[00:00:02] Speaker 00:
Good morning.

[00:00:03] Speaker 00:
May I please the court.

[00:00:27] Speaker 02:
Andrew Garahan for Petitioner Appellant Abdul Salam al-Hala.

[00:00:30] Speaker 02:
I'd like to reserve two minutes of my time for rebuttal.

[00:00:34] Speaker 02:
Unlike every other case that's been before this court that has upheld a petitioner's detention, the district court did not conclude that Abdul Salam al-Hala was a part of any organization.

[00:00:45] Speaker 02:
His detention is based solely on the idea that he provided substantial support to a group, only on the substantial support standard, a standard that on which almost no law exists.

[00:00:56] Speaker 02:
The allegations themselves relate mainly not to Al-Qaeda but to... But if we looked at it under a part of, why would it be any different?

[00:01:05] Speaker 03:
If it was an alternate ground.

[00:01:08] Speaker 02:
Your Honor, the part of standard, this court and courts in this circuit have made a live decision that what it is to be a part of and... It doesn't take much.

[00:01:17] Speaker 02:
Say that?

[00:01:17] Speaker 03:
It doesn't take much in this setting, right?

[00:01:19] Speaker 02:
It is a functional test, Your Honor, but... Being in the same safe house.

[00:01:26] Speaker 03:
You're a part of, right?

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That is what the court has found.

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And those sort of circumstances are not present here.

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So a dual slum was never found to be in a safe house or in a training camp or on a battlefield fighting in Afghanistan.

[00:01:40] Speaker 03:
Any of the circumstances where this court has previously... Well, it clearly doesn't have to be engaging in personal hostilities, right?

[00:01:46] Speaker 03:
It doesn't have to be personally engaging in hostilities.

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We've never required that.

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The court's not said that personal hostilities are necessary.

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We would say that substantial support, though, does require either combat or participation, not necessarily combat in hostilities, but needs to be in hostilities against the United States.

[00:02:06] Speaker 03:
Where do you get that from?

[00:02:08] Speaker 02:
Yes, Your Honor.

[00:02:09] Speaker 02:
And so in Albahani, this court has said that substantial support is support that is in hostilities against the United States.

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And Ali, they described it as support in the war.

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And the government in the report in 2016 from the White House referred to it as being an armed conflict against Al-Qaeda and other groups.

[00:02:30] Speaker 03:
Yeah, the entity that you're supporting or that you're part of is engaged in that.

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But you yourself don't need to be

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firing the missile or shooting the machine gun.

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We've never required that.

[00:02:45] Speaker 02:
Well, so there's only really been one substantial support case before this court, before, Your Honor, that was al-Bahani where it was upheld and in that case... No, I mean to say in the part of cases, you just need to be part of an organization that does that.

[00:02:58] Speaker 03:
You don't need to lift a weapon

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in helping them to be part of it.

[00:03:02] Speaker 02:
So that is what, that is, you know, some of the opinions, there have been decisions where somebody doesn't have to be fighting on a battlefield, but it still needs to be, in those cases, we'd say there's a difference between being a part of an organization, which is sort of a status when you're a part of something, you're in it, and the court would attribute in those cases, you know, what you've joined, you're supporting that.

[00:03:24] Speaker 02:
Support here, we would say, is different, though, Your Honor.

[00:03:27] Speaker 02:
Under the law of war, for example, we'd say that somebody who's not a combatant and not engaged in hostilities, as the district court explained, you can be detained if you were accompanying enemy forces when you were captured or if you were engaged in conduct that made you a imperative threat to security such that your detention was absolutely necessary.

[00:03:45] Speaker 02:
And then even under law of war, that's more of an internment, in fact.

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And looking at the Geneva Conventions, it would be when that person has been

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determined that they're no longer absolutely necessary to be held and even released.

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It's not an end of hostilities standard in that case.

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And that's why support is different.

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It also, the decisions the government conceded and the district were held in the Gurevich case that you have to be essentially a part of the enemy armed forces.

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So actually it's not a big range of difference.

[00:04:13] Speaker 02:
It's necessary to prevent people, detention of civilians who might be supporting war effort.

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from people who are taking part in the actual hostilities.

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There's a difference between who can be detained there on the one side and the other.

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And so substantial support is just a very narrow basis for detention.

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It also has temporal elements.

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We've been talking a lot about the conduct, the things you have to do.

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You need to be engaging in hostilities and in being an imperative threat.

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But it's also a temporal element, which means, for example,

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It has to be in the hostilities that are authorized under the AUMF.

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That's something that's, you know, in the war that started with September 11th.

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And it also needs to be ongoing at the time of the detainees' capture.

