[00:00:58] Speaker 02:
I'm just going to wait a minute for Judge Edwards.

[00:01:00] Speaker 07:
Absolutely.

[00:01:02] Speaker 07:
I was going to suggest a break anyway, but you're stronger than I am.

[00:01:07] Speaker 02:
We may have to take a break shortly, anyhow.

[00:01:41] Speaker 02:
If you're more comfortable, feel free to sit down until Mr. Edwards returns.

[00:01:43] Speaker 02:
I'm sorry, what?

[00:01:44] Speaker 02:
If you're more comfortable, feel free to sit down or stand until Mr. Edwards returns, whichever you're more comfortable.

[00:01:49] Speaker 07:
Thank you very much.

[00:02:14] Speaker 02:
Thank you.

[00:02:16] Speaker 07:
May it please the Court?

[00:02:18] Speaker 07:
I would like to reserve five minutes for rebuttal, if I might.

[00:02:21] Speaker 07:
I'd also like to start off by thanking the Court for holding the hearing today, despite the shutdown and despite the snow going on.

[00:02:28] Speaker 07:
And I'd like to thank Government Council for doing that, even though I think they're furloughed.

[00:02:34] Speaker 07:
This case is so important.

[00:02:36] Speaker 07:
The core issue on this appeal could not be more fundamental or more critical.

[00:02:41] Speaker 07:
both for my client's ability to obtain his freedom from potentially lifelong detention and also for restoring the court's historic constitutional role as a check against arbitrary executive detention.

[00:02:57] Speaker 07:
Last Friday marked the 17th anniversary of the opening of the Guantanamo Bay prison camp.

[00:03:04] Speaker 07:
The first cases challenging the regime at Guantanamo were brought about 16 and a half years ago.

[00:03:11] Speaker 07:
They asked for one thing, a fair hearing to determine whether it was a reasonable basis for the detentions.

[00:03:19] Speaker 07:
The district court here dismissed the case, and this court affirmed it on the grounds that these people, the detainees, were aliens without property or presence in the sovereign territory of the United States.

[00:03:32] Speaker 07:
As such, the court said that they had no constitutional rights, no rights under the U.S.

[00:03:37] Speaker 07:
statutes, and no rights to go to U.S.

[00:03:40] Speaker 07:
court.

[00:03:41] Speaker 07:
As you know, the Supreme Court reversed and resolved the push.

[00:03:45] Speaker 07:
It said that Guantanamo may be outside the sovereign territory of the United States, the technical sovereign territory.

[00:03:51] Speaker 07:
Nevertheless, it was within U.S.

[00:03:53] Speaker 07:
jurisdiction and that the detainees there are no less than U.S.

[00:03:56] Speaker 07:
citizens, American citizens, had the right to pursue habeas relief in the courts under the first habeas statute passed by the first Congress in the United States.

[00:04:07] Speaker 07:
Congress then revoked the habeas right – the habeas statute with respect to Guantanamo detainees.

[00:04:13] Speaker 07:
We went back to court and said that the right to habeas was constitutionally guaranteed.

[00:04:19] Speaker 07:
This court dismissed that case, said because they are aliens without property or presence in the United States, they have no constitutional rights, and the court was careful

[00:04:31] Speaker 07:
to say that you cannot distinguish the suspension clause from the Fifth Amendment due process clause in that regard.

[00:04:38] Speaker 07:
We went – the Supreme Court again accepted cert, and it again reversed.

[00:04:43] Speaker 07:
It said that – again, that Guantanamo may not be within the area of technical U.S.

[00:04:49] Speaker 07:
sovereignty, du jour sovereignty.

[00:04:51] Speaker 07:
It pointed out that the United States nevertheless exercised effective control over the area and was in the area of de facto U.S.

[00:04:59] Speaker 07:
sovereignty.

[00:05:01] Speaker 07:
It said that there was no basis for restricting the reach of the constitution to areas of de jure sovereignty.

[00:05:07] Speaker 07:
It said that doing so would be contrary to its precedence, citing the insular cases in which fundamental constitutional rights applied even in those areas controlled by the United States after the Spanish-American War, which were only to be temporarily controlled.

[00:05:25] Speaker 07:
It also found that restricting the reach of the constitution to areas of du jour sovereignty would really allow the government to switch – the executive branch to switch the constitution on and off on its own accord simply by manipulating the place of its detentions.

[00:05:44] Speaker 07:
The court found that that could not be allowed, and it found unequivocally

[00:05:49] Speaker 07:
that the detainees at Guantanamo, even though aliens outside the area of de jure sovereignty, were entitled to constitutional protection of the suspension clause.

[00:06:00] Speaker 07:
Following that case, there were a lot of habeas cases that went back to the court, and several of them were won.

[00:06:06] Speaker 07:
Then this court entered a series of decisions, most importantly the Quiemba decision, where it said that even though the people at Guantanamo may have the procedural right to habeas hearing,

[00:06:18] Speaker 07:
They have no constitutional right to due process of law in those hearings, again, because they are aliens without property or presence.

[00:06:25] Speaker 02:
Well, that's not what CAMBA held.

[00:06:27] Speaker 02:
I'm sorry.

[00:06:28] Speaker 02:
That's not what CAMBA said or held.

[00:06:30] Speaker 02:
What CAMBA said or held with respect to due process clause.

[00:06:33] Speaker 02:
The CAMBA, the petitioners there, had actually been granted a right of habeas corpus, and the only

[00:06:42] Speaker 02:
issue with respect to the Due Process Clause was remedy, remedial.

[00:06:47] Speaker 02:
They'd already been granted it.

[00:06:48] Speaker 02:
The procedures that they were entitled to were not an issue.

[00:06:51] Speaker 02:
And the question was whether the Due Process Clause supported a claimed remedy of release into the United States.

[00:07:02] Speaker 02:
And so that's a very particularized holding in which Cayamba made that Due Process Clause statement.

[00:07:12] Speaker 02:
holding of this court that the due process clause does not apply to the procedures governing adjudication of the right to detain, not the remedial right that was at issue at Canva.

[00:07:28] Speaker 07:
Unfortunately, Your Honor, I can.

[00:07:31] Speaker 07:
In the Albahani case, the court specifically said that the detainees at Guantanamo are deserving

[00:07:38] Speaker 07:
of leaner procedures than the due process protections afforded Americans in habeas proceedings in the U.S.

[00:07:46] Speaker 07:
courts.

[00:07:48] Speaker 07:
I can give you the site for that.

[00:07:49] Speaker 07:
I wish they hadn't done it, and we could distinguish it this way.

[00:07:53] Speaker 07:
But that's what they said.

[00:07:55] Speaker 07:
And of course, the district courts – well, they said 590 at 877.

[00:08:04] Speaker 07:
that Guantanamo detains are, quote, deserving of leaner procedures than the, quote, than the, quote, normal due process protections available to all within this country, end of quote.

[00:08:19] Speaker 07:
And, of course, the due process protections of all within this country to which the Court would refer.

[00:08:24] Speaker 02:
Okay, but leaner is not the same thing as saying they don't have rights.

[00:08:27] Speaker 02:
I'm sorry.

[00:08:27] Speaker 02:
Leaner is not the same thing as saying they don't have rights.

[00:08:31] Speaker 02:
They don't have procedural protections.

[00:08:36] Speaker 07:
Correct?

[00:08:39] Speaker 07:
If they have due process rights, then the protection should not be leaner than those afforded to people in this country after a conviction.

[00:08:51] Speaker 07:
As the Supreme Court made clear, held under executive detention, if anything, they are entitled to more robust procedures.

[00:08:59] Speaker 07:
So I would like to distinguish

[00:09:02] Speaker 07:
But I'd love to.

[00:09:04] Speaker 02:
But that's what you're citing is – all I said was there's leaner procedures.

[00:09:08] Speaker 02:
And so – and they don't even cite CHEMBA when they do that.

[00:09:13] Speaker 02:
So how do we know that leaner procedures just doesn't mean – still has to include the opportunities for

[00:09:23] Speaker 02:
meaningful challenge to the government's case and meaningful judicial review that were promised in Bemedian.

[00:09:29] Speaker 02:
I assume your position would be that whatever those, however leaner they may be, they have to include meaningful opportunity for you to challenge the government's case and meaningful opportunity for a court to review the decision.

[00:09:41] Speaker 07:
But what standard can there be, Your Honor, other than due process?

[00:09:45] Speaker 07:
Due process, as the government has said, can accommodate whatever standards are appropriate.

[00:09:50] Speaker 02:
I'm just asking Bemedian.

[00:09:52] Speaker 02:
I'm sorry, I know you had something.

[00:09:53] Speaker 07:
Bomedian.

[00:09:54] Speaker 02:
Bomedian was quite specific, that the opportunity for meaningful

[00:10:00] Speaker 02:
the effective opportunity to challenge the government's case, and meaningful judicial review were required just to avoid a suspension of habeas corpus.

[00:10:09] Speaker 02:
They didn't even have to get to due process clause.

[00:10:11] Speaker 02:
And so that meaningful, if you have meaningful opportunity, and we can have plenty of cases to dispute what that means, but if you have meaningful opportunity.

[00:10:20] Speaker 07:
We do not have meaningful opportunity to challenge a basis for detention.

[00:10:23] Speaker 02:
I'm just saying, if you have that meaningful opportunity, and the court has a meaningful opportunity to provide

[00:10:29] Speaker 02:
effective judicial review, there's nothing in Albahani that forecloses that.

[00:10:36] Speaker 02:
And Cayamba wasn't talking about the procedures for habeas determining the legality of detention at all.

[00:10:43] Speaker 02:
And so the state of the law, I guess, isn't it Bomedian's guarantee of meaningful and effective opportunity on your end and meaningful, effective judicial review on our end.

[00:10:52] Speaker 02:
Is that?

[00:10:52] Speaker 07:
Well, I think what Bomedian means is that you have the right to a habeas

[00:11:00] Speaker 07:
corpus proceeding, I think the law is clear that a habeas corpus proceeding must be conducted in accordance with due process of law.

