[00:00:01] Speaker 02: Case number 17-5067, Moth Hamaza, Ahmad Al-Awi, Appellant, versus Donald J. Trump, President, and Al. [00:00:12] Speaker 02: Mr. Kassim for the Appellant, Ms. [00:00:14] Speaker 02: Carson, the Appellees. [00:00:26] Speaker 01: Thank you, Chief Judge Garland. [00:00:28] Speaker 01: Good morning, Your Honors. [00:00:31] Speaker 01: May it please the court, my name is Ramzi Qasem of Main Street Legal Services, Inc. [00:00:35] Speaker 01: at the City University of New York School of Law, appearing for Mr. Muaz Alawi, a captive of Guantanamo Bay with me at council table, is my colleague John Connolly of the law firm of Zuckerman Spader LLP. [00:00:47] Speaker 01: With the court's permission, I'd like to reserve five minutes for rebuttal. [00:00:52] Speaker 01: Mr. Ali has been in U.S. [00:00:53] Speaker 01: custody at Guantanamo more than 16 years, and he faces the prospect of lifelong non-criminal detention. [00:00:59] Speaker 01: The government claims limitless authority to detain him for as long as it deems necessary, despite the fact that the Supreme Court viewed these wartime detentions as temporary and non-punitive. [00:01:09] Speaker 01: The question presented is whether in our constitutional system of government there is any limit, either statutory or constitutional, [00:01:16] Speaker 01: on the executive's authority to detain Mr. Alby, potentially for life. [00:01:20] Speaker 03: We submit that because the practical circumstances of past conflicts... Is the way you... I mean, hasn't the Supreme Court at least on one occasion anticipated that detention will last for a generation even longer, given the unusual nature of these conflicts? [00:01:36] Speaker 01: Your Honor, the Supreme Court has noted the unusual and rather unparalleled nature of this conflict in both Hamdi and Boumediene. [00:01:45] Speaker 01: But let's start with Hamdi. [00:01:47] Speaker 01: There, in the plurality opinion, the court clearly anticipated a conflict so unlike previous conflicts, so unlike past wars that informed the development of the law of war, that at some point in time, the judiciary would have to step back in. [00:02:00] Speaker 03: The only point I'm making, you'll acknowledge, won't you, [00:02:03] Speaker 03: that in Boomedin and in Humvee, I believe, the court actually used that language, anticipating that imprisonment may last for the generation, right? [00:02:16] Speaker 03: So I'm just focusing on the length of the imprisonment. [00:02:19] Speaker 03: Now, I understand your argument that things have changed. [00:02:22] Speaker 03: Perhaps a new type of battle, new type of conflict. [00:02:26] Speaker 03: But I'm deceasing upon your point that it's supposed to be temporary. [00:02:30] Speaker 03: The court has recognized that under certain circumstances, it may be a very, very long time, a generation. [00:02:38] Speaker 03: Isn't that right? [00:02:39] Speaker 03: Your Honor, let me call a... Isn't that right? [00:02:42] Speaker 03: Haven't they said that? [00:02:43] Speaker 01: Well, you're on what they said, and let's start with Justice O'Connor and Hamdi. [00:02:47] Speaker 01: Justice O'Connor took Hamdi's objection to the lack of certainty regarding the date on which the conflict would end seriously. [00:02:55] Speaker 01: Justice O'Connor characterized that objection as not far-fetched, and it says, well, as of this date, we have not reached that point where detention authority may have unraveled due to the passage of time. [00:03:04] Speaker 01: But Justice O'Connor and Hamdi, the Supreme Court in Boumediene, clearly left the door open. [00:03:10] Speaker 03: And actually, the language in Boumediene... All I'm getting you to say is they used the phrase, could be a generation, right? [00:03:18] Speaker 01: That's correct, Your Honor, but their use of that phrase actually cuts in our favor. [00:03:21] Speaker 01: When you look to the language in Boumediene, the Supreme Court majority held, because our nation's past military conflicts have been of limited duration, it's been possible to leave the outer boundaries of war power undefined. [00:03:31] Speaker 01: But, and this is the language from Boumenjan, if, as some fear, terrorism continues to pose dangerous threats to us for years to come, the court might not have this luxury. [00:03:40] Speaker 01: The court would have to come back in and revisit the scope of AUMF detention authority, potentially read in a durational limit, either as a matter of statutory interpretation or as a matter of constitutional interpretation, Your Honor. [00:03:52] Speaker 01: And so the fact that you're pointing out that both the majority in Boumediene and the plurality in Hamdi recognize the unparalleled nature of this conflict is the very reason we are here before this court today to say that due to that fact, given the reality that the scenario Hamdi envisioned in 2004, that that scenario has come to pass today in 2018, [00:04:13] Speaker 01: that the scenario that Justice O'Connor viewed as not far-fetched, that the possibility of lifelong detention is even more concrete and present and palpable today in 2018 for Mr. Alwy, that at this point in time, the judiciary has to step back in. [00:04:29] Speaker 01: Because what the court said in Hamdi was that detention for life, for the purpose of interrogation, was not permissible. [00:04:35] Speaker 01: And it did give credence to the concern that was raised by Hamdi. [00:04:38] Speaker 03: For the purposes of interrogation, what about for the purposes of keeping somebody off the battlefield? [00:04:43] Speaker 01: Well, Your Honor, at this point in time, so let's focus on Hamdi. [00:04:48] Speaker 01: Hamdi acknowledged that there may come a point when detention authority may unravel if the conflict circumstances are so different from those of past conflicts. [00:04:57] Speaker 01: What Hamdi said was, well, in 2004, as of this date, quote unquote, we have not reached that point. [00:05:02] Speaker 01: What we would like to draw the court's attention to today in 2018 is that Mr. Ali remains at Guantanamo more than 16 years after he was taken into captivity, and that other practical circumstances of the conflict in Afghanistan indicate that this is a conflict unlike any others and that we have reached that point. [00:05:21] Speaker 03: If we disagreed with you on that, if we thought this was the same type of conflict just to [00:05:26] Speaker 03: maybe a different iteration of it, that your argument disappears, right? [00:05:30] Speaker 03: It's the same conflict. [00:05:31] Speaker 03: Because the Supreme Court has already anticipated there could be multigenerational imprisonment. [00:05:37] Speaker 03: Well, Your Honor. [00:05:39] Speaker 03: So your argument has to turn on that this is a fundamentally different conflict, right? [00:05:43] Speaker 01: Your Honor, but that ship has already sailed with respect. [00:05:46] Speaker 01: I mean, Boumediene recognized that this conflict was unparalleled due to its unprecedented duration in 2008, and here we are 10 years later. [00:05:53] Speaker 01: And so the Supreme Court on three occasions has stressed that the duration of the conflict is a relevant indicator for when [00:06:01] Speaker 01: the court should step back in and revisit detention authority. [00:06:03] Speaker 01: And Mr. Ali, we would respect- Duration alone? [00:06:05] Speaker 03: I thought your argument was that it had to be a different sort of