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It's as the district court held and as this court has held before that it needs to be ongoing.

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And Abul Salam's, the allegations against him, especially as related to this organization, EIJ, where he's alleged to have engaged in some travel facilitation for the group, doesn't meet that standard.

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It doesn't really even rise to support under any definition of it.

[00:05:14] Speaker 02:
So Abul Salam,

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you know, giving a little just brief background on him.

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He sort of straddles two worlds in Yemeni society.

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He is both a sheikh of a tribe, the tribes in the capital city, and he's also a sort of a

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not a politician, but he has close relationships with the internal security forces in the country and with the ruling party.

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And so he bridges these two worlds.

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When Yemen was looking to – is under pressure from – possibly from the West to sort of move foreign Arabs out of the country, the government turned to Abdul Salam and other sheikhs like him to try to ask that they help with that process.

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And so he was doing it at the behest of his government.

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The United States was aware that Yemen was deporting these men and didn't intervene in the process.

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Al-Qaida and any other group didn't ask for this to happen.

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He's not sending people out on missions or to fight in Afghanistan.

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He's not deploying them in any way.

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So it's not supportive.

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It's undermining these organizations and these individuals in Yemen when he is asking them and helping them to leave the country.

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Nor is it found at the district court that he posed an imperative threat whose detention remains absolutely necessary.

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And there's, I don't believe any allegation that there's a nexus to September 11th or to any hostilities against the United States as part of that travel program, which also was not ongoing at the time of his capture.

[00:06:33] Speaker 02:
The travel relates largely to, it's not exclusively to events in the 1990s and he was not... All of the arguments you just made are factual arguments.

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What's our standard of review for...

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This is a de novo question.

[00:06:48] Speaker 02:
It's a legal question, Your Honor, about whether this amounts to substantial support.

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And it does not.

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Like I said, it's not really support at all.

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It undermined these groups and these organizations.

[00:07:00] Speaker 02:
But on the legal question there, it doesn't make him a combatant.

[00:07:06] Speaker 02:
It's not engaging hostilities.

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It's not ongoing at the time of his capture.

[00:07:10] Speaker 02:
So that would make him not

[00:07:12] Speaker 03:
But I thought the gravity of your argument was that there are certain things the district court found that he did that you say he didn't do.

[00:07:21] Speaker 03:
And under that, and it's part of your argument of substantial support, but if the district court found that he in fact didn't do the things that, or he did do things that you're claiming he didn't do, what's our standard review for that?

[00:07:32] Speaker 02:
I may have misspoken.

[00:07:34] Speaker 02:
I did not mean to imply that

[00:07:38] Speaker 02:
We're saying that what he did is not support, even if you believe what the district court found him to have done, it's not substantial support, Your Honor.

[00:07:46] Speaker 02:
Sorry, thanks for letting me clarify that.

[00:07:48] Speaker 02:
He's also alleged to have engaged in activities with a group called the AAIA.

[00:07:55] Speaker 02:
I'll talk a little bit about why those activities were not support.

[00:07:58] Speaker 02:
I'd like to hold that for the closed session, if I may.

[00:08:00] Speaker 02:
But the AAIA also, you know, the way the standard works is it has to be found to be an associated force of Al-Qaeda or the Taliban.

[00:08:07] Speaker 02:
No allegation related to the Taliban here.

[00:08:10] Speaker 02:
But it only supports the tension if AIA is an associated force of al-Qaida, and it's not.

[00:08:15] Speaker 02:
Associated force also has sort of a conduct piece to it, as well as a temporal piece to it.

[00:08:20] Speaker 02:
The conduct piece is the group has to be a co-belligerent in the current hostilities with the United States.

[00:08:25] Speaker 02:
I see that I've – okay.

[00:08:27] Speaker 02:
It has to be a co-belligerent in hostilities against the United States in this comprehensive armed conflict.

[00:08:31] Speaker 02:
That is the September 11 conflict.

[00:08:33] Speaker 02:
That's why every time there's been an associated force case before this court, it's been a group that is fighting in Afghanistan against the United States and its coalition partners after September 11th.

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So co-belligerency means, you know, fighting alongside of.

[00:08:47] Speaker 02:
It's things like joining them on the battlefield, acting as their agent, providing systematic military support to them.

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So in part, when this court considered whether a group was an associated organization, the government argued and the court actually seemed to accept that associated meant that they effectively become the same organization.

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It's not enough that an organization engages in terrorism or embraces the ideologies of or praises activities of Al-Qaeda.

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They need to go beyond that to actually be working together.

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And again, there's a temporal element.

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So it has to be in the September 11th conflict that starts with September 11th authorized under AUMF.