[00:11:10] Speaker 07:
As soon as you differ, as soon as you depart from due process, you have no standard.

[00:11:15] Speaker 07:
And I can go – if I – just, Mike, for a second.

[00:11:20] Speaker 07:
I mean, you know, due process

[00:11:26] Speaker 07:
habeas corpus and due process really cannot be separated.

[00:11:30] Speaker 07:
They've never been separated under the law.

[00:11:32] Speaker 07:
They're the two pillars of the Magna Carta.

[00:11:35] Speaker 07:
Habeas gets you into court for a hearing.

[00:11:38] Speaker 07:
Due process ensures that that hearing will be fair.

[00:11:41] Speaker 07:
As a matter of fact, Justice Scalia – and I even wrote down the quote when the cases came up.

[00:11:48] Speaker 07:
Of course, now I can't find it, but it says,

[00:11:53] Speaker 07:
Justice Scalia basically says habeas is the instrument, but due process is the right for fairness.

[00:12:01] Speaker 07:
Habeas is the instrument which allows you to be in and say that the proceeding must be conducted fairly.

[00:12:07] Speaker 07:
That's the standard.

[00:12:08] Speaker 07:
I mean, the courts have developed a whole jurisprudence without it.

[00:12:12] Speaker 07:
I mean, habeas without due process simply isn't habeas under our system.

[00:12:19] Speaker 07:
It can't be.

[00:12:20] Speaker 01:
So here's the difficulty or one of the difficulties

[00:12:23] Speaker 01:
from a court's perspective, due process is very contextual, and for example, we have cases that proceed under the Classified Information Procedures Act, and various substitutes for classified national security information are used, and in some cases,

[00:12:49] Speaker 01:
this court, that has been challenged as a violation of due process and this court has sustained some of those exercises and not others, depending on the circumstances and whether in the case the individual was deemed to have had an opportunity to test the charges against that person or that organization

[00:13:16] Speaker 01:
Here you're asking us to make a general statement about applicability or not of Duke process when, I'm just not sure it's presented to us whether the processes that you've sought, the best processes available under the case management order are in fact

[00:13:38] Speaker 01:
going to impinge your client's ability to test.

[00:13:43] Speaker 07:
May I address that, Your Honor, because I really think I can.

[00:13:46] Speaker 07:
And I think the problem is here, whether you have the right to due process or not, without it, you have no rights.

[00:13:52] Speaker 07:
And I want to address the SIPA cases because I think they're really directly on point.

[00:13:57] Speaker 07:
And I think I can really put it to bed.

[00:14:00] Speaker 07:
First of all, I'd like to start off

[00:14:03] Speaker 07:
Under the law, what is the minimum – the question we're raising, are we entitled to due process, even if it's a flexible, contextual process?

[00:14:12] Speaker 07:
What does due process require?

[00:14:14] Speaker 07:
We cited the Morrissey and Gagnon case, which are revocation of parole, where it says the minimum requirements of due process include written notice of the claim violation, disclosure of the evidence against him, the opportunity to be heard in person, and the right to cross-examine witnesses.

[00:14:32] Speaker 07:
We don't have that here.

[00:14:33] Speaker 07:
Now, Morrissey clearly was not classified information case.

[00:14:39] Speaker 07:
SIPA does deal with classified information and makes that balance, and that's in a context where the defendants have rights, have the due process rights.

[00:14:48] Speaker 07:
And what it does, it draws a balance, and the courts make clear that in drawing the balance, the defendants' rights always come first.

[00:14:57] Speaker 07:
In case after case,

[00:14:59] Speaker 07:
The government may not deprive the accused of anything which might be material as defense, the Supreme Court, this court.

[00:15:06] Speaker 07:
Evidence that is relevant and helpful to the defense cannot be withheld.

[00:15:10] Speaker 07:
The executive's interest in protecting classified information does not overcome a defendant's right to present the case.

[00:15:17] Speaker 07:
Furthermore, SIPA and the courts have said it, that if you decide that you're not going to give the accused the information, you've got to give a substitute, and that substitute

[00:15:27] Speaker 07:
is only if the summary must provide the defendant with substantially the same ability to make his defense as with the disclosure of the specified classified information.

[00:15:39] Speaker 06:
Well, wait.

[00:15:39] Speaker 06:
Can you focus?

[00:15:41] Speaker 06:
I mean, at least for me anyway, I get the background.

[00:15:43] Speaker 07:
I'm sorry, Your Honor.

[00:15:44] Speaker 06:
I get the background.

[00:15:47] Speaker 06:
Put it in the context of this case.

[00:15:49] Speaker 07:
That's what I want to do right now.

[00:15:50] Speaker 06:
Well, I mean, we're taking too long to get there.

[00:15:52] Speaker 06:
I'm sorry.

[00:15:53] Speaker 06:
I'm sorry.

[00:15:54] Speaker 06:
What is it your?

[00:15:55] Speaker 06:
Well, here's what I'm saying.

[00:15:57] Speaker 06:
You stipulated to a set of facts.

[00:16:01] Speaker 06:
And I understand all of what went on there.

[00:16:04] Speaker 06:
You didn't ask for discovery.

[00:16:07] Speaker 06:
And so make that the context, because that's this case.

[00:16:10] Speaker 06:
What is it that you think is the legal error here, assuming your biggest view of due process?

[00:16:18] Speaker 06:
Let's not debate that anymore.

[00:16:19] Speaker 06:
Tell me what you think.

[00:16:21] Speaker 06:
What's wrong here?

[00:16:22] Speaker 06:
You stipulated to a set of files.

[00:16:24] Speaker 06:
Wait a second.

[00:16:25] Speaker 07:
No one made you do it.

[00:16:26] Speaker 07:
No, wait a second.

[00:16:27] Speaker 07:
No, that's right.

[00:16:27] Speaker 02:
Wait, before you answer, I just want to say one thing to you and the Council for the Government.

[00:16:31] Speaker 02:
If at any point you're responding to a question or making an argument you feel like we need to go to a closed session, we will do that and we're prepared to do that.

[00:16:38] Speaker 02:
Thank you.

[00:16:38] Speaker 02:
So just to lay that out before you respond.

[00:16:40] Speaker 07:
I think, Your Honor, I agree.

[00:16:44] Speaker 07:
It might sound like I'm being obtuse.

[00:16:46] Speaker 07:
No, I didn't say that.

[00:16:48] Speaker 06:
I'm sorry, why?

[00:16:49] Speaker 06:
It was all very interesting, but I think we've got to decide this case.

[00:16:53] Speaker 07:
Let me say, I think if I can just finish this, it will show the difference and why we couldn't dispute the facts under the existing procedures.

[00:17:03] Speaker 07:
Because we couldn't dispute the facts, we couldn't see the facts to dispute them, we entered into a stipulation.

[00:17:10] Speaker 07:
Did you see discovery?

[00:17:14] Speaker 07:
We sought a procedure – we proposed procedures under which they would disclose the information to us.

[00:17:21] Speaker 07:
The government did not – The government didn't answer.

[00:17:24] Speaker 06:
They didn't answer.

[00:17:24] Speaker 06:
Okay, wait.

[00:17:25] Speaker 06:
I'm going to – I've got to do it this way so I can get a better sense because I haven't – I know what they're going to say.

[00:17:31] Speaker 06:
I know what the other side is going to say.

[00:17:33] Speaker 06:
So no one made you do it.

[00:17:36] Speaker 06:
You could have said, no, I'm not buying that.

[00:17:38] Speaker 06:
I asked you, I gave you the procedure we want.

[00:17:42] Speaker 06:
I'm not buying your let's stipulate the facts stuff.

[00:17:44] Speaker 06:
That's nonsense.

[00:17:45] Speaker 06:
And incidentally, here's my request for discovery.

[00:17:48] Speaker 06:
If I'm on their side, that's what I'm going to say.

[00:17:50] Speaker 06:
You didn't take advantage of any of that.

[00:17:51] Speaker 06:
So now where are you coming with this due process argument?

[00:17:54] Speaker 06:
You didn't seek to get the evidence which you now claim

[00:17:58] Speaker 06:
has been dealt from you.

[00:18:01] Speaker 07:
Where did you seek discovery?

[00:18:03] Speaker 07:
We sought discovery in proposing the procedures to the ones that didn't answer.

[00:18:07] Speaker 06:
I understand the proposal.

[00:18:08] Speaker 06:
You made a proposal, and the government ignored it, and they came up with their own, and you agreed to it.

[00:18:14] Speaker 07:
And maybe we made a mistake for believing them.

[00:18:16] Speaker 06:
That's what I, as a judge, when I'm preparing the case, I'm saying, gee, why'd they do that, given the arguments are advancing?

[00:18:23] Speaker 06:
Why isn't their argument?

[00:18:24] Speaker 06:
No, what you're proposing is utter nonsense.

[00:18:26] Speaker 06:
We're not buying all of that.

[00:18:28] Speaker 07:
Your Honor, may I say the reason behind that is because the CMO procedures are so contrary to the procedures I just said under SIPA.

[00:18:39] Speaker 07:
If we go forward, let me tell you, and I really would say everything SIPA does that the defendant's rights comes first is flipped on its head under the CMO.

[00:18:50] Speaker 07:
the case management order of procedures, and I can show you that.

[00:18:54] Speaker 02:
As a matter of fact... Would you just be clear, if you had the SIPA process in these proceedings, you would have no... Do you claim anything more than the SIPA process?

[00:19:02] Speaker 07:
No, but we claim only what SIPA would allow.

[00:19:06] Speaker 07:
And let me say, under SIPA, it's clear.

[00:19:09] Speaker 07:
Any relevant material information, evidence, has got to be disclosed to Security Cleared Counsel, and it must be disclosed

[00:19:18] Speaker 07:
to the detained, to the accused, or if it's not an adequate substitute must be given.

[00:19:25] Speaker 07:
That is not the rule under the CMO procedures.

[00:19:28] Speaker 07:
And I encourage you, if you haven't, to read the Al-Hili case.