conflict. [00:06:10] Speaker 03: It was the same conflict that happened, that started in 2001 and continued. [00:06:15] Speaker 03: It's the same conflict, just hypothetical. [00:06:17] Speaker 03: Same conflict. [00:06:18] Speaker 03: Duration means nothing. [00:06:19] Speaker 01: Well, Your Honor, our primary argument in fact assumes that it is the same conflict. [00:06:24] Speaker 01: So let's assume that the conflict that began in 2001 endures today in Afghanistan. [00:06:29] Speaker 01: That it's the one single continuing conflict. [00:06:31] Speaker 01: The importance of the passage of time and its relevance to detention authority has been stressed at three points by the Supreme Court. [00:06:39] Speaker 01: Now the Supreme Court says, well, twice by the Supreme Court and once by Justice Breyer in his statement accompanying denial of a certain Hussein in 2014. [00:06:47] Speaker 01: But what the Supreme Court is saying, look to the practical circumstances of the conflict, including duration. [00:06:52] Speaker 01: So the Supreme Court happened to highlight duration. [00:06:54] Speaker 01: That's not the only one. [00:06:56] Speaker 01: We're trying to draw the Court's attention both to the unprecedented duration of detention and of the conflict. [00:07:02] Speaker 01: Mr. Ali remains at Guantanamo 16 years in. [00:07:04] Speaker 01: His detention was supposed to be temporary. [00:07:06] Speaker 01: Hamdi quoted Winthrop that law of war detention is supposed to be non-criminal, non-punitive, and temporary. [00:07:12] Speaker 01: 16 years in, it's none of those things for Mr. Ali. [00:07:16] Speaker 01: And so that's the Supreme Court telling you to look to the duration of the conflict, look to the duration. [00:07:21] Speaker 04: What do we assume, continuing on this assumption that it's the same conflict, just long, what do we look to? [00:07:29] Speaker 01: So, Your Honor, the passage of time is one thing. [00:07:32] Speaker 04: Well, I understand there's a passage of time, but what body of law? [00:07:35] Speaker 04: So you say international law assumes a shorter period of time, but you haven't cited any international law for the proposition that after a long time, something changes. [00:07:47] Speaker 01: So Your Honor, the reason why this is murky as a matter of international humanitarian law is that international humanitarian law is very clear when it comes to international armed conflicts between two state parties. [00:08:02] Speaker 01: So there we have Geneva Convention 3 Article 118 for the detention of combatants, Geneva Convention 4 Article 133 for the detention of civilians. [00:08:10] Speaker 01: But when it comes to a non-international armed conflict, which [00:08:13] Speaker 01: Let's assume this conflict in Afghanistan today is a non-international armed conflict. [00:08:17] Speaker 04: I thought we were going to continue it along the way we were assuming before, that this is an international armed conflict, and that it's just a long one. [00:08:27] Speaker 04: Under those circumstances, what would we look to? [00:08:31] Speaker 04: So far, the courts only look to Geneva III. [00:08:34] Speaker 04: I take the point that maybe international law didn't contemplate this. [00:08:43] Speaker 04: But then we still need somebody of law to look to, OK, now what? [00:08:47] Speaker 01: Absolutely. [00:08:47] Speaker 04: Let me ask you that question. [00:08:48] Speaker 04: I have to say, none of your citations support the proposition that in a very long conflict, [00:08:55] Speaker 04: There's a different test. [00:08:56] Speaker 04: They don't say what the test might be, but they don't suggest another test. [00:09:00] Speaker 01: So, Your Honor, let me answer those questions. [00:09:02] Speaker 01: Again, we're assuming it's a single conflict, and even if it's morphed from an international armed conflict to a non-international armed conflict that's had different phases, it's still the same single continuing conflict. [00:09:12] Speaker 01: In non-international armed conflict, the reason why we don't have much clarity on the standards and procedures that would obtain is because the assumption of the framers of the Geneva Convention was that non-international armed conflicts would be domestic, internal conflict involving a state party and a non-state party. [00:09:28] Speaker 01: And so there, if you're detaining a member of a domestic rebel group, you would process that person through domestic law, using domestic procedures. [00:09:37] Speaker 01: And so that's the assumption of the framers of Common Article III of the Geneva Conventions. [00:09:41] Speaker 01: So what we would suggest is that in this context, where it's a non-international conflict, you have to look to not just common Article 3, but you have to look to domestic law. [00:09:52] Speaker 01: That's consistent with the international law of war. [00:09:55] Speaker 01: Now, domestic authority means, in this case, revisiting detention authority under the AUMF in keeping with what the Supreme Court tells us is appropriate at this point in time. [00:10:07] Speaker 01: We're not just resting our argument on the passage of time, Your Honor. [00:10:11] Speaker 01: The passage of time is one of the practical circumstances. [00:10:13] Speaker 04: I'm still left without a body of law to turn to. [00:10:17] Speaker 04: So when the Supreme Court interpreted the AUMF, they interpreted it as extending until the end of hostilities and the relevant conflict. [00:10:26] Speaker 04: If we continue on this hypothetical, assume it's the same relevant conflict, I understand there's a dispute about whether there's still hostilities. [00:10:34] Speaker 04: Assume there is, because that's part of this hypothetical. [00:10:38] Speaker 04: What tells us what to do when it gets very long? [00:10:43] Speaker 01: So, Your Honor, if we have reached this point in time where we're certainly [00:10:52] Speaker 01: Well, I guess another way to put it, Your Honor, is if not now, when? [00:10:55] Speaker 01: So let's set aside the question. [00:10:56] Speaker 01: Now you're asking me the question. [00:10:57] Speaker 04: I have to ask you the question. [00:10:59] Speaker 04: If I had the answer, I wouldn't be asking you the question. [00:11:02] Speaker 01: Yeah, well, Your Honor, we would look to, we would look to, well, let me first clarify how we reached this point. [00:11:11] Speaker 01: We reached this point because of the passage of time and because of the bilateral security agreement that defines the framework of this conference. [00:11:17] Speaker 04: I understand all that, but we are starting and you're free to [00:11:21] Speaker 04: argue that point as well. [00:11:22] Speaker 04: But I want to stick one point at a time, and the one point at a time was Judge Griffith's hypothetical and your acceptance of the hypothetical for purposes of the argument that we're in the same conflict, it's just really long and maybe perpetual, or at least looks like it right now. [00:11:36] Speaker 01: What body of law do we look to, is your question. [00:11:39] Speaker 01: Your Honor, the body of law that we look to is what habeas, what the suspension clause requires, what the due process clause require at this point in time. [00:11:47] Speaker 01: And again, that is in keeping with our domestic jurisprudence, and it's actually in keeping with international humanitarian law as well. [00:11:53] Speaker 04: So you're not pointing to me some body of international