On Tuesday, the D.C. Circuit Court of Appeals heard oral argument in Al-Alwi v. Trump. Chief Judge Merrick Garland, Judge Karen LeCraft Henderson (joining remotely) and Judge Thomas Griffith reviewed the D.C. District Court’s dismissal of Guantanamo detainee Moath Hamza Ahmed al-Alwi’s second habeas petition. Lawfare has covered this case extensively, most recently with Sarah Grant’s comprehensive oral argument preview. In this post, I will assume familiarity with the case. A recording of oral argument is available here.
On consideration in this appeal are three questions:
- Whether the statutory authority of the United States to detain al-Alwi has unraveled because the practical circumstance of the conflict in Afghanistan are too unlike those that informed the development of the law of war and, if not, whether continued and potentially lifelong detention violated the Constitution.
- Alternatively, whether the authority of the United States to detain al-Alwi has expired because the conflict in which he was captured more than fifteen years ago has ended.
- Whether the Constitution requires heightened procedural protections to ensure the continued legality of indefinite detention that has exceeded fifteen years and has no end in sight.
Counsel for al-Alwi, Ramzi Kassem, begins his argument by emphasizing the duration of al-Alwi’s detention: more than 16 years and counting. Kassem asserts that the indefinite nature of al-Alwi’s detention conflicts with statutory and constitutional limits, highlighting Supreme Court precedent from Hamdi v. Rumsfeld characterizing wartime detention as “temporary and non-punitive.”
Griffith seizes upon this durational point, inquiring about additional Supreme Court precedent that contemplates detention that could last for a “generation” in cases involving unusual conflicts. Kassem then referrs again to Hamdi and Boumediene v. Bush to bolster his point that the Supreme Court anticipated that the judiciary may have to reevaluate the authority to detain over time. Kassem asserts that the court in Hamdi was clear when it said that “Detention for life for the purpose of interrogation is not permissible,” but Griffith responds by asking whether detention for life is permissible for the purpose of keeping the individual off the battlefield.
Some back-and-forth ensues to clarify whether Kassem is arguing that the conflict authorized by the AUMF is, after many years, the same conflict or a different conflict. Kassem clarifies that he is arguing that this is the same conflict, although throughout his argument and rebuttal, he insists that the conflict over time has changed in both type and tenor.
Garland chimes in, asking what law should apply, considering that this conflict is the same but unusually long. Kassem explains that international law, specifically international humanitarian law (or the law of armed conflict) is murky in this area because the conflict is a non-international armed conflict (NIAC). Kassem argues that the Geneva Conventions provide clear law in the context of detention in an international armed conflict (IAC), but the law is not as clear in a NIAC. (Kassem concedes the conflict in question morphed over time from an IAC to a NIAC.) The reason, according to Kassem, that the existence of a NIAC complicates the applicability of the Geneva Conventions is that the conventions contemplates a NIAC as a domestic matter (between a state and non-state party), relying on domestic law to govern the detention of the individuals from the non-state party.
In this case, Kassem argues, the court should look beyond Common Article III of the Geneva Conventions but also to domestic law; this implicates the authorization for the use of military force (AUMF). Unsatisfied with that answer, Garland explains that he is still left without a body of law to apply. Because the court has interpreted the AUMF to extend authority for the duration of the conflict, he insists on clarification of the law that dictates how the court should handle a single conflict when it extends in duration.
Kassem asserts that, after such time as has passed in this conflict, the court must look to the suspension clause and the due process clause of the Constitution. When pressed about whether international law applies at all, the appellant argued that the two bodies of law, domestic and international, are “congruent on this point.”
Kassem and the court engage in a brief detour in which they contemplate al-Alwi’s combatant status. Kassem argues that, because this is a non-international armed conflict, there are no combatants. Al-Alwi is thus a civilian for the purposes of international law—meriting a reevaluation of the reasons behind detention beyond the initial justification for detention. But Garland pushes back: the court found that al-Alwi was an enemy combatant in 2011. Doesn’t that still stand? Kassem clarifies that he does not need to prove that al-Alwi is a civilian in order to prevail in this case.