[00:19:32] Speaker 07:
If I can go through that, it's flipped on its head.

[00:19:35] Speaker 02:
Under the Al-Hili... You haven't asked... You've only identified one case that you think we need to revisit in your briefs here, and that is Cayamba.

[00:19:43] Speaker 07:
Cayamba.

[00:19:44] Speaker 02:
That's the only one you've identified.

[00:19:46] Speaker 02:
You haven't sought

[00:19:47] Speaker 02:
And you know, of course, a panel can't do that anyhow.

[00:19:50] Speaker 02:
But you haven't challenged, you seem to have not challenged, other cases.

[00:19:56] Speaker 07:
Well, Your Honor, the cases, excuse me, I'm sorry, I didn't mean to interrupt, but I've been hearing.

[00:20:04] Speaker 07:
So, the cases that then derive from CAMBA based on the lack of due process, certainly in the district court,

[00:20:13] Speaker 07:
The Ali case that we said, they said, it's just clear, due process doesn't apply to aliens outside the sovereign territory of the United States.

[00:20:22] Speaker 02:
That's it.

[00:20:23] Speaker 02:
So you're talking about the leaner process case?

[00:20:26] Speaker 02:
No, no.

[00:20:27] Speaker 07:
This is the Ali case in the district court, which we said it.

[00:20:30] Speaker 07:
We said the courts have uniformly said that they don't have due process.

[00:20:34] Speaker 07:
Once you examine the facts through the prism of them not having due process.

[00:20:40] Speaker 06:
The CMO procedures preceded all of these cases.

[00:20:44] Speaker 06:
Proceeded all what?

[00:20:45] Speaker 06:
The CMO procedures predated all of these cases that we're not talking about.

[00:20:52] Speaker 06:
Oh, no.

[00:20:52] Speaker 06:
Well, they preceded... Preceded, Canva, Abahani, all of them.

[00:20:57] Speaker 07:
Yeah.

[00:20:59] Speaker 06:
So much... I'm having trouble putting together what is the... Your Honor, if I... If you... Let me tell you what the CMO... Given the way the cases come up to marketplace, I'm really having trouble understanding

[00:21:14] Speaker 06:
What is your claiming you were being denied and because of what?

[00:21:19] Speaker 06:
We are not like the body of case law and actually I agree with my colleague.

[00:21:25] Speaker 06:
I don't know.

[00:21:25] Speaker 06:
It's not your main problem.

[00:21:28] Speaker 06:
It's the how we've construed preponderance and

[00:21:33] Speaker 06:
of the lower procedures generally that we said, the presumption of regularity, but you're not even talking about it.

[00:21:40] Speaker 07:
We're talking about all that, Your Honor.

[00:21:41] Speaker 07:
Now, we're not talking about the standard because I think it's difficult for us.

[00:21:45] Speaker 07:
I agree with you.

[00:21:46] Speaker 07:
I think the preponderance standard doesn't make sense.

[00:21:49] Speaker 07:
It should be higher.

[00:21:50] Speaker 07:
But I'm saying when a court down below

[00:21:54] Speaker 07:
examines evidence through the prism of these people don't have the right to due process.

[00:22:00] Speaker 07:
It's a very different procedure.

[00:22:01] Speaker 07:
And if you read the El Hilo case, it says that.

[00:22:04] Speaker 07:
It's totally contrary to what happens in SIPA when somebody has a right.

[00:22:09] Speaker 06:
What piece of due process do you claim you were being denied?

[00:22:15] Speaker 06:
The right to see?

[00:22:17] Speaker 06:
You could not preserve below.

[00:22:19] Speaker 06:
In other words, why stipulate?

[00:22:21] Speaker 07:
because we could not see the evidence against this, and that's clear from the standards that have been adopted by the courts below.

[00:22:29] Speaker 01:
But even under SIPA, often the counsel or the individual who's being subjected to the contested action doesn't have an opportunity to see the evidence or to cross-examine the witness, which are two things you cite from Morrissey, and yet the substitutes

[00:22:48] Speaker 01:
are on occasion held to be adequate under due process.

[00:22:53] Speaker 01:
Here, the government had prepared an amended factual return, but because the parties went off on the stipulation route, you did never seek that, right?

[00:23:07] Speaker 01:
In other words, there was some running room for you even under the case management order.

[00:23:15] Speaker 01:
And until we know what you would have been able to get, it's hard to say whether what you would have been able to get might, in fact, have approximated what due process would require in a case such as this.

[00:23:29] Speaker 07:
Your Honor, I respectfully disagree, and I really encourage you to read the L. Hewlett case.

[00:23:34] Speaker 07:
There, like here,

[00:23:36] Speaker 07:
Most of the – most of the return was classified.

[00:23:41] Speaker 07:
Most of the exhibits were classified.

[00:23:43] Speaker 07:
And this came out before we made these decisions.

[00:23:46] Speaker 07:
This is the ruling precedent now on the CMO.

[00:23:49] Speaker 07:
Okay, he was not – and it's a very different thing.

[00:23:52] Speaker 07:
Let me just say in SIPA,

[00:23:54] Speaker 07:
The lawyer, the classified cleared lawyer, always gets the evidence.

[00:23:59] Speaker 07:
So when a summary, if they give a summary to the client, the lawyer can check it out.

[00:24:04] Speaker 02:
I just mean to interrupt here, but this Al-Hila case, is that cited in your opening brief?

[00:24:09] Speaker 07:
It's in the reply brief when they came back and paid

[00:24:13] Speaker 07:
Yes, it said page 17 and 18 of the reply brief.

[00:24:17] Speaker 07:
We didn't go through the whole case, but if you read it.

[00:24:20] Speaker 02:
But I guess that's also a district court case.

[00:24:23] Speaker 02:
And I don't know why an attorney would come to this court saying, I guess our hands are all tied by a district court decision.

[00:24:29] Speaker 07:
Well, when we go through the process under the case management order, that's the process.

[00:24:36] Speaker 02:
OK, so you go through it in this case.

[00:24:38] Speaker 02:
So normally what I would expect is in this case, you would go to the district court judge and say,

[00:24:43] Speaker 02:
They cannot withhold it from counsel.

[00:24:46] Speaker 02:
That's what we did.

[00:24:47] Speaker 02:
No, you went and filed a motion asking for due process contrary to CAMBA.

[00:24:52] Speaker 02:
No, no, no.

[00:24:52] Speaker 02:
You did not, there's nothing specific like this.

[00:24:54] Speaker 07:
No, you know, excuse me, Your Honor, and I shouldn't have honored that guy.

[00:24:57] Speaker 07:
No, no, no, please.

[00:24:58] Speaker 02:
Please tell me.

[00:24:59] Speaker 07:
We went in and we filed a motion in Lumine, you know, after we did the procedure, after we

[00:25:05] Speaker 07:
proposed that they disclose everything, and they didn't answer.

[00:25:08] Speaker 07:
We went through this procedure.

[00:25:09] Speaker 07:
We said we want to file a motion to eliminate, to do it.

[00:25:12] Speaker 07:
And not only did we say give us due process in some theoretical way, we said give us the disclosure of the information.

[00:25:19] Speaker 07:
We need disclosure of the information attested specifically, specifically.

[00:25:24] Speaker 07:
And Judge Hogan looked at it and said, look, under existing rules, I can't do that.

[00:25:29] Speaker 07:
I can't do that.

[00:25:30] Speaker 07:
That's what we're asking for.

[00:25:33] Speaker 01:
I understand that and that it may have been that he fell down on the job, but what I didn't see in the record was much pushing by you to say no.

[00:25:42] Speaker 01:
The case management order with all due respect, Judge Hogan,

[00:25:46] Speaker 01:
requires more.

[00:25:48] Speaker 01:
It says you get a classified factual return, you get an unclassified version, and we want that unclassified version.

[00:25:57] Speaker 07:
Okay, I accept the question.

[00:25:59] Speaker 07:
I'll say why why did we not do it?

[00:26:01] Speaker 07:
If you read Al Gheela, we're not entitled to it under the court's interpretation of the case management order.

[00:26:08] Speaker 06:
That's a district court opinion.

[00:26:10] Speaker 06:
Preserve your objection for the reference.

[00:26:13] Speaker 06:
This is what I raise with you.

[00:26:15] Speaker 06:
What we're all perplexed about is you preserve your objection.

[00:26:20] Speaker 06:
If you believe the CMO procedures,

[00:26:22] Speaker 06:
We're going to deny you due process.

[00:26:24] Speaker 06:
You weren't even pressing in those terms.

[00:26:26] Speaker 06:
But what you did on the record that we're looking at was to pull back from what you thought was the proper way to proceed because the government never responded and then agreed to what the government proposed.

[00:26:39] Speaker 06:
By frankly, I looked at it and I said, why'd they do that if they really think that the process was not going to allow them to have due process?

[00:26:46] Speaker 06:
It seems to me you say the district court will against us if you will, you're not giving us fair procedures and we take exception and we'll take it to the court of appeals.

[00:26:55] Speaker 06:
That's what we did.

[00:26:56] Speaker 06:
No, you didn't.

[00:26:57] Speaker 06:
You stipulated.

[00:26:59] Speaker 07:
Your Honor – and I'm sorry, I don't mean to – but – No, no, it's all right.

[00:27:02] Speaker 06:
I'm getting agitated, too, so you should – No, no, because what was our choice at that point?

[00:27:08] Speaker 06:
We could go – Jack, I do not agree to what the government's proposing.

[00:27:14] Speaker 06:
It's not acceptable.

[00:27:15] Speaker 06:
And if you're going to follow that and deny us our due process right, the right to understand the evidence against us and an opportunity to respond,

[00:27:22] Speaker 06:
issue your ruling, we're going to the Court of Appeal.

[00:27:25] Speaker 07:
But Your Honor, I think that's, we didn't stipulate that the facts were correct.

[00:27:29] Speaker 01:
No, we understand that.

[00:27:31] Speaker 07:
We understand that.