law. [00:11:56] Speaker 04: You want us to look here at this point at domestic law. [00:11:59] Speaker 01: We're actually arguing, Your Honor, that the two bodies of law are congruent on this point. [00:12:03] Speaker 01: International humanitarian law tells you that for the detention of civilians, because there are no combatants in non-international armed conflicts, there are only civilians, for the detention of someone like Mr. Ali in a non-international armed conflict, [00:12:16] Speaker 01: You have to look to the reasons both for the initial detention and the continuing detention. [00:12:23] Speaker 01: So you have to assess whether detention today serves the purpose of keeping Mr. Ali off the battlefield today, not just back in 2001. [00:12:30] Speaker 01: That's IHL. [00:12:31] Speaker 01: That's actually consistent with domestic law. [00:12:34] Speaker 01: We're contending that due process and the suspension clause requires the court. [00:12:39] Speaker 04: We did decide initially that he was a combatant. [00:12:46] Speaker 04: Under those circumstances, your argument is he's no longer a combatant, that something has turned him into a civilian, the length has turned him into a civilian. [00:12:52] Speaker 04: Is that the nature of the argument? [00:12:54] Speaker 01: Sir, let me clarify one thing. [00:12:57] Speaker 01: The finding of this court in 2011 was that he was detainable as an enemy combat under U.S. [00:13:03] Speaker 01: law. [00:13:04] Speaker 01: The international humanitarian law understanding in a non-international armed conflict is different. [00:13:09] Speaker 04: You told me to apply domestic law. [00:13:11] Speaker 01: Yeah. [00:13:11] Speaker 04: And we've decided already that he was an unlawful combatant. [00:13:15] Speaker 01: And Your Honor, this case does not seek to relitigate that finding, right? [00:13:18] Speaker 01: So that finding was about Mr. Ali's original detention, whether the government had the authority to detain him initially. [00:13:25] Speaker 01: This case asks whether today, in 2018, 16 years into that detention, detention remains lawful. [00:13:30] Speaker 04: So it's a different question. [00:13:41] Speaker 01: Forgive me for muddying the waters, Your Honor. [00:13:43] Speaker 01: I was just trying to make a minor technical point that the international humanitarian law of non-international armed conflict does not recognize combatants. [00:13:50] Speaker 01: There is no such thing as a combatant. [00:13:53] Speaker 01: But that may be an academic point. [00:13:55] Speaker 01: We don't need to show that he's a civilian in order to prevail. [00:13:58] Speaker 01: What we need to show, Your Honor, is that his detention today is no longer lawful under the EUMF. [00:14:02] Speaker 01: or if the AUMF is construed to permit indefinite detention for Mr. Alwy, continuing detention, that that construction of the AUMF is unconstitutional. [00:14:12] Speaker 04: I'll just one second. [00:14:12] Speaker 04: Unconstitutional under substantive due process. [00:14:15] Speaker 01: Your Honor, under substantive due process or in the alternative, procedural due process requires remand with stronger protections. [00:14:21] Speaker 04: Let me pause with both of those. [00:14:22] Speaker 04: I looked at the arguments that were raised. [00:14:24] Speaker 04: I noticed that the district court did not address either argument, neither substantive due process nor procedural. [00:14:31] Speaker 04: And I looked at your habeas petition, which, you know, recites the normal rule held in – which is statutorily required, held in violation of the Constitution and laws. [00:14:41] Speaker 04: But the argument in it is that it extends beyond the authorization for the use of military force, and it extends beyond customary international law and the convention against torture. [00:14:53] Speaker 04: And there's no mention of either procedural or substantive due process. [00:14:57] Speaker 04: And in your opposition to the government's argument, you say, again, I mean, the closest you come is to say, even where the court to determine the relevant conflict endures, Mr. Alwey's indefinite imprisonment is unlawful. [00:15:14] Speaker 04: But you don't, in the next, in the two paragraphs on that subject, you do not address any constitutional argument, any substantive or procedural due process. [00:15:26] Speaker 04: And likewise, your only other argument is that he retains his rights under customary international law. [00:15:32] Speaker 04: So I'm asking whether we are now not facing an argument that was not raised before the district court. [00:15:38] Speaker 01: Your Honor, we argued below that the duration of the war and of his detention undermines the government's statutory authority. [00:15:45] Speaker 01: I can point you, but at oral argument, I can also point you to the section of the joint. [00:15:49] Speaker 04: Hold on, let's hold on. [00:15:50] Speaker 04: So you agree on the papers. [00:15:52] Speaker 04: I haven't missed something. [00:15:53] Speaker 04: There's no reference substantive or procedural to process in the papers. [00:15:57] Speaker 01: So yeah, that's correct, Your Honor. [00:15:59] Speaker 01: Hold on one second. [00:16:01] Speaker 04: Let me now find a lot of appendices here. [00:16:11] Speaker 04: I also couldn't find it, but it was longer, so maybe you can tell me where it is. [00:16:15] Speaker 04: Where is the reference? [00:16:16] Speaker 01: So, Your Honor, for example, at oral argument below, we asked whether – and this is at Joint Appendix 1327-1328. [00:16:22] Speaker 01: Right. [00:16:23] Speaker 01: I'm on those pages, right? [00:16:25] Speaker 01: We asked whether there should be a limit to detention under the authorization for use of military force or a constitutional limit to detention," end quote. [00:16:34] Speaker 01: And that flows from the section of our opposition to the government's motion to dismiss that you identified earlier, Chief Judge Garland. [00:16:41] Speaker 04: But where is a description of what the constitutional limit is? [00:16:51] Speaker 01: So, Your Honor, we need not – we're entitled to explain on appeal that not adopting the interpretation of the AUMF, we urge, would require resolution of a weighty constitutional issue. [00:17:02] Speaker 01: In other words, our presentation of the argument need not match. [00:17:05] Speaker 04: I understand the avoidance argument, and I'm not suggesting that that's been forfeited, but that's still only a statutory interpretation of the question. [00:17:17] Speaker 04: I take it it sounds from your brief you also want us to hold that if we don't agree with you on the construction argument that it is a violation of substantive due process and that argument I'm afraid I just don't I don't find it citation to any substantive due process case I don't find a reference to the chocolate conscious test I don't find anything that would alert [00:17:42] Speaker 04: The district court, this is an issue and apparently the district court didn't see it that way because the district court didn't rule on it. [00:17:48] Speaker 04: The government didn't file any oppositional papers with respect to the shock, the conscience test or procedural due process. [00:17:55] Speaker 01: Your Honor, we certainly tried to raise it and to explain it in our argument as an argument about constitutional limit to detention. [00:18:04] Speaker 01: Obviously, we don't control what the district court