[00:09:23] Speaker 02:
It also has to be, though, the organization has to be an associate force at the time that

[00:09:29] Speaker 02:
that the alleged conduct has occurred.

[00:09:31] Speaker 02:
That's in the NDAA that, you know, you're essentially sported an associated force engaged in hostilities against the United States.

[00:09:38] Speaker 01:
Counsel, can I ask you about your due process argument?

[00:09:41] Speaker 02:
Yes, Your Honor.

[00:09:42] Speaker 02:
Yes, Your Honor.

[00:09:43] Speaker 01:
So if we were to assume that some kind of due process rights apply in Guantanamo, what standards would you suggest that we use to determine that question, and what cases would you rely on for that?

[00:09:56] Speaker 02:
to determine whether due process applies?

[00:09:58] Speaker 01:
Yes, Your Honor.

[00:09:58] Speaker 01:
Well, assuming it applied.

[00:10:00] Speaker 01:
Oh, assuming it applies.

[00:10:00] Speaker 01:
What would be the standards for assessing whether due process was afforded?

[00:10:05] Speaker 02:
Sure.

[00:10:05] Speaker 02:
So we'd say a few things.

[00:10:09] Speaker 02:
whether evidence, whether there's been reliance on unreliable evidence, that can raise a due process question.

[00:10:15] Speaker 02:
So we'd say that, for example, the hearsay in these cases, and I know this course said that hearsay is always admissible but needs to be reliable hearsay.

[00:10:24] Speaker 02:
And there's sort of a combination of factors here that make a lot of the evidence that's involved in these cases, and in this particular case, I'm sorry,

[00:10:32] Speaker 02:
not reliable or at least the court was not able to properly assess its reliability.

[00:10:36] Speaker 03:
Are any of those different than the analysis that was conducted under the suspension clause?

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Does it make a difference in this case?

[00:10:44] Speaker 02:
We'd say that as far as procedural matter that the suspension clause meaningful opportunity rights are really coextensive with procedural due process.

[00:10:54] Speaker 03:
So if they're coextensive there's

[00:10:57] Speaker 03:
There's nothing you would get that you haven't already gotten if we said the due process clause applied here?

[00:11:05] Speaker 03:
Well, on these facts, on this case that you're arguing.

[00:11:08] Speaker 02:
Your Honor, we would say that there are things that whether you're looking at through a suspension clause point of view or... Well, how would it make a difference here?

[00:11:16] Speaker 03:
Sure, so... Looked at through due process clause instead of suspension clause.

[00:11:19] Speaker 03:
Well... What difference does it make for your client?

[00:11:21] Speaker 02:
I can't... I'd like to... I want to be careful about getting into information that might be classified,

[00:11:25] Speaker 02:
There's a large amount of ex parte evidence in this case, in particular information about sources that has been withheld from us as Council of Security Clearances.

[00:11:35] Speaker 03:
And you think that that would be different on the due process clause?

[00:11:41] Speaker 02:
We think that either way there's an opportunity to have an opportunity to know

[00:11:51] Speaker 03:
I mean the National Security Matters ex parte is used commonly and no one's thought that that's a violation of due process.

[00:12:00] Speaker 02:
Your Honor, that is true but in those cases there needs to be some sort of opportunity to respond.

[00:12:06] Speaker 02:
There needs to be a meaningful or a substitute given that gives you an opportunity to respond.

[00:12:12] Speaker 03:
In this case, the case management order allowed counsel to seek declassification.

[00:12:18] Speaker 03:
Did you seek it beyond?

[00:12:20] Speaker 03:
the general request that the return be declassified.

[00:12:24] Speaker 03:
Did you tailor it in any specific way?

[00:12:25] Speaker 02:
Yes.

[00:12:26] Speaker 02:
This case, part of the reason that, you know, we're here 18 years later is that there's a long period of time in this case where the district courts were reviewing information in this court for declassification review.

[00:12:38] Speaker 02:
And some was declassified, but large amounts still were not.

[00:12:43] Speaker 02:
And, Your Honor, the other thing is that it was... And what's the due process violation in that?

[00:12:49] Speaker 03:
That seems to me to be the very nature of due process when you have a national security matter.

[00:12:55] Speaker 03:
Well, due process would still require... You have an opportunity to seek declassification, you make your argument to the court, and you lose.

[00:13:03] Speaker 03:
That happens.

[00:13:06] Speaker 02:
It does happen, Your Honor, we're aware.

[00:13:08] Speaker 02:
It's... And that's a violation of due process?

[00:13:10] Speaker 02:
Well, even when that happens, there needs to be a chance to be able to have some substitute to argue so that you can argue about what's actually happening with this evidence.