[00:27:32] Speaker 07:
Your Honor, I could have, if the choice was to go through, and the Alhela case has been going on now for two years, if our choice was to go through the whole procedure,

[00:27:42] Speaker 07:
and do it, we thought, oh my God, we're never going to win.

[00:27:45] Speaker 07:
If our choice was, and this is what we think we're doing, we object to these procedures, which deny us due process and the right to see the evidence against this.

[00:27:53] Speaker 07:
Which procedures?

[00:27:54] Speaker 07:
Are you talking about CMO?

[00:27:56] Speaker 07:
Yes, the CMO procedures.

[00:27:58] Speaker 07:
We want procedures going forward that comply with due process and allow us to see the evidence against this.

[00:28:04] Speaker 07:
That's all we want.

[00:28:05] Speaker 07:
If you can't give us that, we want to go on appeal and say, that's wrong.

[00:28:10] Speaker 07:
Your Honor, that's what we thought we were doing.

[00:28:12] Speaker 07:
It's what we thought we were doing.

[00:28:13] Speaker 07:
If our alternative was to go through two more years under procedures we knew were no good, then he denied us the procedures.

[00:28:21] Speaker 07:
Al Heel had denied us the procedures.

[00:28:23] Speaker 07:
That's what's controlling now.

[00:28:24] Speaker 02:
Well, then it wouldn't take two years to rule on your motion.

[00:28:28] Speaker 07:
Well, this is the motion, really.

[00:28:29] Speaker 07:
This is the motion we sent to him.

[00:28:31] Speaker 07:
Your Honor, we want procedures going forward that comply with due process.

[00:28:35] Speaker 01:
So if you had in the district court said, we want an unclassified version, the government says it had one on hand, you just didn't actually dislodge it.

[00:28:48] Speaker 01:
If you had said,

[00:28:49] Speaker 01:
We want you to do that review of the other agency's records for potential exculpatory information.

[00:28:57] Speaker 01:
Judge Hogan seemed poised to require that in a matter of weeks.

[00:29:02] Speaker 01:
And the government was saying, oh, we can't do that.

[00:29:04] Speaker 01:
And instead of saying, hey, we've got Judge Hogan here saying he wants to have some kind of trial within a short number of weeks,

[00:29:13] Speaker 01:
put their feet to the fire.

[00:29:15] Speaker 07:
Why didn't you stay on that train as opposed to... Well, we put a state on that train, but what we thought is that trial going to go forward based on the standards that we think we're entitled to as a matter of law, which is due process and right to see the evidence against us.

[00:29:28] Speaker 07:
That's what we said.

[00:29:29] Speaker 07:
And I said what I've stood before Judge Hogan, the stipulated reference saying, Your Honor,

[00:29:35] Speaker 07:
What we want is the graining of the motion and the limiting.

[00:29:38] Speaker 07:
We want to go forward on a basis that complies with due process.

[00:29:42] Speaker 02:
The motion and the limiting, I just went through a laundry list of sort of the objections to assorted case law from this circuit, the standard review, the preponderance, all these types of things.

[00:29:53] Speaker 02:
It goes through a lot of those things.

[00:29:55] Speaker 00:
And it asks for a division.

[00:29:56] Speaker 02:
We know you can't do it under QEMBA.

[00:29:58] Speaker 02:
So I think the question is, had you gone to the district court and said, we want

[00:30:04] Speaker 02:
At least counsel to see this information.

[00:30:09] Speaker 02:
Or we want an adequate substitute.

[00:30:11] Speaker 02:
We believe the Constitution, Bumedian, requires that.

[00:30:14] Speaker 02:
You can't have meaningful opportunity to challenge a meaningful judicial review without it.

[00:30:21] Speaker 02:
Or we want, if you won't give us that, then there's no point in going forward in the case.

[00:30:26] Speaker 02:
But you didn't even do that as to the classified information.

[00:30:31] Speaker 07:
I disagree with your characterization of emotional limiting because it did ask for specifically disclosure of information, et cetera, and procedures, and we said that's how we want to move forward.

[00:30:44] Speaker 07:
And when I went to argue before Judge Hogan,

[00:30:48] Speaker 07:
I said, look, we've got a stipulation here, but our preference is to move forward on the granting of the motion in Lemonade to let us move forward with due process.

[00:30:57] Speaker 07:
That's what we want to do.

[00:30:59] Speaker 07:
We think our client is entitled to due process of law under the Fifth Amendment and under the Boumediene decision.

[00:31:05] Speaker 07:
That's what we want.

[00:31:06] Speaker 07:
And he said, I can't do that because I'm bound by the circuit's opinion.

[00:31:12] Speaker 07:
And we said, OK, Judge Edwards, we thought we were doing what you said.

[00:31:17] Speaker 07:
And maybe we were wrong in trusting the government and saying that this person.

[00:31:23] Speaker 07:
Maybe we were stupid in not doing this.

[00:31:25] Speaker 07:
But I hope my client doesn't need to suffer through two more years, then, without due process.

[00:31:32] Speaker 07:
All we want is the right to be able to test the evidence against this in accordance with standards that can be put up by the court.

[00:31:40] Speaker 07:
And I think if you read the Alhela case, you will see how terribly different those standards are than the SIPA standards, which what they are now.

[00:31:50] Speaker 02:
The point is we don't have to go read another case.

[00:31:52] Speaker 02:
We normally look at the record before us to see where the gap, the specifics about the gap between what you asked for, what you claimed you were legally entitled to, and what you got from the district court.

[00:32:03] Speaker 02:
And that's kind of what's challenging here.

[00:32:06] Speaker 07:
These are different cases.

[00:32:09] Speaker 07:
It's 17 years that we've asked for one thing, a fair hearing.

[00:32:14] Speaker 07:
And every way along the way, if we were tricked by the government, shame on us.

[00:32:17] Speaker 02:
You haven't asked for 17 years.

[00:32:19] Speaker 02:
The thing was stayed for until 2004 and 2017, as I recall.

[00:32:27] Speaker 07:
It was stayed for eight years or so while the procedures were being gone through.

[00:32:32] Speaker 07:
What is the standards?

[00:32:33] Speaker 02:
I thought the state wasn't lifted until 2017.

[00:32:36] Speaker 02:
Am I wrong about that?

[00:32:37] Speaker 02:
It was 2017.

[00:32:38] Speaker 02:
That's right.

[00:32:38] Speaker 07:
What are the standards?

[00:32:39] Speaker 07:
And at that point, we said, let's move forward in trying to define these standards.

[00:32:44] Speaker 07:
He said, nobody moved forward in habeas cases because they couldn't win, because they're not showing the evidence against them.

[00:32:50] Speaker 07:
That's what's happened for the last seven years.

[00:32:52] Speaker 01:
But even under the case management order, maybe this feels like we're beating a dead horse, but under the case management order itself,

[00:33:00] Speaker 01:
If the government doesn't provide petitioner's security cleared counsel with information on the ground that it's classified, even then, to withhold, they need to get an exception from the district court.

[00:33:15] Speaker 01:
You never push that.

[00:33:17] Speaker 01:
As far as I can tell, nobody's looked at Exhibits 17 and 18, including the district court.

[00:33:24] Speaker 01:
And there's no exception ruling on the record here.

[00:33:26] Speaker 07:
Well, why not?

[00:33:27] Speaker 07:
Because they just say they don't need an exception.

[00:33:29] Speaker 07:
Because they say they're not withholding information to us that is relevant.

[00:33:33] Speaker 07:
Their argument is that they have redacted things that they're not relying on.

[00:33:38] Speaker 07:
I mean, we can go back.

[00:33:39] Speaker 01:
But they attached it to the factual return.

[00:33:42] Speaker 01:
So in a formal sense, they are relying on it.

[00:33:44] Speaker 01:
Of course they're relying on it.

[00:33:46] Speaker 01:
Of course they're relying on it.

[00:33:47] Speaker 01:
And I don't see a record where you're moving the district court.

[00:33:50] Speaker 01:
You need to rule on an exception or,

[00:33:53] Speaker 01:
counsel needs to see that.

[00:33:55] Speaker 07:
Well, Your Honor, may I say, I really want you to read the Alhela decision, because it shows how this lifts the curtain off of Guantanamo.

[00:34:04] Speaker 07:
It's not just a standard of proof.

[00:34:06] Speaker 07:
You can't see the information.

[00:34:08] Speaker 07:
There, even though the judge points to the case, he said, I don't need to give information to the detainee, because we have withheld it even from lawyers and others.

[00:34:20] Speaker 07:
He said, here, and then he specifically cites

[00:34:24] Speaker 07:
al-Bahani, but for the Qamber ruling, it said these are, you know, aliens outside the territory of the United States and they're due less.

[00:34:34] Speaker 07:
We don't need to do it.

[00:34:35] Speaker 07:
It's totally opposite.

[00:34:37] Speaker 06:
Because they have... Have we ever said what you say that district court opinion says?

[00:34:41] Speaker 06:
I'm sorry, who?

[00:34:42] Speaker 06:
Have we ever said...

[00:34:44] Speaker 07:
No, and I'm trying to get... But that's the whole point.

[00:34:47] Speaker 06:
It doesn't matter that you were distressed by a district court's decision.

[00:34:51] Speaker 06:
It seems to me that gives you a ripe opportunity to say, they've now gone way too far.

[00:34:57] Speaker 06:
That's what I'm saying.

[00:34:58] Speaker 06:
No one can see anything and...

[00:35:00] Speaker 06:
The other way to proceed in this case is to say we don't – no, we're not buying any of that.

[00:35:04] Speaker 06:
This is not consistent with CMS.

[00:35:06] Speaker 06:
It's not consistent with due process.

[00:35:08] Speaker 06:
We're entitled to see the evidence against us.

[00:35:10] Speaker 06:
We're going to rule against this rule.

[00:35:12] Speaker 06:
We'll go up to the court of appeals, because that other district court opinion is wrong.

[00:35:15] Speaker 07:
Well, Your Honor, I know this item.

[00:35:17] Speaker 07:
Maybe I didn't – that's exactly what we thought we were doing.

[00:35:20] Speaker 07:
That's exactly what we thought we were doing.