decides to spend ink on in a decision, but ultimately... But you do control what you impose. [00:18:15] Speaker 04: intend to expand, trying to think of the opposite of ink, voice. [00:18:20] Speaker 04: And I don't see it in the hearing. [00:18:21] Speaker 04: I don't see the word substantive due process. [00:18:24] Speaker 04: I don't see any case citations. [00:18:28] Speaker 01: So Your Honor, let me try to address this in a different way. [00:18:35] Speaker 01: Under Yvie Escondido, we aren't required to present the argument in exactly the same way. [00:18:40] Speaker 01: And Your Honor, Yvie Escondido also holds that in cases arising from federal courts, the rules having to do with forfeiture are prudential only. [00:18:50] Speaker 01: And we would submit that if this court's view is that some of the arguments, for example pertaining to procedural due process, [00:18:58] Speaker 01: are forfeited, that this court can still, in its discretion, in the interest of justice, to avoid an exceptional outcome for Mr. Ali or a patent injustice for Mr. Ali, this court can still decide the issue. [00:19:14] Speaker 01: And in fact, that's what Boumediene did when, instead of remanding the question whether the CSRTs were an adequate substitute for habeas, Boumediene decided to take it on in the first place because [00:19:25] Speaker 01: The costs of delay should not be borne by the detainees, were the words in Boumediene. [00:19:30] Speaker 01: And we would submit that 16 years into Mr. Ali's detention, he should not be made to bear the costs of delay. [00:19:37] Speaker 01: The court, in its discretion, can address the arguments that have been raised on appeal. [00:19:41] Speaker 01: If the court decides, because the arguments were forfeited in its view, to remand for adjudication below, then that's just going to spell years-long delay for Mr. Alwy. [00:19:51] Speaker 01: The issues will eventually work their way back up to this court. [00:19:54] Speaker 01: Inevitably. [00:19:54] Speaker 01: That's been the history of this litigation. [00:19:56] Speaker 01: And so we would submit again, Your Honor, this is a prudential rule that the court can depart from. [00:20:01] Speaker 01: And let me point out that the government has only argued that we forfeited our procedural due process arguments. [00:20:07] Speaker 01: They haven't argued forfeiture more broadly. [00:20:09] Speaker 01: Certainly the court can take a different position. [00:20:12] Speaker 01: But again, the rule is prudential. [00:20:14] Speaker 01: And in this case where injustice may result... Let me ask a question. [00:20:20] Speaker 05: Let's assume you didn't forfeit it. [00:20:22] Speaker 05: Why don't our two decisions in Albahani [00:20:25] Speaker 05: and Al Oda, in which we rejected heightened due process, answer your claim. [00:20:34] Speaker 01: So, Your Honor, for a number of reasons. [00:20:38] Speaker 01: The procedural challenge in Al Bihani, for example, was different. [00:20:42] Speaker 01: Bihani took issue with the fact that habeas procedures did not match those for review of criminal proceedings. [00:20:50] Speaker 01: We today do not seek parity with review of criminal proceedings. [00:20:54] Speaker 01: Moreover, Your Honor, time, again, and this is our argument, time alters the calculus. [00:20:59] Speaker 01: So just because Bihani failed on a procedural challenge under very different factual circumstances in 2009, 2010, does not mean that Mr. Alwi today should fail. [00:21:11] Speaker 01: Our argument is that with the passage of time, given what the Supreme Court has already said in Hamdi, in Boumediene, in Hussein, [00:21:19] Speaker 01: There needs to be more robust, habeas review, lest the AUMF be taken to justify lifelong detention in a way that would be unprecedented, both under our own domestic case law and under international humanitarian law, which was devised that the law of war was devised as a limit to detention, not to permit lifelong detention. [00:21:39] Speaker 03: I want to go back to the duration point. [00:21:42] Speaker 03: I'm going to read you a short sentence or two from our decision in Ali versus Obama in 2013. [00:21:48] Speaker 03: And tell me, I must be missing something according to your argument. [00:21:53] Speaker 03: We wrote, we are of course aware that this is a long war with no end in sight. [00:22:00] Speaker 03: But the 2001 AUMF does not have a time limit. [00:22:05] Speaker 03: and the Constitution allows detention of enemy combatants for the duration of hostilities. [00:22:12] Speaker 03: Now, the line of questions that both Chief Judge Garland and I were asking assumed that this is the same conflict. [00:22:20] Speaker 03: Haven't we already said that time doesn't work [00:22:24] Speaker 03: the change that you're urging us to work here. [00:22:28] Speaker 03: Haven't we already resolved this issue? [00:22:30] Speaker 03: Wouldn't we have to, in fact, overrule what we said in Ali versus Obama? [00:22:34] Speaker 01: So Judge Griffith, the language that you've just quoted from Ali versus Obama is clearly dicta. [00:22:41] Speaker 01: The petitioner in Ali did not argue that the duration of his detention violated due process or was otherwise unlawful. [00:22:47] Speaker 01: He did not argue the constitutionality of procedures. [00:22:51] Speaker 01: The only issue in Ali, the only issue, was whether Ali's brief presence in a guest house, standing alone, was itself sufficient to justify the situation. [00:22:59] Speaker 03: But you recognize that that language, that language, Your Honor, that language is a significant barrier to your argument. [00:23:05] Speaker 01: I do not. [00:23:06] Speaker 01: I do not, Your Honor. [00:23:07] Speaker 01: That language is there. [00:23:08] Speaker 01: I definitely recognize there. [00:23:10] Speaker 01: I definitely recognize that the language is there. [00:23:11] Speaker 03: But your avoidance is that it's dicta, right? [00:23:13] Speaker 01: It's dicta. [00:23:14] Speaker 01: It does not foreclose consideration of the issue by this panel, because when you look at the record in Ali, when you look at argument, when you look at the briefs, and I've spoken to counsel in that case, the argument was never raised, briefed, or argued in any way, shape, or form. [00:23:27] Speaker 01: And therefore, for whatever reason, the panel decided to include that language, but it does not foreclose consideration of the issue by this panel. [00:23:34] Speaker 04: You said, I think at least twice in your papers below that you weren't disputing for purposes of this case, the findings in the previous case. [00:23:44] Speaker 04: Is that right? [00:23:46] Speaker 01: Your Honor, we aren't disputing the findings in the previous case, but what we are saying is that at the very least, at this point in time, on remand, if this Court were to decide that at least remand is appropriate, that there has to be a more fulsome, habeas review process that looks to, that re-evaluates that initial determination on a stronger set of procedural protections. [00:24:07] Speaker 04: You haven't made the argument that you could get relief [00:24:11] Speaker 04: We use, for example, a clear and convincing evidence standard. [00:24:16] Speaker 01: Let's assume, so assuming hypothetically that the court were to remand for reconsideration, applying clear and convincing evidence as a standard, right? [00:24:23] Speaker 01: So at that point, the question being asked is