Armed Conflict Courts & Litigation Criminal Justice & the Rule of Law Terrorism & Extremism

Oral Argument Summary: Qassim v. Trump

Patrick McDonnell
Thursday, February 7, 2019, 8:00 AM

On Jan. 15, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in Qassim v. Trump. This panel follows after the court’s denial on Khalid Ahmed Qassim’s initial request of hearing his appeal en banc.

Published by The Lawfare Institute
in Cooperation With

On Jan. 15, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in Qassim v. Trump. This panel follows after the court’s denial on Khalid Ahmed Qassim’s initial request of hearing his appeal en banc.

Judges Patricia Millett and Cornelia Pillard and Senior Judge Harry Edwards reviewed the federal D.C. District Court’s denial of Qassim’s motion in limine seeking to preclude his habeas corpus proceeding from being adjudicated according to procedures he asserts violate the Due Process Clause, as well as the denial of Qassim’s petition for a writ of habeas corpus. Thomas Wilner argued for Qassim and Brad Hinshelwood argued for the government.

The appellant contends that that D.C. Circuit’s decision in Kiyemba v. Obama is inconsistent with the procedural protections articulated in Boumediene v. Bush. The court needs to revisit Kiyemba to ensure Qassim has habeas proceedings adjudicated in accordance with due process procedures. The government, on the other hand, asserts that Kiyemba does not apply since Qassim declined the extensive procedures afforded him and instead agreed to a stipulation of facts with the government. Even if Kiyemba were applicable, the current panel is bound by the opinions of the D.C. Circuit and should affirm the lower court’s ruling.

In his opening remarks, Wilner noted that the previous Friday marked the seventeenth anniversary of the opening of the detention center at Guantanamo Bay. He subsequently went into a short history of court challenges to detention and the attempt by Congress to limit detainees’ habeas rights.

He then went on to explain his principle source of contention, which was the D.C. Circuit’s opinion Kiyemba. In that case, the D.C. Circuit held that while detainees had a procedural right to a habeas hearing, they had no constitutional right to due process because they are aliens without property or presence in the United States.

Judge Millett, however, disagreed with Wilner’s characterization of what Kiyemba held. She said the granted procedures of habeas were not an issue. Rather it was whether the Due Process Clause supported a claimed remedy of release into the United States. Judge Millett then asked if Wilner could cite any case in the D.C. Circuit that held the Due Process Clause did not apply to the procedures governing the adjudication of the right to detain and not the remedial right of Kiyemba.

Wilner responded with Al-Bihani v. Obama, in which the D.C. Circuit said that Guantanamo detainees are deserving of leaner procedures than the due process protections afforded to Americans in habeas proceedings in U.S. courts.

While Judge Millett replied that leaner procedures do not mean detainees have no rights or procedural protections, Wilner said that he believes that, if they have due process rights, the protections should not be leaner than those given in the United States after conviction. The Supreme Court has even said those in executive detention, if anything, are entitled to more robust procedures. Wilner wishes to distinguish Kiyemba.

Judge Millett replied that Boumediene was quite specific. The meaningful, effective opportunity to challenge the government’s case and meaningful judicial review were required just to avoid a suspension of habeas corpus. Nothing in Al-Bihani forecloses that, and Kiyemba wasn’t about the habeas procedures determining the legality of detention at all.

Wilner replied that Boumediene actually means there is a right to a habeas corpus proceeding. These proceedings must be done in accordance with due process of law, as habeas corpus and due process cannot be separated. Habeas without due process simply is not habeas under the U.S. system.

Judge Pillard noted that due process is contextual. Cases that proceed under the Classified Information Procedures Act (CIPA) have various substitutes for conventional due process requirements for classified national security information. The decision to sustain due process challenges depends on the circumstances and whether the individual had an opportunity to test the charges against them. She asked, isn’t the question whether the best processes available under the case management order (CMO) are in fact going to impinge Qassim’s ability to test the evidence against him?

Wilner responded that the question is really whether his client has the right to due process or not. Mentioning Morrissey v. Brewer and Gagnon v. Scarpelli, Wilner went on to say that the minimum requirements of due process include written notice of the claimed violation and disclosure of the evidence against the defendant. Responding to Pillard’s CIPA example, he argued that, while the courts draw a balance, the executive’s interest in protecting classified information does not overcome a defendant’s right to present their case. Furthermore, the courts have held under CIPA that if the accused cannot be given the classified information, they must be given a substitute. That substitute must be to provide the defendant with substantially the same ability to make his defense as would the disclosure of the specified classified information.

Judge Edwards then asked to put the analysis into the context of this case. The defendant here did not ask for discovery. What was the legal error?

Wilner replied that they entered into a stipulation with the government because they could not see the facts to dispute them. The government did not reply to a previous proposal of procedures under which they would have disclosed the requested information. While Wilner admitted that he may have made a mistake by believing the government and entering into the stipulation, he argued that this is in substantial part because the CMO procedures are contrary to the procedures under CIPA.