[00:35:22] Speaker 07:
We said we want to see the evidence against us.

[00:35:25] Speaker 07:
Here's our motion to see this evidence against us in accordance with due process.

[00:35:28] Speaker 07:
We can't go forward without it.

[00:35:30] Speaker 07:
We can't really test the evidence.

[00:35:33] Speaker 07:
So if we can do that, if we think it's wrong, if you don't give us that, rule against it so we can go off and test it before the court of the deal.

[00:35:40] Speaker 06:
I guess I grew up in the school where I don't stipulate to anything.

[00:35:44] Speaker 06:
You don't?

[00:35:44] Speaker 06:
Normally I don't.

[00:35:45] Speaker 06:
If someone asks, is that your mother, I say I'm not answering the question.

[00:35:50] Speaker 06:
I'm not stipulating.

[00:35:51] Speaker 07:
Your Honor, I am not known as one who is very accommodating.

[00:35:55] Speaker 07:
But we really thought we were doing exactly what you said.

[00:35:58] Speaker 07:
We can't test this evidence – we can't test this and win this case unless we can see the evidence against this.

[00:36:05] Speaker 06:
Your Honor, granted is that right.

[00:36:06] Speaker 06:
Just to be clear, your motion – I just – that's so counterintuitive.

[00:36:09] Speaker 06:
You can say, you know, make the findings you want.

[00:36:12] Speaker 06:
I want the objections on the record that we can't get.

[00:36:16] Speaker 06:
the information that we're entitled to get, either on the CMS or the process or both.

[00:36:22] Speaker 06:
You've made it clear to us it's not going to be made available.

[00:36:24] Speaker 06:
We've proposed procedures.

[00:36:26] Speaker 06:
The government wouldn't even respond to them.

[00:36:29] Speaker 06:
Do what you want to do.

[00:36:30] Speaker 06:
We'll see you at the Court of Appeals.

[00:36:32] Speaker 01:
Or include in the stipulation.

[00:36:34] Speaker 01:
We asked for X and Y, you know, the more granular, the more specific, and the government takes the position that that's not permitted under the case management order, despite the fact that the case management order so provides.

[00:36:48] Speaker 01:
You know, if you had the more specific stonewalling that you say you saw, you know, in the other courtroom in Al-Hila,

[00:36:59] Speaker 01:
You've got to put that on the record in your case, no?

[00:37:01] Speaker 07:
Well, first of all, let me say, if I were as smart lawyers as you guys, maybe I'd be on the Court of Appeals.

[00:37:08] Speaker 07:
But I'm not.

[00:37:09] Speaker 07:
I really thought we were doing that, even in this stipulation.

[00:37:13] Speaker 07:
That was our intent.

[00:37:15] Speaker 07:
Perhaps our forum wasn't as perfect

[00:37:19] Speaker 07:
I think it might have been, but that's exactly what we – we thought we were doing – exactly what we told Judge Hogan.

[00:37:24] Speaker 07:
We need this information to go forward.

[00:37:27] Speaker 07:
We're entitled to due process.

[00:37:29] Speaker 07:
I'm repeating myself, but I'm – okay.

[00:37:56] Speaker 00:
I have a question up front.

[00:38:02] Speaker 02:
There's much talk about Exhibits 17 and 18.

[00:38:05] Speaker 02:
On the public record, they're virtually 99.9 percent redacted.

[00:38:11] Speaker 02:
Is the district court giving unredacted copies of those documents?

[00:38:15] Speaker 00:
I don't believe it was, Your Honor, but again, that was because the government was not relying on the unredacted.

[00:38:20] Speaker 02:
Okay, what do you what do you mean?

[00:38:22] Speaker 02:
What does the government mean filing with the district court documents and the stipulation references the amended factual return?

[00:38:32] Speaker 02:
You submit it to the court as a basis for decision, and we go, well, we didn't actually intend for you to rely upon it.

[00:38:40] Speaker 00:
Well, Your Honor, we certainly intended for the district court to rely on the materials that we submitted that were not redacted.

[00:38:45] Speaker 02:
And that included black pages.

[00:38:47] Speaker 00:
And, Your Honor, as I think the discussion earlier illustrated, if counsel believed there was material in it, the government should have disclosed.

[00:38:52] Speaker 02:
No, no, no, I'm asking what was the government thinking, expecting a district court to enter a ruling based on black pages, and then you come along and say,

[00:39:00] Speaker 02:
We weren't relying on it.

[00:39:02] Speaker 02:
How can anybody know what the district court relied on or what you were relying on if nobody's seen it?

[00:39:06] Speaker 00:
Well, Your Honor, we know the district court wasn't relying on the redacted material because we didn't see the redacted material.

[00:39:11] Speaker 00:
Right.

[00:39:11] Speaker 00:
So we can say comfortably what the district court was relying on.

[00:39:14] Speaker 00:
But the point is that what the case management order requires us to disclose is the material that we're relying on to justify detention.

[00:39:19] Speaker 02:
So why did you submit that?

[00:39:20] Speaker 00:
And so the aspects of the document that we were relying on to justify detention were disclosed both to the district court

[00:39:25] Speaker 00:
and to counsel.

[00:39:26] Speaker 01:
So as to that material... Just the name on a black page?

[00:39:29] Speaker 01:
That's the aspect?

[00:39:30] Speaker 01:
You relied on that?

[00:39:31] Speaker 00:
Yes, I mean, that's the material that's provided in the classified joint appendix.

[00:39:36] Speaker 00:
As you'll see, it's somewhat less redacted in that document, although, as you note, not entirely.

[00:39:40] Speaker 00:
Now, again, to the extent there are concerns with those redactions, there is a process laid out by this court in Al Ota to address those concerns.

[00:39:48] Speaker 02:
I'm addressing a different concern altogether that I have, and that is that the government views itself as somehow having the right to submit black pages to a district court

[00:40:00] Speaker 02:
and ask them to make a decision on a record that consists of black pages that the district court alone doesn't see.

[00:40:07] Speaker 02:
Surely the district court should have been able to.

[00:40:08] Speaker 02:
If you're submitting it to the court, the court's got to get to see it.

[00:40:11] Speaker 00:
Well, Your Honor, if there were, for example, a challenge to those procedures that the district court wished to... Why does it have to be a challenge?

[00:40:17] Speaker 02:
No, no, no.

[00:40:18] Speaker 02:
You don't get to ask the district court to rely on black pages as part of a decision.

[00:40:22] Speaker 00:
Well, Your Honor, if the district court had, for example, ordered the in-camera production of that full document, you know, we could have addressed that issue in that way,

[00:40:29] Speaker 00:
If there had been a challenge to those redactions, the court would have been entitled to review the document and camera to make whatever judgments were necessary, but no concerns were raised in that context and none of the procedures that would have allowed for that to place in this case.

[00:40:41] Speaker 02:
This is a question about the government's process, just to begin with.

[00:40:43] Speaker 02:
The government's going to turn in, here's the stipulation, here's the record, make your decision based on these black pages.

[00:40:53] Speaker 00:
Yes, Your Honor.

[00:40:54] Speaker 02:
And we have to wait for the court has that cask and goes through the process.

[00:40:58] Speaker 02:
You don't even proffer to the court the ability to look at the unseen.

[00:41:02] Speaker 02:
I mean, I don't see that in any case law.

[00:41:04] Speaker 02:
I can't imagine how that's consistent with the committee and the courts are supposed to rely on information they haven't seen.

[00:41:10] Speaker 00:
Your Honor, again, I think the point is that it's not information that is, you know,

[00:41:15] Speaker 00:
relied on but that other material that is redacted is not relied on to justify the petitioner's detention.

[00:41:21] Speaker 00:
And why was it submitted at all?

[00:41:22] Speaker 00:
Because there are aspects of that document that were relied on to justify Mr. Gissam's detention, but not the portions of the document that were redacted.

[00:41:30] Speaker 00:
And I think this is not a particularly unusual procedure in – with respect to these cases, and I think these specific exhibits have been submitted in other cases.

[00:41:37] Speaker 00:
But again, Your Honor, there were no objections made to that process in district court that would have enabled the district court to carry out that out.

[00:41:45] Speaker 02:
Tell me what part you were relying on.

[00:41:47] Speaker 06:
Yes, some parts were entirely blocked.

[00:41:48] Speaker 02:
17 and 18.

[00:41:49] Speaker 02:
What were you relying on in 17?

[00:41:51] Speaker 02:
What unredacted thing?

[00:41:53] Speaker 02:
I'm talking about the public record reliably?

[00:42:01] Speaker 00:
To the extent that you have questions about the full version of these documents, the district court saw that.

[00:42:07] Speaker 00:
We have talked about that in closed session.

[00:42:08] Speaker 00:
We can certainly discuss the public versions that have been released.

[00:42:11] Speaker 00:
Yes.

[00:42:11] Speaker 02:
Is there anything in this public version you're relying on?

[00:42:13] Speaker 00:
Yes, Your Honor.

[00:42:14] Speaker 00:
I mean, that reflects some of the material that's being relied on.

[00:42:16] Speaker 00:
There is, I believe, some small amount of additional material in the classified joint appendix.

[00:42:21] Speaker 06:
What?

[00:42:21] Speaker 06:
What is it you're relying on?

[00:42:22] Speaker 06:
I'm looking at the black mark.

[00:42:26] Speaker 02:
I'm just attached to the reply breaks, and we know we're dealing with the... Yes, Your Honor.

[00:42:31] Speaker 02:
So... Is it part of your basis for the decision to detain this stuff?

[00:42:36] Speaker 00:
So, page... So, look at the Exhibit 17, Your Honor.

[00:42:40] Speaker 00:
This is... I'm looking at page 127 of the Classified Joint Appendix.

[00:42:44] Speaker 00:
There's an indication that this is a captured Mujahideen associated with Khalid Sheikh Mohammed 2003.

[00:42:48] Speaker 00:
And then later in that exhibit, after pages of redactions, there is an entry related to the petitioner.

[00:42:58] Speaker 01:
Giving an alias.