a broader question. [00:24:26] Speaker 01: It's both the original reason for detention, so what was evaluated by the court up until 2011, and continuing reason for detention. [00:24:34] Speaker 01: Does detention still serve its purpose today? [00:24:37] Speaker 04: But even if the record were limited, even- Let me ask you to leave the second part aside, because that involves a separate legal question. [00:24:44] Speaker 04: Okay. [00:24:44] Speaker 04: On the factual question of whether he satisfies the requirements, you haven't argued that if he used a clear and convincing rather than preponderance test that the result would come out differently. [00:24:57] Speaker 01: Your Honor, we, so let me clarify that here. [00:25:01] Speaker 01: If the same record that has if on remand a court were to consider the exact same record, applying a clear and convincing evidence standard, applying stronger procedural protections, I do believe even if it's just a clear and convincing evidence standard, that is a more critical review [00:25:17] Speaker 01: of a body of evidence that includes admissions and interrogations under questionable circumstances reflected by triple or sometimes quadruple hearsay, I think a court applying that sort of critical lens to the record that exists in this case may well come out differently. [00:25:36] Speaker 01: Now, I can't guarantee that, but I do... I'm just having... [00:25:41] Speaker 04: We have to raise a significant number of arguments that you didn't raise below in order to get us to the point that it would make sense to send it back on that question. [00:25:52] Speaker 04: Even assuming that you were right on the answer to that question, none of these arguments were presented below. [00:25:57] Speaker 04: No argument that you would come out differently. [00:26:00] Speaker 04: Instead, the papers below say that we're not disputing this for the facts for purposes of [00:26:07] Speaker 04: Appeal that we're not disputing it for purposes of the habeas seems like Posturing the case differently than it was postured before [00:26:17] Speaker 01: Your Honor, there was simply no reason for us to discuss remand with the district court. [00:26:22] Speaker 01: We were trying to make the argument to the district court that detention authority had lapsed either as a statutory matter or as a constitutional matter, or that the relevant conflict had ended, because Hamdi speaks of the relevant conflict. [00:26:36] Speaker 01: Those were the arguments we were presenting. [00:26:37] Speaker 01: There was no cause, obviously, to discuss. [00:26:39] Speaker 04: what might happen on remand with the district court, but it's... There was cause to ask the district court to apply a clear and convincing evidence standard for the same reason you're asking us to apply a clear and convincing... For the same reason you're asking us to remand to the district court to apply a clear and convincing evidence standard. [00:26:55] Speaker 01: Yeah, Your Honor, we are trying to explain that if our primary argument fails in the court's view and the court does not believe that there's a statutory limit to detention authority or constitutional limit, then at the very least, habeas at this point in time and the due process clause requires [00:27:13] Speaker 01: more robust habeas review. [00:27:16] Speaker 01: And that's again consistent with what Boumediene has said looking to Matthews v. Eldredge, it's consistent with what Hamdi has said looking to the same due process case that habeas review has to become more searching with the passage of time as the duration of detention stretches. [00:27:29] Speaker 01: Again, we're talking about Mr. Alwi who has been at Guantanamo for over 16 years in a detention that is supposed to be again non-punitive and temporary. [00:27:37] Speaker 01: That is absolutely outrageous. [00:27:40] Speaker 01: What turns the law of war on its head is not our position in this case, Your Honor, it is the position of the government that somehow it's appropriate to continue to detain Mr. Ali at Guantanamo even though former law of war detainees who were charged and convicted as war criminals before the military commissions now walk free. [00:27:58] Speaker 01: We're not contending that that's inappropriate. [00:28:00] Speaker 01: They've served their sentences. [00:28:02] Speaker 01: But how does it make sense for purgatory to be worse than hell? [00:28:04] Speaker 01: How does it make sense for Mr. Ali to remain at Guantanamo as a law of war detainee who's not accused of war crimes, while men walk free who are convicted war criminals? [00:28:14] Speaker 01: Certainly the court has to step back in. [00:28:16] Speaker 01: Of course, Congress could have done something about it. [00:28:17] Speaker 01: Maybe the executive could have done something about it. [00:28:19] Speaker 01: But they haven't. [00:28:20] Speaker 01: And Mr. Ali remains there after 16 years. [00:28:23] Speaker 01: So at this point, someone has to put an end to the plight of men like Mr. Awi at Guantanamo. [00:28:28] Speaker 01: There aren't many of them left. [00:28:29] Speaker 01: We're only talking about 31 men here. [00:28:31] Speaker 01: There's 41 left at Guantanamo. [00:28:33] Speaker 01: Ten of them are in the military commission system, so the court can't step in there because of councilman, you know, because of councilman comedy. [00:28:41] Speaker 01: But for Mr. Awi, who's been there for over 16 years, [00:28:45] Speaker 01: Certainly, habeas must mean more than just a determination on a preponderance of the evidence standard that would govern a slip-and-fall case based on stale evidence. [00:28:55] Speaker 01: Certainly, our constitution requires more to maintain this man at Guantanamo on an ongoing basis, potentially for the rest of his natural life. [00:29:22] Speaker 06: Good morning. [00:29:23] Speaker 06: May it please the – Sonja Carson for the government. [00:29:26] Speaker 06: The United States is still fighting the same terrorist groups that Al-Ali joined in the same country where he served them because they continue to attack. [00:29:34] Speaker 06: Two presidents have accordingly determined that the United States remains engaged in active hostilities. [00:29:39] Speaker 06: And under this court's decision in al-Bahani and the long line of Supreme Court cases that preceded it, that assessment is entitled to deference. [00:29:46] Speaker 06: Now, the court still has a meaningful role to play in assessing the lawfulness of detention under the AUMF. [00:29:52] Speaker 06: It can determine, of course, whether the AUMF is a lawful exercise of Congress's power. [00:29:57] Speaker 06: It can determine, and it has determined here, whether an individual petitioner is an enemy combatant. [00:30:02] Speaker 06: And it may, of course, decide whether the political branches have answered the political question, whether active hostilities continue. [00:30:10] Speaker 04: But what if... [00:30:14] Speaker 04: The facts could be proven, I don't know, by satellite pictures, that there is not a single American soldier in Afghanistan, not one, and that no American soldiers are involved in hostilities by any definition. [00:30:31] Speaker 04: This is a complete hypothetical, all right. [00:30:34] Speaker 04: But the President continues to say there are hostilities, and perhaps for the purpose of being able to continue to detain the people. [00:30:42] Speaker 04: Would we be able, under those