Judge Millett asked if Wilner would claim anything more than what is under CIPA. Wilner replied he would claim only what it allowed: any relevant, material information or evidence disclosable to cleared counsel or an adequate substitute. Wilner asserted this is not the rule under the CMO procedures.

Judge Pillard noted that, even under CIPA, substitutes are, on occasion, held to be adequate under due process when the counsel or individual subjected to the contested action doesn’t have the opportunity to see the evidence or cross-examine the witness. Here, the government prepared an amended factual return, but instead the parties went the stipulation route. It’s hard to say whether what Qassim would have been able to get might in fact have approximated what due process would require. Wilner disagreed and requested the court read Al-Hela v. Obama.

Judge Millett noted that Al-Hela is a district court case and an attorney should not come to the circuit court claiming their hands are tied by a district court decision. Furthermore, counsel should have argued in district court that the government cannot withhold information. What Wilner did was file a motion asking for due process contrary to Kiyemba.

Wilner countered that they filed a motion in limine after proposing procedures in which the government would disclose. The motion in limine wasn’t just asking for due process in some theoretical way; it would have given them the disclosure of testable information.

While Judges Pillard and Edwards questioned the lack of preserved objections from the defense on the lack of disclosure, Wilner contended that his actions were in fact noting the defense’s concerns with due process. He expressed concern that alternative actions would lead to two more years of faulty procedures.

Judge Millett characterized the defense’s motion in limine as going through a laundry list of objections to assorted case law and asked if Wilner went to district court and expressed a desire to see classified information or an adequate substitution as required by Boumediene. Wilner replied that the motion did ask for specific information disclosures and procedures, but D.C. District Judge Thomas Hogan said he couldn’t grant it because he was bound by D.C. Circuit precedent.

Judge Pillard noted that, under the CMO itself, the government needed to get an exception from the district court if it didn’t provide the petitioner’s security-cleared counsel with information because it’s classified. Here, she noted, the circuit court cannot tell if Wilner pushed that as an issue because nobody has looked at Exhibits 17 and 18, including the district court, and there’s no exception ruling.

While Wilner replied that no exception was needed because the government was not withholding relevant information they were relying on, Judge Pillard stated that, in a formal sense, they were relying on it since it was attached to the return. There is no record of the defense making a motion to see it.

The panel noted their continued concerns about the lack of objections in the record. Wilner closed by reasserting his belief that the defense was noting their concerns through the motion to see the evidence against Qassim, in accordance with due process.

Before Hinshelwood began his oral argument, Judge Millett asked if the district court was given unredacted copies of Exhibits 17 and 18, while noting that they’re virtually 99.9 percent redacted. Hinshelwood didn’t believe so because the government was not relying on the redacted portions. Judge Millett then asked, why submit to the district court documents as a basis for a decision if you weren’t going to rely on them? How can anybody know what the district court relied on when nobody has seen it?

Hinshelwood replied that the government can say comfortably what the district court was relying on, but Judge Millett still had concerns that the government could submit black pages to a district court and ask it to make a decision.

Hinshelwood responded that if there had been a challenge to those redactions, the court would have been entitled to review the document in camera to make whatever judgments were necessary, yet the defense raised no concerns.

After Judge Millett asked what aspects were actually relied upon in these redacted documents, Hinshelwood noted the cleared information that referenced the petitioner, among other items. Judge Edwards continued to press the question, why submit blackout pages if not relying on that information?

Hinshelwood replied that they wanted to show the full scope of the exhibit to enable Qassim to bring a challenge under Al Odah v. United States, which he ultimately did not do. Hinshelwood went on to reiterate, after being questioned by Judge Pillard about disclosure under the CMO in this case, that the government did not rely on the redacted material from the exhibits given to Qassim’s counsel. If the defense disagreed, they could make a challenge. Again, none was made.

Judge Edwards remained skeptical of this process. He noted that since the defense stipulated, they could no longer raise these issues. He went on to voice his concern about what is actually at issue.

Hinshelwood argued that the court is reviewing a set of facts to which Qassim stipulated. The defense conceded that the government has sufficient evidence to justify Qassim’s continued detention. After another question by Edwards, Hinshelwood stated that he doesn’t agree that the defense has been denied access to material information.

Judge Pillard asked whether they prepared an unclassified version of the factual return that otherwise could have been given to the defense. Hinshelwood replied that the obligation to provide an amended unclassified factual return was suspended when the stay was entered in the case. A decade later, when the case was starting to be litigated again, there was no unclassified version ready. It requires substantial work on behalf of the client agencies to figure out what material can be disclosed to the detainee, and in what format. Because of the stay, it was not something the government was undertaking in 2008.

Judge Pillard then asked what concrete record Hinshelwood thought Qassim’s counsel should have insisted on. Hinshelwood said to look at the specific ways in which Qassim asserted he was denied due process. One claim is that he’s not able to review documents containing his own statements. However, the district court, since 2009, has interpreted the CMO as permitting a detainee to review his own statements even if they’re classified. Additionally, the protective order in this case provides for mechanisms for requesting that the government declassify certain documents or that the government give permission to disclose documents to a detainee. No such request was made in this case.