[00:13:22] Speaker 02:
So we've got ex parte evidence and hearsay and no ability to confront the person who's doing it.

[00:13:27] Speaker 02:
So you're not able to test, for example, the hearsay through the adversarial process.

[00:13:31] Speaker 02:
when you can't know any information about the person who's speaking, who's conveying that hearsay.

[00:13:36] Speaker 02:
Due process requires at least an opportunity to respond, even if it's not obtaining that expert information.

[00:13:41] Speaker 02:
We'd also say, Your Honor, that some of this is arbitrary.

[00:13:44] Speaker 03:
Maybe we can take this further up in the closed session.

[00:13:46] Speaker 03:
I'd like to have some sense of how you think the due process clause would have led to a different result here than suspension clause analysis did, because anyway.

[00:13:58] Speaker 05:
Before you sit down.

[00:13:59] Speaker 05:
Yes, Your Honor.

[00:14:00] Speaker 05:
You said that the suspension clause is coextensive with the Fifth Amendment due process clause.

[00:14:06] Speaker 05:
Where do you get that from?

[00:14:08] Speaker 02:
We'd say that this, you know, under Bermedian... Maybe I misheard you.

[00:14:13] Speaker 02:
Maybe I spoke a little too loosely when I said it was coextensive.

[00:14:15] Speaker 02:
We'd say that, though, that the procedural rights are at least as broad as the due process rights as guaranteed in the sort of idea of having a meaningful hearing under Bermedian.

[00:14:21] Speaker 05:
The suspension clause says that the writ shall not be suspended except in times of war.

[00:14:28] Speaker 05:
and I forget what the rest of it is.

[00:14:32] Speaker 05:
But that's the writ as it existed in 1789.

[00:14:36] Speaker 05:
The Supreme Court in Boomedine went through a historical analysis of the extension of the writ beyond the sovereign territory of England at that time.

[00:14:48] Speaker 05:
What historical analysis can you come up with that indicates that these procedural rights you're talking about were part of the writ as it existed in 1789?

[00:14:58] Speaker 05:
Do you have any historical basis for saying that?

[00:15:04] Speaker 02:
Your Honor, I would just point to the median where it said that the suspension clause guarantees a meaningful opportunity to make the case here, Your Honor.

[00:15:12] Speaker 02:
That tells you nothing.

[00:15:14] Speaker 05:
Meaningful as compared to what?

[00:15:16] Speaker 05:
As compared to not having the writ of habeas corpus.

[00:15:19] Speaker 05:
But meaningful as of 1789?

[00:15:21] Speaker 05:
And I guess your answer is you have no historical support whatsoever for the proposition you're putting forward here.

[00:15:30] Speaker 02:
Your Honor, the name of the case escapes me, but this court describing

[00:15:34] Speaker 02:
the suspension clause and the rights under habeas talk about, I believe, is a tree with many branches and that Bumedian and these Guantanamo cases have, you know, it's a new branch of the tree that is grown, so it's not confined solely to that, you know, what it was in 1789.

[00:15:54] Speaker 05:
It's a living suspension clause, is that what you're saying?

[00:15:57] Speaker 05:
I'm sorry, Your Honor.

[00:15:58] Speaker 05:
It's a living suspension clause.

[00:16:00] Speaker 02:
I guess if you want to put it, if the tree is living, then yes, it's a living suspension post, Your Honor, yes.

[00:16:07] Speaker 01:
Thank you.

[00:16:08] Speaker 01:
I'm not sure that's what Judge Brown meant in al-Bahadi when she wrote that.

[00:16:12] Speaker 03:
Thank you, Your Honor.

[00:16:16] Speaker 03:
We'll give you back a couple minutes.

[00:16:18] Speaker 03:
We're here for the government now.

[00:16:23] Speaker 06:
The evidence in this case establishes that the petitioner here was both part of and substantially supported al-Qaeda and associated forces, and I'm looking forward to discussing that evidence in more detail in the closed session.

[00:16:37] Speaker 06:
For present purposes, I'd like to start where petitioners started, and I think the Court spent the bulk of its time, which is the question

[00:16:42] Speaker 06:
the substantial support standard.

[00:16:45] Speaker 06:
Of course, as Judge Griffiths was pointing out, if this court rules that Al-Hilal is part of Al-Qaeda, it's not, those questions aren't implicated here, but as the court recognized in Albahani, the evidence that's gonna demonstrate someone's both part of and substantially supported Al-Qaeda and associated forces frequently will overlap, frequently will have individuals who their conduct would establish both standards, and this case is, I think, an example of exactly what

[00:17:11] Speaker 06:
this Court had in mind in Al-Bahani.