circumstances, to say those are not the facts, those are not the true and objective facts, and therefore the hostilities end? [00:30:51] Speaker 06: So I have two responses, Your Honor. [00:30:53] Speaker 06: Of course, it is the nature of the political question doctrine that the inquiry ends once a court has determined whether or not the political branches have answered the political question. [00:31:03] Speaker 06: And so I think the first response in your case would be that because the president [00:31:07] Speaker 06: and will say in the absence of contrary action by Congress, although in Albahani that consideration too would be relevant, I think the court's inquiry under the political to question doctrine might well stop. [00:31:19] Speaker 06: However, of course, the Supreme Court in Ludecky reserved the question whether a war that was formally kept alive had in fact ended and explained that it might well at some point confront that question, but it did not that day, and this court does not today. [00:31:35] Speaker 06: Dozens of American service members have died. [00:31:38] Speaker 04: So you're not saying that under those circumstances we could not resolve the question. [00:31:44] Speaker 04: You're saying that, as in Ledecky, that we don't need to resolve that question and we don't certainly don't need to decide it until we absolutely need to decide. [00:31:54] Speaker 06: So I think that's a fair characterization, Your Honor. [00:31:56] Speaker 06: My point is simply that we don't take issue with the question that the Supreme Court reserved in Ludecki. [00:32:01] Speaker 06: Ludecki remains the law. [00:32:03] Speaker 06: It is the basis for this court's decision in Albahani, which we rely on here. [00:32:09] Speaker 06: But the point of the political question doctrine is that when the Constitution commits a question to the political branches alone and the political branches provide an answer, [00:32:20] Speaker 06: That answer ordinarily is conclusive, and that is the circumstance that we have here. [00:32:26] Speaker 06: The rule that petitioner seeks would have dramatic ratifications not only for his own detention, but potentially for the detention of, as he says, 31 other Guantanamo detainees, [00:32:39] Speaker 06: for the conduct of ongoing military operations abroad, for our relationships with international partners, and of course for this Court's rule that a decision of a prior panel binds future panels unless and until it is overruled by the Anbanq Court or the Supreme Court. [00:32:55] Speaker 06: Now let me say, it is not our hope to detain Mr. Al-Alawi indefinitely, but it is not entirely up to us. [00:33:03] Speaker 06: al-Qaida and the Taliban continue to attack U.S. [00:33:06] Speaker 06: service members in Afghanistan. [00:33:09] Speaker 06: And the executive has determined that Mr. al-Awli continues to pose a significant threat to U.S. [00:33:17] Speaker 06: national security, and it is for that reason that his continued detention remains necessary. [00:33:23] Speaker 06: As Mr. Kassim explained to the court, there is no question here that Mr. Al-Awli has been adjudicated to be a member of the groups against whom active hostilities continue. [00:33:35] Speaker 06: The AUMF authorizes detention for the duration of active hostilities, and that is sufficient to dispose of this case. [00:33:43] Speaker 04: Can I ask you why there's no reliance on the NDAA? [00:33:49] Speaker 06: Pardon me? [00:33:50] Speaker 04: The provisions of the National Defense Authorization Act, which... Yes, which reaffirms detention authority under the AOA. [00:33:57] Speaker 04: Yes, but you don't... You spend a lot of time on Hamdi, and you don't really rely on the provision of the Act which permits detention until the end of the hostilities. [00:34:13] Speaker 04: Is that because you think that the NDAA only applied to 2012 or was this provision of an authorization act that was permanent? [00:34:23] Speaker 06: Your Honor, my understanding is that the provision is permanent, and we, of course, rely on it. [00:34:28] Speaker 06: Indeed, Judge Griffith, you were discussing Boumediene earlier, and there the court explained that the political branches can engage in debate about how best to preserve constitutional values while protecting the nation from terrorism. [00:34:41] Speaker 06: If anything, the 2012 NDAA is an example of just that debate, and it reaffirms that the AUMF [00:34:49] Speaker 06: permits detention for the duration of active hostilities. [00:34:54] Speaker 06: I think there can be no serious doubt here, and the petitioner has conceded that the fighting remains ongoing, that active hostilities endure, and thus the AUMF's detention authority authorizes Mr. Al-Ali's detention. [00:35:11] Speaker 03: How does the periodic review board go about making the determination that a detainee remains dangerous? [00:35:22] Speaker 06: So the Periodic Review Board procedure is set out in the Executive Order in 2011 and was reaffirmed in January of 2018 in Executive Order 13H23. [00:35:37] Speaker 06: Under the original Executive Order, which is 13567, Section 2, the PRB considers whether continued law of war detention is warranted. [00:35:46] Speaker 06: and it is warranted if it is necessary to protect against a significant threat to the security of the United States. [00:35:53] Speaker 06: Now, the detainee is free to submit a statement to the PRB, as Mr. El Alwi has done repeatedly here. [00:35:59] Speaker 06: He may be represented by a personal representative, representative, excuse me, by private counsel. [00:36:07] Speaker 06: He may call reasonably available witnesses. [00:36:09] Speaker 06: He may answer questions. [00:36:12] Speaker 06: And the PRB concluded [00:36:13] Speaker 06: including within the last year, as of July of 2017, that there remained no significant question that Mr. Al-Ali's continued detention is necessary to protect against a significant threat to U.S. [00:36:25] Speaker 06: national security, including in light of his continued extremist statements and the potential that he would be susceptible to recruitment by the same groups of which he was previously a member if he were to be released. [00:36:45] Speaker 06: I'm happy to discuss any other aspect of the case. [00:36:47] Speaker 06: As the panel's questions to Mr. Kossum, I think, illustrate, the due process clause is foreclosed by circuit precedent. [00:36:55] Speaker 06: And in any event, there's no reason to believe it would make any difference here. [00:37:02] Speaker 06: If the court has no further questions, we ask that the judgment be affirmed. [00:37:04] Speaker 04: I just want to give Judge Henderson a chance, because I can't see whether she's. [00:37:07] Speaker 06: Of course. [00:37:08] Speaker 05: Thank you, Judge Henderson. [00:37:10] Speaker 05: I'm OK. [00:37:10] Speaker 05: Thank you. [00:37:11] Speaker 04: OK. [00:37:11] Speaker 04: Thank you very much. [00:37:11] Speaker 04: Thank you. [00:37:13] Speaker 04: Is there time left? [00:37:16] Speaker 04: Well, you can actually have 12 because opposing counsel left that for you. [00:37:29] Speaker 01: The court's permission, I'd like to address these four points that just came up. [00:37:34] Speaker 01: But let me start with specifically forfeiture, the court's authority, or it's the necessity of deference, the PRBs and the National Defense Authorization Act. [00:37:45] Speaker 01: On forfeiture, Your Honor, I just want to point out