Judge Millett then asked why the government was leaving the defense with a sort of choice between the stipulation or waiting years before they would even have the documentation needed from the government’s responses. What were they supposed to do? Hinshelwood retorted that that wasn’t a fair characterization of the choice put to counsel. The defense had persisted in seeking a judgment that they could appeal without going through the fact-finding process. It takes a long period of time and the government had an obligation to do a search for exculpatory information. The defense chose to forego that opportunity. Hinshelwood went on to note that Qassim could have chosen to push the government to go through the CMO procedures.

Judge Pillard then asked Hinshelwood whether he thought, at least at the time, the stipulations being developed would be a fit record on which the court could decide the due process question. Hinshelwood replied no, rather, that he believed the stipulations would provide a fit record on which the district court could enter judgment. He clarified that the government has consistently focused on the district court’s need for a sufficient factual record on which the entry of judgment could be based regarding the justification for continued detention. Qassim’s counsel made a judgment call that it was better to take a calculated risk as to their ability to challenge Kiyemba eventually before the en banc court because this panel is bound by that decision.

Judge Pillard then indicated that she wanted more information regarding Hinshelwood’s comments on Kiyemba. She noted that Kiyemba deals with the substantive due process question of whether there’s a liberty interest of a habeas corpus petitioner to be released into the United States. A lot of the laboring in that case had to do with sovereign authority on the part of the political branches to decide who comes in and who doesn’t and that’s not within the court’s remedial power. Judge Millett noted that nothing in Kiyemba involved the procedures for adjudicating detention.

Hinshelwood agreed that it didn’t involve procedures for adjudicating detention, but the language said quite flatly that due process does not apply to individuals at Guantanamo. Judge Millett disagreed, noting that instead Kiyemba says the Due Process Clause is not a source of authority for the remedy of a release into the United States. Judge Edwards also noted that it’s surprising that the government is focused on Kiyemba because it doesn’t speak to the issues before the court today. Hinshelwood replied by citing Rasul v. Myers as saying Kiyemba is relevant precedent. The real question before the court is whether there is a gap between the procedures that due process would guarantee, even if applied here, and the available procedures guaranteed by Boumediene and provided under the CMO in district court.

Judge Millett then asked whether, when Boumediene talks about ensuring that the habeas process affords the detainee’s attorney a meaningful opportunity to challenge the government’s case and the court a meaningful opportunity to review the grounds for detention, is that based in the Suspension Clause or a Mathews v. Eldridge balancing in association with the Due Process Clause?

Hinshelwood replied that the court in Boumediene noted that, even if the procedures complied with due process, that would not end the inquiry under the Suspension Clause. This suggests that the Suspension Clause might require more in certain instances. Boumediene also noted that the Suspension Clause was in the Constitution before the enactment of the Bill of Rights and the Due Process Clause.

However, Judge Pillard responded by saying the Due Process Clause was a codification of procedural basics that were fundamental at the time that habeas corpus was included in the Constitution. She went on to ask what touchstones the court should look toward. Is there going to be a whole new set of habeas corpus procedural requirements that are separate from, and parallel to, due process in order to fulfill the premise of Boumediene that defendants must have an ability to test the evidence against them, have access to exculpatory evidence and have a meaningful adversary process?

Hinshelwood replied that, in the 10 years since Boumediene, the question has been, what does meaningful opportunity within the confines of habeas mean? The Due Process Clause is separate.

Judge Pillard then asked, if the court assumes CIPA has been functioning consistently with due process, what are the materially inadequate procedures that form the government’s perspective vis-a-vis the case management procedures with the Guantanamo cases? Are they really materially different? Hinshelwood said that while Al Odah draws an analogy between the two, there might be some differences in what gets disclosed to a detainee. This court, however, has considered those procedures adequate in criminal proceedings.

Judge Millett then asked how would detainees be treated if they were held in a military brig in the United States. Would they get CIPA procedures? The defense’s whole assumption, she noted, is that there is a gap between the meaningful opportunity to challenge and review detention under the Suspension Clause per Boumediene and what the Due Process Clause requires. It is unclear how much turned on the petitioner being detained at Guantanamo instead of in the United States.

Hinshelwood responded that it is not the government’s position that there is a gap. He reiterated that due process does not apply at Guantanamo, but he was not sure where there was any difference between the procedures required by the Suspension Clause and the procedures required by the Due Process Clause. He could not describe in the abstract how the Due Process Clause would apply with respect to hypothetical detainees held in the United States. That question did not need to be reached because of Kiyemba. Hinshelwood closed by noting that it’s not clear where the purported due process violations occurred in Qassim’s case.

The court then went into a closed session in which they could discuss classified material.

Patrick McDonnell is a graduate of Harvard Law School and the Princeton School of Public and International Affairs. Previously he spent five years as an Army intelligence officer with deployments to Europe and Afghanistan. The views expressed here are his own and do not reflect those of any agency or department of the United States Government.

Subscribe to Lawfare