[00:17:15] Speaker 06:
To respond to some petitioner's points here, there's no particular temporal limitation drawn from the text of the AUMF or the NDA itself that would support the kind of limitations that Fisher's trying to read into those provisions.

[00:17:30] Speaker 06:
And it's certainly true, as the District Court found here, that

[00:17:33] Speaker 06:
This petitioner was involved in support activities over a period of years, had a long established track record of these activities right up to just a few months before 9-11.

[00:17:42] Speaker 06:
So even accepting the premise that hostilities only began on 9-11, which of course is not the government's view, even accepting that premise,

[00:17:49] Speaker 06:
The district court recognized there's no indication that Petitioner here stopped providing support, did anything to dissociate himself from the organizations that he had supported, or did anything to otherwise terminate the kind of assistance he was providing and had a long track record of providing prior to 9-11.

[00:18:11] Speaker 06:
Moving to the specific questions about associated forces, you know, the district court here, again, looked through the evidence, much of which, frankly, is not seriously contested about how those forces came to be associated with Al-Qaeda and how they interacted with Al-Qaeda and properly concluded that

[00:18:32] Speaker 06:
The facts that it found as to those organizations rose to levels of substantial support that both those organizations, after bin Laden's fatwa in 1998, either signed on to the fatwa or expressed support for bin Laden and began to target Westerners to engage in attacks on Western targets, including the U.S.

[00:18:54] Speaker 06:
Embassy in Albania, the British Embassy in Yemen, kidnapping of Western tourists in Yemen,

[00:19:00] Speaker 06:
So these organizations, you know, did in fact begin to join that fight and were in fact associated forces of Al-Qaeda as the district court properly found.

[00:19:09] Speaker 06:
Unless there are specific questions about the due process.

[00:19:13] Speaker 03:
Yeah, there are.

[00:19:14] Speaker 03:
There are.

[00:19:15] Speaker 03:
So why doesn't the due process clause apply here?

[00:19:19] Speaker 06:
We are a couple of points.

[00:19:20] Speaker 06:
So petitioners advanced, I think, two different due process arguments.

[00:19:24] Speaker 06:
So the procedural due process argument.

[00:19:25] Speaker 03:
That's the one I'm interested in.

[00:19:26] Speaker 06:
Procedural due process.

[00:19:27] Speaker 06:
So this is an initial matter, Your Honor.

[00:19:28] Speaker 06:
That argument's been forfeited in this case.

[00:19:30] Speaker 06:
The petitioner didn't advance procedural due process argument in district court.

[00:19:33] Speaker 06:
There's a reason there's no opinion from the district court.

[00:19:35] Speaker 06:
assessing the procedural due process argument.

[00:19:39] Speaker 06:
The most that they pointed to in their reply brief for where they raised such an argument as a passing reference to due process in a couple of motions without any developed argument.

[00:19:48] Speaker 06:
So that argument's forfeited here just as a similar argument was forfeited in Halalby.

[00:19:53] Speaker 06:
So even if this court were to set aside, excuse the forfeiture in this context,

[00:20:02] Speaker 06:
There are two additional points about the procedure of due process argument.

[00:20:05] Speaker 06:
One is that the process that was provided here far exceeds anything the due process clause would guarantee even if it applied in this context.

[00:20:15] Speaker 06:
And we know that in part by looking at the Supreme Court's decision in Hamdi.

[00:20:18] Speaker 06:
there in describing the process that was due to a U.S.

[00:20:22] Speaker 06:
citizen detained in the United States, the Supreme Court laid out a set of procedures.

[00:20:27] Speaker 03:
I'd like you to back up and tell me why you think the due process clause shouldn't apply here.

[00:20:32] Speaker 03:
What's the argument?

[00:20:33] Speaker 03:
You're saying if it did, the process was adequate.

[00:20:36] Speaker 03:
I understand that, but I want you to deal with the issue that Judge Rao and I have raised about whether the due process clause applies.

[00:20:44] Speaker 03:
Right.

[00:20:46] Speaker 03:
How are we supposed to think about that?

[00:20:48] Speaker 03:
How are we supposed to decide that?

[00:20:50] Speaker 06:
Your Honor, the Supreme Court has in numerous decisions and this court has in other decisions made clear that the due process clause doesn't apply to individuals without property or presence in the United States.

[00:21:02] Speaker 06:
Guantanamo fits that bill.

[00:21:04] Speaker 06:
My understanding is that petitioner thinks Boumediene somehow dictates a different analysis, but the analysis that was given in Boumediene was specific to the suspension clause.

[00:21:13] Speaker 03:
That's what the case was about, but the court, as I read Boumediene,

[00:21:17] Speaker 03:
The court gave us a way to think about this, right?