that [00:37:49] Speaker 01: As Boumediene stressed, habeas avoids formalism. [00:37:54] Speaker 01: Habeas is supposed to be a flexible, adaptive remedy. [00:37:58] Speaker 01: The issues were briefed before this court. [00:38:01] Speaker 01: They are all issues of law. [00:38:02] Speaker 01: The government does not make an expansive forfeiture argument or made a narrow forfeiture argument. [00:38:06] Speaker 01: It would be perfectly appropriate for this court to resolve the issues of law that were fully briefed before it rather than send it back down because of a more formalistic problem that the court in its discretion [00:38:22] Speaker 01: can decide to opt out of it. [00:38:23] Speaker 01: It's only a prudential rule. [00:38:24] Speaker 01: And again, Boumediene illustrates perfectly that the court can do this because the Supreme Court itself in Boumediene did not remand to the D.C. [00:38:32] Speaker 01: Circuit on the adequacy of the CSRTs as a habeas substitute and made the decision itself. [00:38:36] Speaker 01: Which brings me to the periodic review boards, Your Honor. [00:38:39] Speaker 01: The government has not argued that the periodic review boards are a substitute for habeas. [00:38:44] Speaker 01: But certainly I just want to emphasize that this court should derive no comfort from the fact that there is an ongoing periodic review board process. [00:38:54] Speaker 01: It is odd that the government is here today before this court trying to make hay of the PRB process when in other cases where petitioners, other petitioners, [00:39:05] Speaker 01: brought the fact that they had been cleared by the periodic review boards to the attention of district judges. [00:39:10] Speaker 01: The government was the first to stand up and say that the PRBs are irrelevant to habeas. [00:39:14] Speaker 01: So surely this court cannot seriously entertain the notion that the PRBs are irrelevant unless their findings happen to coincide with the government's position. [00:39:24] Speaker 01: And I can go on all day about the deficiencies of the PRBs that make them [00:39:28] Speaker 01: in many ways worse than the combatant status review tribunals that the Boumediene Court rejected when I meet with my client to discuss his upcoming periodic review bill. [00:39:36] Speaker 04: I don't think it's necessary. [00:39:38] Speaker 04: I read the government's reference to this as an atmospheric response to your argument that he's really no threat, which is also not part of your substantive argument at this point. [00:39:52] Speaker 04: So I don't think either side is actually arguing about this question [00:39:56] Speaker 01: as an element of our ultimate... Well, Your Honor, even even even atmospherically, the PRB's findings, wherever they are, are completely unreliable. [00:40:04] Speaker 01: And the reality is the PRBs are a smokescreen. [00:40:06] Speaker 01: This Court should not draw any comfort from the fact that our client might get released through the PRB process because the infrastructure of release has been dismantled by this administration. [00:40:15] Speaker 01: There is no one in place negotiating for the release of men who have been cleared by the periodic review board. [00:40:19] Speaker 01: There are five men who sit cleared at Guantanamo today. [00:40:21] Speaker 01: The government has admitted as much. [00:40:23] Speaker 01: They filed a brief on February 16th before the district court admitting that nothing was being done to permit the transfer of cleared men. [00:40:32] Speaker 01: I can give you the reference. [00:40:33] Speaker 01: That's 04CV1194. [00:40:34] Speaker 01: The ECF number is 1126. [00:40:36] Speaker 01: That filing admits that the PRVs are essentially ineffectual. [00:40:41] Speaker 01: And they're no substitute for habeas. [00:40:44] Speaker 01: It's a group of PRB, of executive branch bureaucrats, who are answering a different question, whether someone poses a significant security threat, whatever that means. [00:40:51] Speaker 01: And again, they're answering that question arbitrarily and unreliably. [00:40:55] Speaker 01: But let me move on, Your Honor. [00:40:57] Speaker 01: On deference, very quickly, we argue in the alternative that, I mean, as our argument is structured in the brief, it should be clear that we do not concede that the relevant conflict is over. [00:41:10] Speaker 01: We've made the argument. [00:41:11] Speaker 01: in the alternative, so I just wanted to respond to opposing counsel characterizing our position as a concession. [00:41:19] Speaker 01: On the point of deference, the government relies on Ludecki v. Watkins, but really the more relevant and recent reference point is Hamdi. [00:41:27] Speaker 01: And in Hamdi, the court looked at the record in order to answer questions about the conflict that was ongoing in Afghanistan in 2004. [00:41:35] Speaker 01: and so it's perfectly appropriate for courts to look at records. [00:41:40] Speaker 01: The fact that Hamdi refers to a record assumes that there is a court to review that record and that's precisely what Hamdi did. [00:41:45] Speaker 01: Now the ongoing nature of the conflict in Afghanistan was not a central issue in Hamdi and so for that reason the court looked to a press conference statement, the court looked to some media articles and concluded that really there's no question that in 2004 there were active hostilities in Afghanistan. [00:42:02] Speaker 01: But it is the court's role to look at records. [00:42:05] Speaker 04: Do you object or dispute what I would describe narrowly as fact questions? [00:42:12] Speaker 04: How many soldiers are in Afghanistan? [00:42:14] Speaker 04: How many bombing runs there were? [00:42:16] Speaker 01: Things that are in the declaration. [00:42:18] Speaker 01: We don't dispute any of those. [00:42:19] Speaker 01: Yeah, we are not in a position to quibble with troop levels. [00:42:23] Speaker 04: But Your Honor, the... Or whether our troops are being fired on, or whether our troops are firing on other people, you're not disputing that. [00:42:28] Speaker 01: Your Honor, there is a shooting war in Afghanistan. [00:42:30] Speaker 01: It involves U.S. [00:42:31] Speaker 01: elements, but the United States, respectively, is involved in many armed conflicts where it does not have detention authority, including the current conflict in Afghanistan. [00:42:39] Speaker 01: If Mr. Ali was detained in Afghanistan today... Hold for one second. [00:42:43] Speaker 04: So, just so I'm clear, so really what you're objecting to is the characterization, you're disputing the characterization of the facts. [00:42:49] Speaker 04: That is, do those facts [00:42:51] Speaker 04: which are not disputed mean that this is a different war or a different conflict than it was before? [00:42:58] Speaker 04: Have I got your point correctly? [00:43:00] Speaker 01: Your Honor, under our alternative argument, we believe those facts paint a picture of a different conflict. [00:43:07] Speaker 01: But even under our primary argument, when you look to the bilateral security agreement and you see that if the United States were to capture Mr. Ali in Afghanistan today, he could not be held there. [00:43:16] Speaker 01: The US cannot run detention facilities in Afghanistan anymore as of January 1, 2015. [00:43:21] Speaker 01: The nature of U.S. [00:43:23] Speaker 01: involvement in Afghanistan is a significantly different practical circumstance of this conflict. [00:43:28] Speaker 