United States Court of Appeals, District of Columbia Circuit
January 15, 2019
from the United States District Court for the District of
Columbia (No. 1:04-cv-01194)
B. Wilner argued the cause for appellant. With him on the
briefs were Neil H. Koslowe, Kimberly Ferguson, and Anthony
Margulies was on the brief for amicus curiae Commonwealth
Lawyers Association in support of appellant.
Hinshelwood, Attorney, U.S. Department of Justice, argued the
cause for appellees. With him on the brief were Sharon
Swingle and Michael Shih.
Before: Millett and Pillard, Circuit Judges, and Edwards,
Senior Circuit Judge.
MILLETT, CIRCUIT JUDGE:
Ahmed Qassim, who has been held at the Guantanamo Bay Naval
Base in Cuba for seventeen years, appeals the district
court's denial of his petition for a writ of habeas
corpus. On appeal, Qassim presses a due process challenge to
the government's use of undisclosed classified
information as a basis for his detention. In denying
Qassim's motion in limine concerning the use of
undisclosed information, the district court ruled that, as an
alien Guantanamo detainee, Qassim has no rights under the
Fifth Amendment's Due Process Clause. In so ruling, the
district court relied on this court's 2009 decision in
Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009),
vacated, 559 U.S. 131, and judgment reinstated
as amended, 605 F.3d 1046 (D.C. Cir. 2010).
district court's ruling that binding circuit precedent
denies Qassim all rights to due process was in error.
Kiyemba did not so hold. That decision ruled only
that the Due Process Clause does not invest detainees who
have already been granted habeas corpus with a substantive
due process right to be released into the United States. That
decision did not decide, or have any occasion to address,
what constitutional procedural protections apply to the
litigation of a detainee's habeas corpus petition in the
first instance. Nor has any other decision of this circuit
adopted a categorical prohibition on affording detainees
seeking habeas relief any constitutional procedural
protections. The governing law, in fact, is that Qassim and
other alien detainees must be afforded a habeas process that
ensures "meaningful review" of their detention.
Boumediene v. Bush, 553 U.S. 723, 783 (2008).
that, resolution of Qassim's specific due process
challenge to the government's withholding of classified
information would be premature precisely because the parties
and the district court operated under a faulty understanding
of circuit precedent. We instead are constrained to remand
the case for further proceedings to be conducted within the
correct legal framework and to develop the needed factual
record. Pullman-Standard v. Swint, 456 U.S. 273, 291
(1982) ("When an appellate court discerns that a
district court has failed to make a finding because of an
erroneous view of the law, the usual rule is that there
should be a remand for further proceedings to permit the
trial court to make the missing findings."). As it now
stands, the record is insufficient for this court to resolve
Qassim's constitutional challenge. Cf. Reno v.
Catholic Soc. Servs., Inc., 509 U.S. 43, 66 (1993). We
leave it for the district court to address on remand both
Qassim's claimed constitutional right to access the
classified information in the government's hands and the
constitutional source (if any) of such a right. In so doing,
the district court can also address the government's
belated concession, made for the first time on appeal, that
some of the sought-after information may properly be
disclosed in this case.
response to the terrorist attacks against the United States
perpetrated on September 11, 2001, Congress enacted the
Authorization for Use of Military Force, Pub. L. No. 107-40,
115 Stat. 224 (2001). That law authorizes the President
"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." Pub. L.
No. 107-40, § 2(a), 115 Stat. 224, 244. That authority
includes detaining "those who are part of forces
associated with Al Qaeda or the Taliban[.]"
Al-Madhwani v. Obama, 642 F.3d 1071, 1074 (D.C. Cir.
2011) (quoting Al-Bihani v. Obama, 590 F.3d 866, 872
(D.C. Cir. 2010)).
Qassim is a Yemeni citizen. In 1999, he was recruited by a
known al Qaeda and Taliban recruiter to travel from Yemen to
Afghanistan for military-style training. He traveled to
Afghanistan and twice received training at the al Qaeda-run
Al-Farouq training camp.
October 2001, when the United States began bombing
Afghanistan in response to the September 11th attacks, Qassim
was on the front lines with the Taliban near Bagram,
Afghanistan. After the front lines broke, Qassim retreated to
an al Qaeda-affiliated guest house and then to the Tora Bora
region, a cave complex in the mountains of Eastern
Afghanistan. Qassim spent twenty days in Tora Bora and was
present for a nighttime visit from Osama bin Laden.
was arrested by Afghan police, who handed him over to United
States authorities in December 2001. Qassim's name was
later found during raids of al Qaeda safehouses and an al
Qaeda residence in Pakistan. On May 1, 2002, the United
States moved Qassim to its detention facility at Guantanamo
Bay, where he has remained.
after the Supreme Court held in Rasul v. Bush, 542
U.S. 466 (2004), that the federal habeas statute, 28 U.S.C.
§ 2241 (2004), applies to foreign detainees held at
Guantanamo Bay, id. at 481, Qassim filed a petition
for habeas ...