[00:43:00] Speaker 00:
Yes, Kalidama Qasim, alias country Yemen, telephone number blank.

[00:43:04] Speaker 00:
And then in exhibit 18, we have something very similar.

[00:43:07] Speaker 00:
Your Honor, 146, the classified joint appendix, and this is all the public version.

[00:43:12] Speaker 00:
Rays of a suspect, al-Qaeda safe house 2002.

[00:43:15] Speaker 00:
And again, there are redactions.

[00:43:17] Speaker 00:
Name, Kalidama Qasim, contents and safety deposit box passports.

[00:43:21] Speaker 00:
So that's what's in the public record.

[00:43:22] Speaker 00:
Again, there's some small amount of additional facts in the classified version of the court has in front of it.

[00:43:31] Speaker 06:
Excuse me, you're not – you're relying on essentially nothing in the blacked out pages.

[00:43:35] Speaker 00:
We're not – not essentially nothing, Your Honor.

[00:43:37] Speaker 00:
We're relying on nothing in the blacked out pages.

[00:43:39] Speaker 06:
The specific things we're relying on are right here.

[00:43:40] Speaker 06:
The question we're asking is why are they there?

[00:43:42] Speaker 00:
Why are they submitted?

[00:43:44] Speaker 00:
Because, Your Honor, it's to show, to be honest about what the full scope of the exhibit looks like and to enable Mr. Kassim to bring a challenge under Al Oda if he has concerns about that document.

[00:43:54] Speaker 00:
And he shows not to do so.

[00:43:55] Speaker 01:
And so – so to the extent that the case management order provides

[00:43:59] Speaker 01:
that security cleared counsel is supposed to be able to see classified information, or if it's necessary to withhold it from cleared counsel, the district court needs to make an exception taking into account whether the information is material, the counsel's access, is the counsel's access to it necessary to facilitate review, would alternative access be adequate?

[00:44:24] Speaker 01:
You never sought that because you didn't think it was your burden to do

[00:44:27] Speaker 00:
pressure on because, again, we're not relying on the material that's been redacted from those exhibits in the version that Mr. Keseem's counsel saw.

[00:44:34] Speaker 00:
Now, again, if they disagree with that, there is a procedure that would permit the district court to make the kind of ruling you're describing following the Al Ota procedure, but that, again, was not made use of in this case.

[00:44:46] Speaker 06:
Yeah, well, the thing is, I mean, there was a lot of gamesmanship going on here.

[00:44:50] Speaker 06:
You seem to be, part of the record suggests you were assuring them

[00:44:55] Speaker 06:
that the objections that they now want to raise.

[00:44:57] Speaker 06:
Absolutely.

[00:44:57] Speaker 06:
You agree.

[00:44:58] Speaker 06:
Let's make it easy.

[00:45:00] Speaker 06:
We'll do this stipulated thing, and we understand the kinds of objections you want to make about the CMS and the due process.

[00:45:07] Speaker 06:
Yes, we agree you have the right to raise those, including

[00:45:11] Speaker 06:
inability to get to evidence that they felt they needed to be able to make their case.

[00:45:16] Speaker 06:
Your Honor, the... And now you say, it's kind of like you're laughing at them now.

[00:45:19] Speaker 06:
No, no, you stipulated.

[00:45:20] Speaker 06:
You have nothing to raise.

[00:45:22] Speaker 00:
Well, Your Honor, I think counsel made a judgment very early on in this case in February 2017 to seek a judgment that it could appeal without going through the back-finding procedure in district court.

[00:45:31] Speaker 00:
That was the import of their original February 2017 motion.

[00:45:34] Speaker 00:
And it was something they repeatedly sought in a November 15, 2017 hearing on that motion, where there are three different points where counsel says, you know, we sort of want the government to tell us what additional facts would be necessary to enter an appealable judgment in this case.

[00:45:46] Speaker 06:
Now, we don't doubt that they've deserved... So you can answer all those questions.

[00:45:50] Speaker 06:
The problem for me in any of them is I don't know what I'm looking at.

[00:45:54] Speaker 06:
And so I don't know how I can review this in all due respect to both of you.

[00:45:58] Speaker 06:
And so I don't think it admits a repellent review.

[00:46:02] Speaker 06:
There are too many gains going on.

[00:46:04] Speaker 06:
It was not consistent with the CMS procedures.

[00:46:06] Speaker 06:
There's gaps in the evidence.

[00:46:08] Speaker 06:
I don't know what they are, whether they're significant.

[00:46:11] Speaker 06:
But we're so off the tracks now, as an appellate judge, I don't know what I'd be reviewing on here.

[00:46:17] Speaker 06:
Other than presumption that the government wins if they appear here.

[00:46:21] Speaker 06:
And I'm not prepared to do that.

[00:46:23] Speaker 00:
Your Honor, what you're reviewing is a set of facts to which Mr. Keseem is stipulating, which he concedes that the government has sufficient evidence to prove.

[00:46:30] Speaker 00:
Facts sufficient to justify his continued detention.

[00:46:32] Speaker 06:
No, no, no.

[00:46:33] Speaker 06:
It's more nuance than that because they thought that they were preserving something.

[00:46:36] Speaker 06:
And you know, when you thought you got them into this posture and

[00:46:41] Speaker 06:
I'm looking at his appellate judgment.

[00:46:43] Speaker 06:
I'm not sure who was right or wrong, but I don't think I have something before me that I can reasonably review.

[00:46:49] Speaker 06:
Your Honor, again, there's no doubt.

[00:46:50] Speaker 06:
The district court didn't make any serious findings with respect to gaps in the evidence that they were clearly raising.

[00:46:58] Speaker 00:
And – Your Honor, I'm not sure what gaps in the evidence you're referring to, because what we have is a series of stipulated facts in which there are no apparent gaps.

[00:47:06] Speaker 06:
There's a series of facts that just – But they are – or they also said, with your concurrence, but there's more that we should be getting, and you're denying us that.

[00:47:14] Speaker 00:
Your Honor, we certainly don't agree that there's material we deny them access to.

[00:47:18] Speaker 01:
Well, didn't you prepare a –

[00:47:20] Speaker 01:
version of the factual return that was unclassified that could have been provided, but things sort of went off on a different track before they got it?

[00:47:28] Speaker 00:
No, because the obligation to file an unclassified version of the factual return was something that attached in 2008, and the obligation to provide that was suspended when the case management, when the state was entered in this case.

[00:47:42] Speaker 00:
When we got back to this point nearly a decade later where we're starting to relegate this case again,

[00:47:47] Speaker 00:
At that point, there was going to be some figuring out of what to do and how to proceed in this case.

[00:47:52] Speaker 00:
So it's not like we had an unclassified version sitting around ready to go.

[00:47:56] Speaker 00:
that requires actually substantial work on behalf of the client agencies to figure out what material can be disclosed, whether publicly or in a format provided just to the detainee.

[00:48:07] Speaker 00:
So that's a process that takes a substantial amount of time, and at the time in 2008, it was not something we'd undertaken because the stay was put in place in this case.

[00:48:17] Speaker 01:
So what is the concrete record that you think that Kasim's counsel should have

[00:48:26] Speaker 01:
insisted on, you say had Kasim used the process available to him in district court, this is from the red brief page 14, he might have received most or all of the information to which he incorrectly claims due process entitles him.

[00:48:41] Speaker 01:
So you're saying that even without due process under the case management order, he would have received more.

[00:48:48] Speaker 01:
His choice to bypass that leaves his court without a concrete record.

[00:48:52] Speaker 01:
What is the more

[00:48:54] Speaker 01:
that you think he should have persisted in seeking, that he didn't persist in seeking.

[00:49:00] Speaker 00:
Well, Your Honor, I think if you look at the specific ways in which he asserts in his brief, of which there are not many, but the specific ways he asserts he was denied due process.

[00:49:07] Speaker 00:
So one is he claims he's not able to review documents containing his own statements.

[00:49:11] Speaker 00:
Well, but he is allowed to review his own statements, and the district court since 2009 has interpreted the case management order

[00:49:16] Speaker 00:
as permitting a detainee to review his own statements, even if they're classified.

[00:49:20] Speaker 00:
And there's a procedure laid out in that opinion for litigating any questions that arise in that context.

[00:49:26] Speaker 00:
So, you know, statements like that are simply just not correct as a description of the procedures available.

[00:49:31] Speaker 00:
And in addition, to the extent he claims that there are other materials that, you know, were withheld from him because they were classified,

[00:49:36] Speaker 00:
The protective order in this case provides for mechanisms both requesting that the government declassify certain documents or requesting the government give permission for disclosure of documents to a detainee to enable them to review those documents.

[00:49:50] Speaker 00:
And again, no requests of that sort were made in this case.

[00:49:52] Speaker 02:
Well, their concern was that you were saying, oh, it's going to take so long, so long.

[00:49:56] Speaker 02:
It's going to take months, months, months, months.

[00:49:57] Speaker 02:
Years.

[00:49:58] Speaker 02:
Years to do this.

[00:49:59] Speaker 02:
And yet you sound like, oh, no, this is all set and established and we could do it.

[00:50:03] Speaker 02:
So the question is, why was the government telling them

[00:50:06] Speaker 02:
leaving them in sort of this choice between going through this stipulated process or waiting years more before they would even have

[00:50:16] Speaker 02:
the documentation needed from your responses from you on what they could have and what they couldn't have.

[00:50:21] Speaker 00:
What are they supposed to do?

[00:50:22] Speaker 00:
Your Honor, I don't think that's a fair characterization of what the choice of the government put counsel to here.

[00:50:28] Speaker 00:
I mean, again, counsel had persisted in seeking a judgment that they could appeal without going through the back-finding process for some period of time.

[00:50:34] Speaker 02:
Yeah, but they submitted discovery requests and all kinds of things to you.

[00:50:38] Speaker 02:
Here's our plan.

[00:50:39] Speaker 02:
Here's our plan to get discoveries, to do what Judge Hogan wanted.

[00:50:42] Speaker 02:
He wants to have a trial very soon, and your response was, we can't do that.