[00:21:21] Speaker 03:
And we're supposed to see if the asserted constitutional right, it would be impracticable or anomalous in this setting.

[00:21:32] Speaker 03:
And we're supposed to make certain that there's an opportunity for meaningful review.

[00:21:36] Speaker 03:
That was the analysis that some of the judges on this court used in the ex post facto case to find that the ex post facto clause did apply there.

[00:21:44] Speaker 03:
Why shouldn't we use that analysis to determine whether the due process clause applies?

[00:21:50] Speaker 06:
Your Honor, because the suspension clause, as the Supreme Court made clear in Bumedian, has a unique

[00:21:56] Speaker 06:
quality about it, it's unique in terms of its importance to the separation of powers, and it's unique in being in the Constitution at the time it was ratified, unlike the Fifth Amendment, which of course doesn't come until later.

[00:22:10] Speaker 06:
So the fact that the suspension clause might have a different scope and different set of protections.

[00:22:15] Speaker 03:
I'm glad you didn't say, and it's only an amendment to the Constitution.

[00:22:18] Speaker 06:
No, amendments count too.

[00:22:20] Speaker 05:
I'm not here to dispute that.

[00:22:22] Speaker 05:
Isn't there an easy answer?

[00:22:24] Speaker 05:
I mean, you're dancing around it, but there's a direct answer to the question.

[00:22:31] Speaker 05:
It's Johnson versus Eisenhower, it's Verdugo, and it's Zabados.

[00:22:39] Speaker 05:
There's three Supreme Court cases saying that the Constitution does not apply beyond the sovereign territory of the United States to aliens.

[00:22:49] Speaker 05:
Combatants are otherwise.

[00:22:51] Speaker 06:
Right, and that's the next part of the answer.

[00:22:53] Speaker 06:
So the first part is just to address why.

[00:22:56] Speaker 05:
No, not at all.

[00:22:58] Speaker 05:
Let me drop a footnote to that.

[00:23:00] Speaker 05:
There's a case, you know, a lot of these cases I can't pronounce the names.

[00:23:05] Speaker 05:
And I'm also curious about why some of them are Albahani versus United States and others are Albahani versus Obama or Albion.

[00:23:16] Speaker 05:
Do you know what the?

[00:23:17] Speaker 04:
It may just be an artifact of how cases were titled when they were filed, but... In 1789.

[00:23:26] Speaker 05:
There's an opinion by Judge Henderson, and I'm going to try to pronounce it, and I don't remember whether you cited it.

[00:23:35] Speaker 05:
It's Al-M-A-D-H-W-A-N-I.

[00:23:40] Speaker 04:
Al-Mahdwani, yes.

[00:23:41] Speaker 04:
Okay.

[00:23:42] Speaker 04:
Did you cite that case?

[00:23:43] Speaker 04:
I believe we did, but I don't know.

[00:23:46] Speaker 05:
The argument there was that under the due process clause, the evidence which was not made part of the record was a violation of the due process clause during the military commission hearing in Guantanamo.

[00:24:08] Speaker 05:
The court unanimously rejected that argument, which relied on Garner versus Louisiana, which is a procedural due process case.

[00:24:16] Speaker 05:
Rejected that argument, citing Kayemba, held that Kayemba ruled that the procedural due process clause does not apply to Guantanamo.

[00:24:27] Speaker 05:
Right.

[00:24:27] Speaker 05:
Can you possibly swear that with the Quassel case?

[00:24:32] Speaker 06:
Your Honor, I believe Mudwani was discussed a bit in the Kaseem decision.

[00:24:38] Speaker 06:
Obviously the court in Kaseem

[00:24:40] Speaker 06:
concluded that that question remained open under circuit precedent.

[00:24:44] Speaker 06:
Of course, we've also, you know, pointed out that this court has, in other contexts, you know, for example, in the Peoples-Mojahedin case, applied the same, you know, Verdugo and Eisen-Treger analysis to procedural due process claims.

[00:24:58] Speaker 06:
So we don't think there's any reason.

[00:24:59] Speaker 06:
And Jiffre.

[00:25:00] Speaker 05:
Which was not cited in Crosse.

[00:25:04] Speaker 06:
That might be correct.

[00:25:06] Speaker 06:
I don't remember exactly which case, whether that case was cited or not.

[00:25:09] Speaker 06:
But certainly, you know, because the suspension clause is a different type of constitutional provision, that's sort of what motivates a lot of the analysis in Blumetian that's not present, you know, for something like the Fifth Amendment, whereas you point out the Supreme Court has repeatedly declined to extend those protections outside the United States' borders.

