D.C. Circuit Review – Reviewed: En Banc Rehearing, a Rare D.C. Circuit Event
In my first post for Notice and Comment, let me begin by saying how grateful I am for the opportunity to join the D.C. Circuit Review – Reviewed team. I look forward to seeing what my fellow contributors have to say each week as we try to keep you up to date on the D.C. Circuit’s cases.
On that front, there are no opinions this week to report. But the Court was busy! On September 30, there was an en banc hearing in Al-Hela v. Biden, a case arising out of a Guantanamo detainee’s habeas petition. When en banc rehearing was granted, at issue was a question the D.C. Circuit has considered, but declined to resolve, many times: Whether the Due Process Clause applies to nonresident foreign nationals detained at Guantanamo. The now-vacated panel opinion had concluded no, with Judges Rao and Randolph reasoning that the Due Process Clause does not apply to nonresident foreign nationals outside of U.S. territorial jurisdiction. Judge Griffith’s concurrence reasoned that rather than categorically decide whether the Due Process Clause applies, the Court ought to rest its holding on a narrower ground: even if due process applied, Al-Hela’s due process rights had not been violated. The applicability of due process to Guantanamo detainees has been presented many times to the D.C. Circuit over more than a decade. Before the Al-Hela panel opinion, however, the D.C. Circuit had resolved such cases without a categorical ruling, generally by following an approach similar to Judge Griffith’s concurrence.
When the D.C. Circuit granted en banc rehearing, it seemed like a categorical answer from the full Court might be forthcoming. The ground has shifted then, however. The government has reversed position; it no longer argues that due process is categorically inapplicable (though still disputes any due process violation in the case). And the Periodic Review Board, a discretionary administrative process created by Executive Order, determined this summer that Al-Hela’s continued detention is not necessary to protect national security. Much of the argument therefore focused on another set of issues that are repeat players in Guantanamo cases, including questions of remedy and mootness when the government determines detention is no longer warranted, but there are practical hurdles to releasing a detainee, such as finding a country that will accept him.
Whatever the result, it is always a treat to listen to the en banc D.C. Circuit grapple with a case, which it did for over two hours this week. It is a rare treat, though, usually happening just once or twice a term, though the 2016-2017 term hit a high-water mark in recent years with four en banc arguments (followed by a year with none). There is a second en banc argument scheduled for October, so this year might be shaping up to be another outlier. As court observers, we can only hope!