01: It's different from the way the conflict looked in 2004 when Hamdi looked at it, and it's different from previous conflicts that informed the development of the law of war. [00:43:36] Speaker 01: Your Honor, the National Defense Authorization Act does not absolve the court of its responsibility to interpret the AUMF. [00:43:44] Speaker 01: The NDA affirms detention under the law of war, but that only really brings us back to Hamdi, because it is the court's remit to define legal detention authority under the law of war and under the AUMF that's not precluded by the political question doctrine. [00:43:59] Speaker 01: We're not here contesting the validity of a bombing sortie in Somalia under the AUMF. [00:44:06] Speaker 01: That's a matter of military discretion that is precluded by the political question doctrine. [00:44:10] Speaker 01: We're here challenging the validity, the legality of Mr. Ali's ongoing detention, and that is squarely within the ambit of what this court is supposed to do. [00:44:19] Speaker 01: And again, it is the AUMF, not the NDAA, that the government relies on as the basis for its authority to detain Mr. Ali. [00:44:29] Speaker 01: So, Your Honor, if there are no further questions, I would just like to point out that, again, the wartime detention that Hamdi contemplated was supposed to be temporary and non-punitive. [00:44:42] Speaker 01: For Mr. Alwey, 16 years at Guantanamo is neither. [00:44:46] Speaker 01: Had he been charged with providing material support under 2339A to terrorism, a conviction would have carried no more than 15 years in prison. [00:44:55] Speaker 01: He's now cleared his 16th year there. [00:44:57] Speaker 01: And so, [00:44:58] Speaker 01: for for this court to [00:45:03] Speaker 01: respectfully be overly formalistic and to insist on rules having to do with forfeiture when the issues are all issues of law that have been fully briefed would be a manifest injustice and it would impose the cost of delay on Mr. Ali because we'll be right back here a couple of years later litigating the same issues. [00:45:24] Speaker 01: So the issues have been briefed very ably by both sides hopefully I mean certainly by the government and hopefully by our side as well. [00:45:30] Speaker 04: It's very humble of you. [00:45:32] Speaker 01: But Your Honor, there's really no point in resting on those grounds to get rid of this case because, again, the court doesn't have to. [00:45:44] Speaker 01: Boumediene did not do that. [00:45:46] Speaker 01: This court has a discretion to rule on these issues. [00:45:48] Speaker 01: They're all issues of law. [00:45:50] Speaker 01: And so this court should simply not be the first to accept that detention under the AUMF [00:45:56] Speaker 01: For 16 plus years is consistent with our rule of law and a constitutional democracy surely against promise of habeas And surely our constitutions guarantee of due process, which we believe Extends to Guantanamo the same way that hate the suspension clause does the same way that Some members of this court have found that the ex post facto clause does you think we're not bound by Canva? [00:46:23] Speaker 01: Your honor, the holding in Khemba 1 is narrower. [00:46:29] Speaker 01: So the discussion there had to do with, I don't want to minimize, let me characterize Khemba 1 as accurately as I can. [00:46:37] Speaker 01: Khemba 1 had to do with [00:46:39] Speaker 01: the proposition that non-citizens detained by the United States outside of U.S. [00:46:44] Speaker 01: territory do not enjoy a liberty interest protected by the Constitution's due process guarantee that's sufficient to sustain a court order that they be released into the United States over the executive branch's objection. [00:46:56] Speaker 01: That was the issue in Canba. [00:46:57] Speaker 01: Those were the facts in Canba, making it a case essentially about executive control over immigration. [00:47:01] Speaker 01: Subsequent panels, including the panel in Canba 3, [00:47:04] Speaker 01: that reinstated the Kyemba 1 opinion but modified it. [00:47:08] Speaker 01: The way Kyemba 3 characterized the issue is more in line with what I just said. [00:47:12] Speaker 01: It characterized the issue as, quote, the right to be released into the United States, a constitutional right to be brought into this country and released. [00:47:20] Speaker 01: And even four justices of the Supreme Court, when they denied cert in Kyemba later in 2010, [00:47:26] Speaker 01: They also defined the issue narrowly as whether a district court may order the release into the United States where no other option is available. [00:47:33] Speaker 01: And so that really was the holding in Quiemba, Your Honor. [00:47:38] Speaker 01: It wasn't broader than that. [00:47:39] Speaker 01: It doesn't foreclose consideration of the issue by this pattern. [00:47:42] Speaker 01: When you look to cases like Al-Balool, [00:47:44] Speaker 01: that assumed without deciding that the ex post facto clause applied at Guantanamo. [00:47:48] Speaker 01: When you look to Armour, that again assumed without deciding that essentially substantive due process applied at Guantanamo because what it found, and Judge Griffith knows this well, what it found was the right to be free from unwanted medical treatment, which is traditionally a substantive due process inquiry. [00:48:04] Speaker 01: If QIAMBA 1 were as broad as the government contends and were that preclusive, it would have left no room for such judicial assumptions [00:48:11] Speaker 01: no room for even executive concessions, because in al-Bulul, the government conceded that the ex post facto clause applies. [00:48:18] Speaker 01: And so, Your Honor, I won't dispute that the ex post facto clause and the suspension clause, as both of you noted in al-Bulul, share constitutional real estate in Article 1, Section 9. [00:48:30] Speaker 01: They're two peas in a pod in that way. [00:48:32] Speaker 01: But habeas corpus in due process, having even longer history together. [00:48:36] Speaker 01: And naturally, both Hamdi and Boumaidien looked to due process. [00:48:41] Speaker 01: So at this point in time, we believe that it is appropriate for this court to revisit the question of detention authority looking to the due process entitlements of non-citizens in prison that Guantanamo because of how unique a place Guantanamo is. [00:48:56] Speaker 01: And the government hasn't disputed in its briefs [00:48:59] Speaker 01: our position that the same test that was rolled out by the Boumediene Court to determine the extraterritorial reach of the Constitution leads to the conclusion that the due process clause 2 reaches non-citizens detained at Guantanamo. [00:49:15] Speaker 01: The government has effectively conceded that by not disputing it in its briefs, Your Honor. [00:49:20] Speaker 01: And we think it's consistent, again, with assumptions that this Court has made and certainly with conclusions that members of this Court have drawn about the reach of the ex post facto clause for the same reason and what seemed to be an assumption about at least one substantive due process entitlement and honor. [00:49:37] Speaker 01: Rasul v. Myers is not to the contrary. [00:49:39] Speaker 01: That was a qualified immunity decision. [00:49:41] Speaker 01: I just wanted to address that quickly because it came up in the briefs. [00:49:46] Speaker 01: Thank you very much. [00:49:50] Speaker 04: We'll take the matter under submission.