscribe to Andy’s RSS feed — and he can also be found on Facebook (and here), Twitter, Flickr and YouTube. Also see the six-part definitive Guantánamo prisoner list, The Complete Guantánamo Files, the definitive Guantánamo habeas list, the full military commissions list, and the chronological list of all Andy’s articles.

Please also consider joining the Close Guantánamo campaign, and, if you appreciate Andy’s work, feel free to make a donation.

13 Responses

  1. Andy Worthington says...

    When I posted this on Facebook, I wrote:

    Here’s my latest article, about a depressing appeals court ruling last week, written by Trump appointee Judge Neomi Rao, claiming, in the case of Yemeni businessman Abdulsalam al-Hela, held at Guantanamo since 2004, that the Guantanamo prisoners do not have due process rights; in other words, that they don’t have the right to either see or rebut the government’s alleged evidence against them.

    This is fundamentally contrary to Boumediene v. Bush, the 2008 Supreme Court ruling affirming the prisoners’ habeas corpus rights, and also, significantly, a ruling last year, Qassim v. Trump, argued by my friend and colleague Tom Wilner, with whom I co-founded the Close Guantanamo campaign, which established their due process rights, in direct contravention of this latest ruling.

    As a non-lawyer, I appreciate that this can seem quite arcane and obscure, which serves to disguise the fact that, fundamentally, it shows that, over 18 years since Guantanamo opened, the US government, via the Justice Department, is still doing all it can to deny justice to men still held, for the most part, indefinitely without charge or trial at Guantanamo.

  2. Andy Worthington says...

    Asiya Muhammad wrote:

    Horrendous 😑

  3. Andy Worthington says...

    Yes, the latest phase in a long process of the US generally making sure the Guantanamo prisoners are beyond the reach of the law, Asiya. It’s truly shameful that this should be happening 18 and a half years after the prison opened, as though all those years mean nothing.

  4. Andy Worthington says...

    Rose Ann Bellotti wrote:

    Devastating. Even in view of all of the Supreme Court cases that ruled against indefinite detention without due process. I wonder how that judge can justify her ruling.

  5. Andy Worthington says...

    Two words, unfortunately, Rose – “Trump appointee.” She’s also a former clerk for Justice Clarence Thomas, and doesn’t seem to have made a lot of friends in the Circuit Court: https://www.law.com/nationallawjournal/2020/03/11/trump-appointee-neomi-rao-has-some-strong-opinions-even-her-gop-tapped-colleague-disagrees/

  6. Andy Worthington says...

    David Brown wrote:

    JFC. Rule of law. It’s not that hard.

  7. Andy Worthington says...

    You would think so, wouldn’t you, David? Sadly, this is what happens when a bunch of vengeful senior officials decide to throw out all the rulebooks, as Bush & co did after 9/11.

  8. Andy Worthington says...

    Jan Strain wrote:

    The rule of law no longer applies in this atmosphere. The courts were stacked by Bush first and Trump is finishing the job all the way up to SCOTUS.

  9. Andy Worthington says...

    Rose Ann Bellotti wrote:

    Jan, yes, I fear that even if any case gets to the Supreme Court, the arch conservatives on the Court will never give the prisoners’ defense any consideration at all.

  10. Andy Worthington says...

    Ed Charles wrote:

    A lot of this will depend on what is going on in society at large.

  11. Andy Worthington says...

    Rose Ann Bellotti wrote:

    Ed, how so? It’s been 18-19 years since Bush’s Prison for the Ages was “opened.” Since then we have started at least 3 wars against people America on the whole blames for the crimes committed by some 19 criminals. We haven’t won any. What will be different in this society in 4 years from now? Especially if Trump gets another 4 years. And if he doesn’t, will Biden get the thing closed, once and for all? He and the Democrats don’t even talk about it anymore. Progressive Bernie Sanders doesn’t talk about it anymore, even saying once to the media he had not thought about it very much. America, on the whole, doesn’t care what it does to these people, and Americans, on the whole, have put it aside, out of sight/out of mind. I am filled with a forlorn hope, I am afraid. I hope I am wrong. I have been hoping for a long time.

  12. Andy Worthington says...

    There’s no hope in the Supreme Court anymore, Rose, Jan and Ed, as has been the case since the Republicans lawlessly refused to approved Merrick Garland’s nomination, and have since added two malignant right-wing ideologies to the Court, poisoning any hope for judicial balance for a generation.

    As has been the case since Guantanamo opened, the release of prisoners is fundamentally a political matter rather than a legal one. A change of president will lead to some releases, I’m pretty sure, but no one really wants to talk about how the tortured men accused of major crimes (including 9/11) or just tortured horribly anyway (like Abu Zubaydah) will never be freed, and may never be successfully tried.

    That said, it remains of value for the law to confirm the necessity of giving men otherwise deprived of their rights the right not just to have a habeas corpus hearing, but to be able to see and to challenge the supposed evidence held by the government. It’s particularly dispiriting that these rights are still being fought over 12 years after Boumediene.

  13. Andy Worthington says...

    Here’s a Spanish translation via the World Can’t Wait’s Spanish website – ‘El fallo del juez del Tribunal de Apelaciones designada por Trump determina que los prisioneros de Guantánamo no tienen los derechos de debido proceso’: http://worldcantwait-la.com/worthington-fallo-juez-tribunal-apelaciones-determina-prisoneros-gitmo.htm

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Andy Worthington

Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo and We Stand With Shaker. Also, photo-journalist (The State of London), and singer and songwriter (The Four Fathers).
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