[00:25:32] Speaker 06:
Now, of course, again, as we say,

[00:25:34] Speaker 06:
that those arguments, particularly as a procedural due process, were forfeited here and in any event, the procedures that were given here far outstripped those that were envisioned in HMDI as satisfying due process.

[00:25:46] Speaker 06:
So I don't know if it's necessary for the court to reach that question.

[00:25:50] Speaker 06:
Do you know how many detainees are now being held at Guantanamo?

[00:25:54] Speaker 06:
The exact number I'm not certain.

[00:25:55] Speaker 06:
I believe it's something like 40, but.

[00:25:59] Speaker 05:
But they're not all being held.

[00:26:01] Speaker 05:
under the authorization to use military force, are they?

[00:26:08] Speaker 06:
I don't know the answer specifically to that question.

[00:26:11] Speaker 05:
I hesitate to guess.

[00:26:12] Speaker 05:
Well, because, I mean, one of the submissions of counsel here is that when hostilities end, then the person is not being detained for punitive purposes and that person would be released from Guantanamo.

[00:26:28] Speaker 05:
But some of the perpetrators

[00:26:32] Speaker 05:
of the bombing on 9-11 are not going to get released even if hostilities end.

[00:26:40] Speaker 06:
Your Honor, if someone were, for example, serving a duly imposed sentence from the military commissions, I could imagine them not being released at the termination of hostilities.

[00:26:49] Speaker 06:
I don't know exactly what the facts on the ground are as to that.

[00:26:52] Speaker 06:
But, I mean, certainly everyone agrees that, by and large, absent some circumstance like that, at the end of hostilities, the authority to, you know, hold people under the... I just wonder how that squares with the way we handled detainees in World War II.

[00:27:09] Speaker 05:
The Eisenhower case dealt with civilian employees, German civilian employees who were tried and convicted and held in the Landsberg prison, which at one time had 600 prisoners there, and a good many of them were executed.

[00:27:27] Speaker 05:
I mean, how does that square with the idea that you get released when hostilities end?

[00:27:31] Speaker 05:
And by the way, are the hostilities ended with the Taliban now?

[00:27:39] Speaker 06:
That case, that particular question isn't implicated here because the evidence with respect to this petitioner relates to Al Qaeda and associated forces.

[00:27:48] Speaker 06:
That's a rhetorical question.

[00:27:52] Speaker 06:
You know, in terms of your specific question about, I certainly agree that it's difficult to square an extension of the Fifth Amendment to Guantanamo with that decision.

[00:28:04] Speaker 06:
That's, I think, part of why, you know, when the Bomedian Court spent so much time focused on the suspension clause, that's a good reason to believe that when it focused on the suspension clause, it meant its analysis to apply to the suspension clause and to take seriously its admission that it was not deciding, you know, the substantive content of the law,

[00:28:21] Speaker 03:
Then do you take issue with those judges in this court in Al-Bulul that used Boumediene to say the ex post facto clause applied?

[00:28:29] Speaker 03:
Was that mistaken?

[00:28:32] Speaker 03:
That was Justice Kavanaugh, by the way.

[00:28:34] Speaker 03:
Right.

[00:28:35] Speaker 06:
I hesitate to give a definitive position on that.

[00:28:37] Speaker 03:
No, but I think it's important.

[00:28:39] Speaker 03:
I mean, the question is, is Boumediene solely about the suspension clause or does it tell us that it's possible that other constitutional protections apply there?

[00:28:50] Speaker 03:
one has to use the same analysis that the court went through to say that the suspension clause applies there.

[00:28:57] Speaker 03:
It's reading Boumedine, which we've been trying to do for a long time.

[00:29:01] Speaker 03:
Certainly.

[00:29:02] Speaker 06:
My understanding is that in Al-Bulul, the government didn't sort of contest the notion that that same analysis could be used, but believed it prevailed over the analysis anyway.

[00:29:16] Speaker 06:
whether or not that's true, it still wouldn't answer the question of whether, you know, again, the ex post facto clause which like the suspension clause exists in the constitution at the time of its ratification and might protect a certain set of rights independent of what the Fifth Amendment protects would, whether that wouldn't really inform the Fifth Amendment analysis particularly where the Supreme Court has repeatedly declined to extend Fifth Amendment protections outside the United States.

[00:29:44] Speaker 06:
Again, I'd just like to return to the point that the procedural due process argument here in particular has been forfeited, and I don't believe the court necessarily needs to reach it.

[00:29:51] Speaker 01:
Counselor, in the cases in which the Supreme Court has declined to extend the Fifth Amendment, was there any distinction made at all in any of those cases between so-called procedural and substantive due process?