[00:50:46] Speaker 06:
And that was not what they initially wanted.

[00:50:49] Speaker 06:
They gave you something that they wanted, you know, responded to it.

[00:50:52] Speaker 00:
I'm sorry, I'm not sure which thing you're referring to, Your Honor, because if you're referring to what they initially wanted in their February 2017 motion, what they wanted was a judgment with no fact-finding at all, which they could try to appeal.

[00:51:02] Speaker 00:
And the government did oppose that because we didn't believe it was sufficient to enable this court to conduct review, which is why we went.

[00:51:08] Speaker 00:
eventually to the round of providing a full factual situation.

[00:51:10] Speaker 02:
No, but then after that, if I've got this right, after that, they submitted to you, because Judge Hogan was saying, let's have a trial within a couple months, as I recall, and they sent, here's our proposed procedures, and here we're going to do that, and including discovery, and the government's response was, we can't, and I think it may have been Judge Hogan directly as well, we can't go through all these papers,

[00:51:33] Speaker 02:
Not in the short period of time.

[00:51:35] Speaker 00:
It's going to take a long time.

[00:51:37] Speaker 00:
It takes a long time to go through these materials.

[00:51:39] Speaker 02:
Sorry, how long was a long time that was anticipated in this case?

[00:51:42] Speaker 00:
I'm not sure exactly what the time frame was, but Your Honor, it also has to – not only is it about the government's ability to go through and provide the detainee with the materials that are part of the factual return and to consider whether to proceed on all of those materials or not, but it's also – the government has an obligation to do a search for exculpatory information.

[00:51:58] Speaker 00:
Exactly.

[00:51:59] Speaker 00:
The database into exculpatory information.

[00:52:00] Speaker 00:
You are – they chose to forego that opportunity.

[00:52:03] Speaker 02:
The database of the school – Because you were telling them it was going to be – first of all, you didn't respond.

[00:52:07] Speaker 02:
The government should have responded.

[00:52:08] Speaker 00:
Well, Your Honor, I want to respond to that.

[00:52:09] Speaker 00:
I don't think that's an accurate characterization of what happened.

[00:52:12] Speaker 00:
Again, I know we're delving into non-record materials here.

[00:52:14] Speaker 00:
If you look at page 48 of the – their proposed supplemental appendix, there's an email from government counsel responding to those proposed procedures in which the government outlines several objections they have to those procedures.

[00:52:26] Speaker 00:
and describes why they don't believe that those procedures are consistent with the case management order.

[00:52:30] Speaker 02:
Sorry, are you talking about the reply brief?

[00:52:31] Speaker 02:
Are you talking about the reply brief?

[00:52:32] Speaker 02:
I want to know exactly what you're looking at.

[00:52:33] Speaker 00:
No, the supplemental appendix.

[00:52:34] Speaker 00:
I'm referring to the proposed supplemental appendix, and again, this is materials that, you know, as we pointed out, we don't believe are part of the record, but to the extent we're considering them, page 48 is an email from government counsel that says, you know, we have serious objections to various aspects of these proposed procedures, but we also think that, you know, we're happy to go forward with discussions and stipulation because it would obviate a lot of these concerns.

[00:52:54] Speaker 00:
Now, again,

[00:52:57] Speaker 00:
So to suggest that the government was sort of like on board, you know, and I'm not sure quite what the suggestion is supposed to be here.

[00:53:04] Speaker 00:
The government certainly responded in that respect.

[00:53:07] Speaker 00:
And the bottom line is that, you know, Mr. Christine could have chosen to push the government to go through the case management order procedures.

[00:53:14] Speaker 02:
I just want to follow up because it's the in addition paragraph.

[00:53:17] Speaker 02:
Right, all the time it's going to take.

[00:53:20] Speaker 02:
Correct.

[00:53:20] Speaker 02:
All the time.

[00:53:21] Speaker 02:
And your guys still being detained.

[00:53:23] Speaker 02:
Correct, Your Honor.

[00:53:24] Speaker 02:
All this time.

[00:53:25] Speaker 02:
And so, hey, let's try the, we know you want to go expeditiously, understandably.

[00:53:30] Speaker 02:
They're challenging detention in habeas corpus.

[00:53:33] Speaker 02:
How about, let's try this other route.

[00:53:36] Speaker 00:
a route that they had proposed and been seeking for 10 months at that point.

[00:53:40] Speaker 01:
But in your legal judgment, I take it that it's your legal judgment, at least at the time the stipulations being developed, that you thought that would be

[00:53:50] Speaker 01:
a fit record on which we could decide the due process question.

[00:53:56] Speaker 00:
No, a fit record on which the district court could enter judgment.

[00:53:59] Speaker 00:
That's what we agreed.

[00:54:00] Speaker 00:
Now, whether or not it fully raised the due process question in the way Mr. Cassin wants is a separate question, but it certainly enabled them.

[00:54:08] Speaker 00:
Again, we're not arguing that there's some Article III barrier to considering this argument or something of that nature.

[00:54:13] Speaker 00:
They certainly are able to raise the argument as they have, but

[00:54:19] Speaker 00:
The objection we had to the original motion and what we consistently said was that there needed to be a sufficient factual record that the court could review on which the entry of judgment could be based and the justification for continued detention.

[00:54:31] Speaker 00:
And so that's what the stipulation was designed to provide.

[00:54:33] Speaker 00:
And Mr. Cassini's counsel made a judgment that it was better for them to try and

[00:54:37] Speaker 00:
take a calculated risk as to their ability to challenge Kyemba eventually before the Anban Court, because of course this panel is bound by that decision, to try and go up on the record that they had rather than go through the procedures that were available in this procedure.

[00:54:52] Speaker 01:
Let me ask you a question related to that when you talk about Kyemba binding this court.

[00:54:58] Speaker 01:
Kimba does seem to deal with a different question.

[00:55:01] Speaker 01:
It deals with effectively a substantive due process question about whether there's a liberty interest of a habeas corpus petitioner to be released into the United States.

[00:55:11] Speaker 01:
And really, a lot of the laboring or in that case has to do with sovereign authority on the part of the political branches to make decisions about who comes in and who doesn't, and that that's not within the courts for medial power.

[00:55:26] Speaker 01:
better authority for you that there actually is circuit precedent saying that procedural due process does not apply to habeas corpus proceedings pursuant to Bumidiyan?

[00:55:40] Speaker 00:
Well, Your Honor, I think, first of all, the key in beholding and the way it addresses due process is not so limited.

[00:55:46] Speaker 00:
I mean, it doesn't couch itself as addressing only the sort of things you're describing.

[00:55:51] Speaker 00:
And, Your Honor, I think further in this decision.

[00:55:53] Speaker 02:
But wait, wait, wait, just to be clear on your answer to that,

[00:55:57] Speaker 02:
The issue wasn't remotely before the court.

[00:55:59] Speaker 02:
Nothing in that case involved the procedures for adjudicating detention, correct?

[00:56:04] Speaker 00:
No, it didn't involve procedures for adjudicating detention, but the court's language in Quiemba says quite flatly that due process does not apply.

[00:56:13] Speaker 00:
to individuals at Guantanamo.

[00:56:16] Speaker 00:
No.

[00:56:16] Speaker 02:
It says the due process clause is not a source of authority for the remedy of a release into the United States, C, and then has a parenthetical.

[00:56:28] Speaker 00:
But Your Honor, it says it's not an authority because decisions of the Supreme Court and of this Court, decisions the District Court did not acknowledge, hold that the due process clause does not apply to aliens without property or presence of the sovereign territory of the United States.

[00:56:42] Speaker 02:
It is for purposes of providing a source of a right for release into the United States.

[00:56:46] Speaker 02:
I mean, it just seems kind of crazy to me to think that a case where

[00:56:51] Speaker 02:
The right to release had already been fully adjudicated.

[00:56:54] Speaker 02:
No one was challenging those procedures.

[00:56:56] Speaker 02:
And the only issue was whether there were different sources, assertive sources of a right for a specific remedy of release into the United States.

[00:57:05] Speaker 02:
And in that context, the court says, due process clause, that's not a source of a right for release into the United States.

[00:57:11] Speaker 02:
See how we've dealt with exclusion.

[00:57:13] Speaker 02:
It has that, and cites an exclusion case in its quotation,

[00:57:16] Speaker 02:
That means we have decided that we decided there once and for all that when it comes to adjudicating the right to detain

[00:57:25] Speaker 02:
You've got no due process rights at all.

[00:57:26] Speaker 00:
Well, Your Honor, I think this would come as a surprise to both Mr. Cassini, who hasn't contended that the case doesn't control in this – in this instance, and I think it would also come as a surprise to the district court, both here and in other instances, which is routinely treated as holding.

[00:57:39] Speaker 00:
It would come as a surprise to the government.

[00:57:41] Speaker 00:
And Your Honor – it would come as a surprise to the government, Your Honor, which I think has repeatedly said – I don't – I don't agree.

[00:57:45] Speaker 06:
Well, again, it's a surprise to the three of us that you were focused on this case, because this case is not what we're talking about.

[00:57:51] Speaker 06:
Well, Your Honor – There was no question – I mean, I'm just stunned.

[00:57:53] Speaker 06:
I kept reading it.

[00:57:54] Speaker 06:
Well, Your Honor – Kyemba's not about what we're talking about.

[00:57:58] Speaker 00:
Well, two additional points, then, Your Honor.

[00:57:59] Speaker 00:
One is that this court in Rasul treated Kyemba as being part of the line of cases from this court predating Blumenty Inn that addressed Fifth Amendment rights extending to individuals outside the United States without proper – your presence here – cases like Paul and Jim – He's in the line of authorities.

[00:58:13] Speaker 05:
But when you look at that case, it's not about the issues that we are considering today.

[00:58:18] Speaker 01:
But that's actually what my question was that started this line of questioning.

[00:58:23] Speaker 01:
I wanted to hear your best authority for the proposition that

[00:58:29] Speaker 01:
in the briefing is tagged onto Quiemba, but as you say, there's more, and from your perspective, the more that you would commend us to read would be, as you said, Rasul.

