Court Passes on Assigning Due Process Rights to Guantánamo Prisoners


A federal appeals court on Tuesday decided not to issue a landmark ruling about legal protections for noncitizens held at the Guantánamo Bay wartime prison. The decision, which opted to punt on the issue of due process rights for detainees, instead directed a lower court to take a new look at a 55-year-old Yemeni man’s case.

Abdulsalam al-Hela has been held at the American naval base in Cuba since 2004. Without resolving the due process rights question, the full court of appeals said that regardless of whether the clause applied to Mr. Hela, the so-called habeas corpus court hearing he had received was sufficient to allow his continued detention as an “enemy combatant,” even though two decades have passed since he was taken into custody.

The question of whether the Constitution’s guarantee that the government cannot deprive people of “life, liberty or property, without due process of law” applies to noncitizens detained at Guantánamo has been raised since 2002. If established this precedent could have far-reaching implications for terrorism detainees in American custody, covering matters from continued detention, medical treatment and even evidence gathered after torture.

The Trump administration had argued that the due process clause did not protect such detainees. When President Biden took office, his legal team was roiled by an internal debate over whether it should reverse that position. Ultimately, it pulled back from the Trump-era argument and took no position.

Despite being approved for transfer if a receiving country could fulfill security conditions, Hela cannot be repatriated to Yemen due to the country’s instability. Consequently, the court instructed the U.S. District Court for the District of Columbia to first determine whether President Biden had the power to keep holding an enemy combatant under a 2001 law.

The court held open a possible future question that could potentially raise the due process issue again: whether a finding by the interagency Periodic Review Board that Hela’s continued detention is no longer necessary makes any difference.

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Stephen I. Vladeck is a professor at the University of Texas Law School, specializing in topics such as the federal courts and national security. He said that the opinion from the court of appeals was modest as it had punted on making any broad conclusion about the due process clause, opting instead to resolve the case on narrower grounds. Through his analysis, Vladeck has provided insight into the implications of the decision, and has contributed to a much-needed understanding of the debate between the legality of detainment and the rights of noncitizens.