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Qassim v. Trump

United States Court of Appeals, District of Columbia Circuit

September 17, 2019

Khalid Ahmed Qassim, Appellant
v.
Donald J. Trump, President of the United States, et al., Appellees

          Appeal from the United States District Court for the District of Columbia (No. 1:04-cv-01194)

         On Sua Sponte Suggestion for Rehearing En Banc

          Before: Garland, Chief Judge; Henderson [***] , Rogers, Tatel, Griffith, Srinivasan, Millett [**] , Pillard**, Wilkins, Katsas [*] , and Rao***, Circuit Judges.

          ORDER

          PER CURIAM.

         Following the issuance of the opinion in this case, a member of the court suggested sua sponte that the case be reheard en banc, see D.C. Circuit Handbook of Practice and Internal Procedures 59 (2018), and a vote was called. Thereafter, a majority of the judges eligible to participate did not vote to rehear this case. See Fed. R. App. P. 35(a). Upon consideration of the foregoing, it is

         ORDERED that the sua sponte suggestion for rehearing en banc be denied.

          Millett and Pillard, Circuit Judges, and Edwards, Senior Circuit Judge, concurring in the denial of rehearing en banc:

         With the greatest respect for our two colleagues who have dissented from the denial of rehearing en banc, we note that the court's opinion explains in detail its consistency with circuit and Supreme Court precedent, and principles of stare decisis. Furthermore, it is telling that the United States Government has not filed a petition for rehearing en banc in this case voicing any of the concerns that the dissenting opinion raises.

          Karen LeCraft Henderson, Circuit Judge, with whom Circuit Judge Rao joins, dissenting from the denial of rehearing en banc:

         The panel decision declares that whether the Due Process Clause of the Fifth Amendment applies to detainees at Guantanamo Bay is an open question. Qassim v. Trump, 927 F.3d 522, 524 (D.C. Cir. 2019). It is not. The United States Supreme Court has "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citing Johnson v. Eisentrager, 339 U.S. 763 (1950)). Because "[t]he Guantanamo Naval Base is not part of the sovereign territory of the United States," we recognized in Kiyemba v. Obama that Guantanamo Bay detainees are not protected by the Due Process Clause of the Fifth Amendment. 555 F.3d 1022, 1026 & n.9 (D.C. Cir. 2009) ("Decisions of the Supreme Court and of this court . . . hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States."), vacated by 559 U.S. 131 (2010), and reinstated as amended by 605 F.3d 1046 (D.C. Cir. 2010). Qassim thus marks a low point for this Circuit-not because it is incorrectly decided (although it undoubtedly is)-but because going forward no precedent, no matter how clear and on point, is settled under the doctrine of stare decisis. According to this new Circuit law, the way to deal with Supreme Court precedent that the panel finds uncomfortable is to disregard it, and the way to deal with like Circuit precedent is to treat its holding as dictum. Accordingly, I dissent from the denial of rehearing en banc.

         Khalid Qassim is detained at the Guantanamo Bay Naval Base and claims that "the government's use of undisclosed classified information as a basis for his detention" violates his right to due process under the Fifth Amendment to the United States Constitution. Qassim, 927 F.3d at 524. The district court held that under precedent, Guantanamo Bay detainees have no such right.[1] Id. at 527 ("The district court denied the motion in limine, reading this court's decision in Kiyemba as establishing that Qassim had no right to due process."). The panel reversed, stating that neither Kiyemba v. Obama nor "any other decision of this circuit adopted a categorical prohibition on affording detainees seeking habeas relief any constitutional procedural protections." Id. at 524.

         En banc review is appropriate if a panel decision creates an irreconcilable conflict with Supreme Court or Circuit precedent. Fed. R. App. P. 35(a)(1) ("An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless . . . en banc consideration is necessary to secure or maintain uniformity of the court's decisions."). Qassim does both.

         Qassim ignores controlling Supreme Court precedent. In Johnson v. Eisentrager, the Supreme Court held-in the clearest possible terms-that the Fifth Amendment does not apply to aliens outside the territory of the United States. 339 U.S. at 784-85 ("Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has ever hinted at it. The practice of every modern government is opposed to it." (internal citation omitted)). That indeed is exactly how two other Supreme Court decisions read Eisentrager. In United States v. Verdugo-Urquidez, the Court described Eisentrager's "rejection of extraterritorial application of the Fifth Amendment" as "emphatic." 494 U.S. at 269. And Zadvydas v. Davis declared:

It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. See United States v. Verdugo-Urquidez,494 U.S. 259, 269 (1990) (Fifth Amendment's protections do not extend to aliens outside the ...

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