[00:58:42] Speaker 00:
Rasul, this court in Omadwani, and we've also treated and described the statement of this court in the past that due process protections do not extend to individuals detained at Guantanamo.

[00:58:53] Speaker 00:
But Your Honor, this also, I mean, the broader point here is that

[00:58:57] Speaker 00:
It's – even if you think there's some concern about whether or not Kyemba binds in this instance, which – I mean, again, given that both Mr. Kassem concedes that it does, and it's long been the view of, I think, the district court that it does, I don't think is really seriously questioned outside of – has been seriously questioned by the parties of the court here.

[00:59:19] Speaker 00:
you're still in a position where there's this question, which I think some of the probing earlier got to, about whether or not there's some gap between the procedures that due process would guarantee, even if it applied here, and the procedures that are available guaranteed by McVinnie Inn and provided under case management ordering district court.

[00:59:39] Speaker 00:
And so again, reaching that type of question I don't think is really an option given the way this case has played out.

[00:59:48] Speaker 02:
When Bumerian talks about ensuring that the habeas process affords attorneys for the detainee a meaningful opportunity to challenge the government's case and courts have a meaningful opportunity to review the grounds for detention, do you view that as

[01:00:14] Speaker 02:
sourcing whatever procedural rights are needed for meaningful opportunity and meaningful review directly in the suspension clause, or is that bringing in due process, is that sort of the Matthews versus Eldridge balancing answer for due process?

[01:00:30] Speaker 00:
Your Honor, there are two separate things, the suspension clause and the due process clause.

[01:00:34] Speaker 00:
Yes.

[01:00:35] Speaker 00:
And Jimedian is very clear that it's looking only at the suspension clause, and it's clear in a couple of ways.

[01:00:40] Speaker 00:
One is that the Court of Jimedian actually says at one point that

[01:00:44] Speaker 00:
even if the procedures it was reviewing bear, the CSRT procedures, complied with due process, that would not end its inquiry under the suspension clause.

[01:00:51] Speaker 00:
It would still have further work to do.

[01:00:53] Speaker 02:
So the suspension clause might require more?

[01:00:55] Speaker 00:
The suggestion there is that it's possible that it might require more in certain instances.

[01:01:00] Speaker 00:
Mr. Kasseem's argument here, of course, is that the suspension clause exists and then the due process clause sort of layers over top of it and provides some additional set of procedures, but again, for reasons we've already discussed, I don't think it's clear how to sort that out.

[01:01:13] Speaker 00:
And the other way, Your Honor, that Mehmedian makes this clear is it talks about the fact that the suspension clause actually in the Constitution before the enactment of the Bill of Rights and before the addition of the new process clause.

[01:01:25] Speaker 00:
And that's why it looks in part at the history of habeas and it looks at sort of the unique role of habeas as a protection and separation of powers and other features of habeas.

[01:01:33] Speaker 00:
limits the analysis just to that clause.

[01:01:38] Speaker 01:
The due process clause was codifying procedural basics that were fundamental at the time the habeas corpus clause was included in the Constitution.

[01:01:48] Speaker 01:
And indeed, I guess our question is, what touchstone do we look to?

[01:01:53] Speaker 01:
Is there going to be a whole new habeas corpus

[01:01:56] Speaker 01:
procedural requisites doctrine that is separate from and parallel to due process in order to fulfill the premise of Boumediene that one has to have an ability to test the evidence against one, one has to have the ability to

[01:02:20] Speaker 01:
have access to exculpatory evidence, one has to have an adversary, meaningful process to get at the truth about the grounds for detention.

[01:02:30] Speaker 00:
So I think the way this has developed over the last decade since Boumediene is that the question has been, what does a meaningful opportunity within the confines of habeas mean?

[01:02:41] Speaker 00:
And it's been litigated under those premises.

[01:02:43] Speaker 00:
So I mean, again, the due process clause is sort of separate in that respect.

[01:02:47] Speaker 00:
And this has been treated as largely something stemming from Boumediene rather than drawn from a Matthew Friedrichs' Eldred type balancing, something like the Hombi decision or something like that.

[01:02:59] Speaker 01:
If we assume that SIPA has been functioning consistently with due process and then must function consistently with due process, what in those procedures is materially inadequate from the government's perspective vis-a-vis the case management procedures for the Guantanamo case?

[01:03:26] Speaker 01:
Are they really materially different?

[01:03:27] Speaker 01:
Because I thought your brief

[01:03:28] Speaker 01:
sort of made an analogy between them?

[01:03:30] Speaker 00:
Not just – Al Oda draws an analogy between the two.

[01:03:34] Speaker 00:
Right.

[01:03:35] Speaker 00:
I'd have to go back to the specific SIPA context to figure out exactly why it's only an analogy and it's not exactly the same.

[01:03:41] Speaker 00:
I think there are some differences perhaps related to what gets disclosed to a detainee himself, but that's a somewhat different question.

[01:03:48] Speaker 00:
But this court has recognized that by analogy, those procedures are generally considered adequate in criminal proceedings and something similar.

[01:03:55] Speaker 00:
has been put in place under Al Oda for these DTD proceedings.

[01:04:00] Speaker 02:
If they were held, if Mr. Kassim for some reason were being held in the territorial United States, a Navy brig somewhere, would he get CIPA procedures?

[01:04:14] Speaker 02:
Is there something more he would, I guess first would you agree if he were held in the territorial United States, he would get due process?

[01:04:22] Speaker 00:
I'm not sure what our answer to that question would be, Your Honor.

[01:04:25] Speaker 02:
I mean, I think it'd be – we certainly have not had a situation like that prior to this point.

[01:04:34] Speaker 02:
aliens seems to matter in the calculus of what rights you get.

[01:04:41] Speaker 00:
Certainly there an individual would have presence in the United States, and so their entitlement to due process rights is very much about argument for that.

[01:04:46] Speaker 02:
I'm trying to figure out what the process would be different.

[01:04:49] Speaker 02:
I mean, the whole assumption here, which Owen has explained to me, is that the meaningful opportunities to challenge a meaningful review under the Suspension Clause of the Median

[01:04:59] Speaker 02:
somehow has a gap between that and the due process clause.

[01:05:03] Speaker 00:
I'm very clear, that's not our position.

[01:05:05] Speaker 02:
Again, that's what I'm trying to understand, but it still sounds like there's maybe something different at Guantanamo than if they were here, and I'm just trying to, so there's sort of the suspension clause versus due process clause difference, and then is there a difference between being held at Guantanamo or being held in

[01:05:23] Speaker 02:
South Carolina.

[01:05:26] Speaker 02:
I don't – and maybe this is part of the frustration with how this case is teed up to us.

[01:05:29] Speaker 02:
I don't know if there's any gap at all that needs to be resolved to begin with.

[01:05:33] Speaker 00:
Well, Your Honor, our view certainly is that the procedures that are provided under the case management order, if due process applied at Guantanamo, would in fact comport with whatever due process rights an individual like Mr. Kasim has.

[01:05:47] Speaker 00:
But, of course, we don't reach that question because

[01:05:51] Speaker 00:
First of all, due process does not apply at Guantanamo.

[01:05:55] Speaker 02:
Does it matter if we say, okay, the suspension clauses command for meaningful opportunity to challenge and meaningful review does apply?

[01:06:04] Speaker 02:
Do you see any gap between that than what they would get if the due process clause applied to them?

[01:06:10] Speaker 02:
For procedural due process clause.

[01:06:12] Speaker 00:
Again, I don't think so, but what they are contending is that there is some gap.

[01:06:17] Speaker 00:
And so our point is only that to the extent they are asserting that there is some gap, there is no due process right that applies at Guantanamo as they concede and as the district court recognized in this case.

[01:06:29] Speaker 00:
And that in any event, it's not clear how any of their purported denials or due process are actually occurred or how he was denied due process in any respect in district court here.

[01:06:41] Speaker 02:
And just to make sure, because I want to make sure I don't

[01:06:44] Speaker 02:
If they were held for some reason in one of the United States, a federal facility in one of the United States, at least at this juncture, you're not aware of how that would change.

[01:06:57] Speaker 02:
the rights to which maybe the label due process rather than the suspension clause, or maybe not, would apply, but you're not sure how cases would be adjudicated differently?

[01:07:06] Speaker 00:
You're right.

[01:07:07] Speaker 00:
In the abstract, I can't give you an answer to that question.

[01:07:10] Speaker 00:
You think of a non-abstract example?

[01:07:12] Speaker 02:
How about a non-abstract example of something that might be different there versus here?

[01:07:16] Speaker 02:
Or you can't think of it.

[01:07:17] Speaker 02:
I mean, the answer might be you can't think of a difference.

[01:07:19] Speaker 00:
You know, I can think generally of ways in which the due process clause might, in other contexts, apply differently from a suspension clause.

[01:07:26] Speaker 00:
So, for example, if you were to bring a substantive due process claim, that would not be something available in the suspension clause.

[01:07:31] Speaker 02:
Cut all that aside for now.

[01:07:32] Speaker 00:
Right.

[01:07:32] Speaker 00:
Beyond that, I can't in the abstract, you know, describe for you how you feel.

[01:07:36] Speaker 02:
It's not clear to me how Matthew's balancing would get you anything more than a meaningful opportunity and meaningful review.

[01:07:41] Speaker 00:
And we certainly, we think that's true, Your Honor.

[01:07:44] Speaker 00:
But again, it's

[01:07:46] Speaker 00:
Because QAMBA exists, we don't have to necessarily spend a lot of time worrying about that delta, at least not in a case where there's no indication that there actually is such a delta.

[01:07:55] Speaker 02:
We don't even know if there's anything to worry about, though.

[01:08:17] Speaker 02:
All right.

[01:08:17] Speaker 02:
I think before we do rebuttal, I think we're going to go into closed session.

[01:08:21] Speaker 02:
Councilman is filing with the court, and you might have some information to share with us.

[01:08:25] Speaker 02:
So we'll take a brief recess.