Kassem regroups: Al-Alwi’s detention is illegal under the AUMF, he says or, if the court believes that it is legal under the AUMF, then that construction of the AUMF is unconstitutional. Specifically, within the ambit of domestic law, Kassem argues that the constitutionality of al-Alwi’s detention should be reevaluated as a matter of substantive due process, or in the alternative, as a matter of procedural due process.
Garland immediately responds by questioning whether these arguments were raised in the court below. His reading of petitioner's habeas petition only surfaced claims on the basis of the AUMF and customary international law, not any constitutional arguments. Garland asks Kassem for the specific reference and pulls out a large binder of records from the proceedings below to get counsel to point him directly to it. Kassem clarifies that there is no reference to due process in his filings below, but in oral argument, he says, he questioned whether there should be a constitutional limit to detention. Garland and Kassem them both thumb through the Joint Appendix to locate the text. They find it.
Holding the line, Garland explains that beyond this one mention in oral argument, there is nothing from the papers below that would alert the court that due process was at issue in this case. There are no explicit references or case citations alluding to the shock the conscience test or procedural due process. The court below didn’t rule on these issues, and the government didn’t file any opposition to them.
Kassem points the court to the principle that rules applying to forfeiture in federal court are prudential, precedent from Yee v. City of Escondido, and the court can use its discretion to consider the constitutional issue. Kassem argues that this is what the court did in Boumediene, because “the cost of delay should not be born by the detainees.” Remand on this point will result in only more delay for al-Alwi.
Henderson jumps in with a hypothetical: Assuming the due process claims are not forfeited, why do the D.C. Circuit’s prior decisions in Al-Bihani v. Obama and Al-Odah v. United States not answer the issue at hand? In those cases, the court rejected heightened scrutiny. Kassem distinguishes the cases (one deals with criminal proceedings) and argues that the passage of time here should merit more robust habeas review in light of the implication that the AUMF justifies life-long detention.
Next, Griffith probes counsel on the issue of the duration of the conflict, specifically in light of the court’s language in Ali v. Obama—in which the court said that it was aware that this is a long war with no end in sight. Griffith further explains that the court specified that the AUMF authorizes the president to detain enemy combatants and that detention may last for the duration of hostilities. Kassem asserts that this portion of the decision in Ali was dicta and it does not foreclose consideration of the issue.
Garland now asks whether counsel disputes the findings of the previous case in this case. Kassem says that on remand there has to be a fuller habeas review. Garland points out that the petitioner hasn’t argued that he can get relief under a clear-and-convincing-evidence standard; in other words, counsel hasn’t argued that the result of the case would be different if the clear-and-convincing-evidence standard was used instead of the preponderance of the evidence test that the courts used last time around. Kassem responds that it may well be different, and Garland points out that a number of legal questions must be answered before reaching that conclusion to remand on this issue. And again, he says, these arguments weren’t presented below.
Arguing for the government is Sonia Carson (a former Lawfare student contributor). Carson begins her argument by emphasizing that the conflict in question is ongoing, thus justifying al-Alwi’s continued detention. The facts, She argues, are straightforward: al Qaeda and the Taliban continue operations in Afghanistan and thus al-Alwi continues to pose a threat to the United States. Moreover, Carson argues that if the court determines that the political branches—in this case, two presidents and Congress—have decided that the United States remains in active hostilities, that decision deserves deference from the court. She insists that the inquiry should end when the court has made that determination. When the political branches have provided an answer, the political question doctrine comes into play.
Garland poses a hypothetical: what if the facts showed that there were no hostilities but the president says there are? Would the court be able to counter the political branches then? Carson first responds by outlining the applicability of the political question doctrine, but then also states that the Supreme Court’s decision in Ludecke v. Watkins reserved a question like this for later consideration. Carson reminds the court that this question doesn’t need to be decided in this case and Garland seems satisfied with that answer.
Carson says, “it is not our hope to detain al-Alwi indefinitely, but it is not entirely up to us,” and then emphasizes the continued attacks from al-Qaeda and the Taliban. The executive has determined that al-Alwi continues to pose a significant threat to the U.S. She follows up by reiterating that, to dispose of this case, it is sufficient to look at the AUMF’s continued vitality.
Garland then asks why the government failed to rely on the authority of the 2012 National Defense Authorization Act (NDAA) in its briefing. Carson replies that the government does rely on it. The 2012 NDAA reaffirms that the AUMF permits detention for the duration of hostilities, she says.
Griffith changes topics, asking about the procedure employed by the Periodic Review Board (PRB) to determine whether a detainee is still dangerous. Carson explains the PRB procedure—including the detainee’s freedom to submit statements, call witnesses, answer questions, and have private counsel in the evaluation—as laid out in the authorizing 2011 executive order. The PRB here determined that al-Alwi’s detention is still necessary because of his continued extremist rhetoric and the possibility that he might be subject to recruitment upon release.
There are no further questions from the court, and Carson still has significant time left over, so she takes this opportunity to further emphasize that the due process claims made by Kassem are foreclosed by circuit precedent and, in any event, there’s no reason to believe they would make a difference in the court’s determination. She ends before her allotted time is done.
While Kassem does not have any time left for rebuttal, the court grants him twelve minutes. In that time, Kassem responds to four topics raised by the government: (1) forfeiture of the constitutional claim; (2) the relevance of the PRB; (3) the 2012 NDAA; and (4) deference to the determination of the political branches.
Kassem argues that after Boumediene, habeas can’t be seen in a formalistic light but should be adaptive. Therefore, there isn’t any forfeiture of the due process claim, he claims. It is appropriate for the court to resolve these questions of law in the current forum. Kassem reiterates that the forfeiture rule is only prudential.
He then addresses the relevance of the PRB. Kassem argues that the PRB is not a substitute for habeas, and is also deficient in its own right. He points out what he believes to be government hypocrisy: in previous cases, the government has said that PRBs are irrelevant to a habeas proceedings when those PRBs had cleared the individual in question. But now the government appears to tout the legal salience of the PRB determinations when it suits its purposes. Garland interrupts Kassem and disposes of this quickly, by explaining that neither side appears to be using the PRB as central to their legal arguments. Kassem continues to talk about the perceived deficiencies in the PRB for a bit before moving on.
He next argues that Ludecke isn’t the right precedent for deference to the political branches; Hamdi is. In Hamdi, the court looked at the ongoing conflict in Afghanistan and concluded that in 2004 there were active hostilities, thus suggesting that it is for the courts to look at records of the conflict and evaluate whether hostilities remain active. Garland interrupts to clarify what precisely Kassem is objecting to: the fact of the conflict or the characterization of the conflict?
At one point, Garland holds both hands up and asks Kassem to hold on. He then proceeds to push for more clarification. Ultimately, Kassem concedes he is disputing the characterization of the conflict. (Does current reality mean that this is a different conflict from the one being fought before?) He says this is a different conflict. He further argues that the NDAA does not absolve the court of its responsibility to interpret the AUMF. He distinguishes between the court’s role in determining detention authority and in determining actions such as a bombing raid (to which he concedes that the political question doctrine would apply).
Kassem emphasizes approaching the case in formalistic fashion will result in “manifest injustice” by imposing more delay on al-Alwi. Garland asks whether the D.C. Circuit is bound by Kiyemba v. Obama. Kassem argues that Kiyemba III’s issue is narrow: the constitutional right to be brought into the U.S. to be released. It does not preclude this court from deciding this case despite the government contention that Kiyemba is broader.
Kassem ends by arguing that the government hasn’t disputed that the test for the extraterritorial reach of the Constitution under Boumediene will apply here for due process purposes.
Editor's Note: This piece was edited on March 23, 2018 with minor corrections of attribution.