[00:30:03] Speaker 06:
Not that I'm aware of, Your Honor, no.

[00:30:08] Speaker 06:
If there are no further questions, I'll move forward to the closed session.

[00:30:12] Speaker 06:
Okay, thank you.

[00:30:24] Speaker 02:
Thank you.

[00:30:26] Speaker 02:
I'd like to first address the waiver issue here.

[00:30:30] Speaker 02:
I think that it's clear if you look at the documents that we cite in our brief that this procedural due process question is not waived.

[00:30:36] Speaker 02:
It was raised below and we've made procedural arguments throughout this case.

[00:30:41] Speaker 02:
And then court below decided that in fact, you know, it was not going to give us documents that we're asking for under due process.

[00:30:49] Speaker 02:
and that this court should indulge presumptions against the waiver of rights, such fundamental rights as due process.

[00:30:55] Speaker 01:
Can you explain to me the distinction that you're making between what you call procedural due process claim in this context versus a substantive due process claim in this context?

[00:31:05] Speaker 02:
Sure.

[00:31:05] Speaker 02:
Yes, you're on there.

[00:31:08] Speaker 02:
The substantive claim here is that

[00:31:12] Speaker 02:
You know, as the Supreme Court outlined in Salerno, the idea that once a punishment has exceeded, once a detention has exceeded its purposes, it becomes impermissibly punitive.

[00:31:25] Speaker 02:
It's an impermissible restriction on liberty.

[00:31:28] Speaker 02:
And that's what we have here today.

[00:31:30] Speaker 02:
Because of Deul Salaam, it's... Sounds like an 8th Amendment challenge.

[00:31:35] Speaker 02:
This is a question, I mean, we would allege that, or we would say that there probably are some Eighth Amendment issues here as well, but that's not the focus of where we are.

[00:31:44] Speaker 02:
It's that Bill Swahm is being held as necessary and appropriate under the AUMF, as the courts have described it.

[00:31:54] Speaker 02:
And because he is not a

[00:31:57] Speaker 02:
Because he is not a combatant, he's a civilian, as the district court explained under the law of war, there's really only two ways to hold somebody like that.

[00:32:06] Speaker 02:
He can either have been captured while he's accompanying enemy forces, which essentially makes him more like a combatant or a POW, or it can be when he is, and that's not alleged, and that he could be an imperative threat to security.

[00:32:20] Speaker 02:
But as described, that's really more of a-

[00:32:23] Speaker 05:
I'm sorry.

[00:32:23] Speaker 02:
He can be an imperative threat to security such that his detention is absolutely necessary in those hostilities.

[00:32:30] Speaker 02:
But that's really not a detention at all.

[00:32:32] Speaker 02:
It's an internment until he is no longer a threat, until that threat has ended.

[00:32:36] Speaker 02:
So it's not until the end of the war.

[00:32:38] Speaker 02:
So we'd say that under Salerno, he can't just be held until the end of the war indefinitely.

[00:32:42] Speaker 02:
He needs to be released when that point has been reached, and that point has been reached, and thus it's impermissibly punitive.

[00:32:47] Speaker 02:
And that's the main substantive, the thrust of the substantive due process argument there.

[00:32:53] Speaker 01:
Obviously that, you know... Does it do any work to say that that's a substantive due process claim as opposed to just a due process claim where you're being deprived of your liberty without due process of law?

[00:33:06] Speaker 01:
I'm, you know, I'm not sure that he's... I'm just wondering what work the distinction makes between procedural and substantive due process in this particular detention context.

[00:33:16] Speaker 02:
Sure.

[00:33:16] Speaker 02:
I'm not sure that it necessarily does a big difference to call it substantive versus procedural.

[00:33:20] Speaker 02:
The issue is that he's been deprived of liberty unjustly and there's some, I guess the difference is that substantively we'd say there's some deprivations of liberty that are just impermissible no matter what the process involved is and that's where the substantive piece of it comes in, Your Honor.

[00:33:34] Speaker 02:
I also would like to address the application of the clause in general.

[00:33:38] Speaker 02:
I think, Judge Griffith, you laid out the test that we would recommend, which is that Boomedian says that when you're applying the Constitution at Guantanamo, it's a practical test.

[00:33:48] Speaker 02:
It's how Boomedian reached the idea that the suspension clause applies, how the majority of the... And when we get in the closed session, I want you to tell me how that makes a difference here, because I don't... Sure.

[00:33:58] Speaker 02:
Yes, and I understand your honor.

[00:33:59] Speaker 02:
Yes, absolutely.

[00:34:05] Speaker 02:
It's how the majority of the judges sitting on Bonk in this court in Malibu, including in Judge Rogers' concurrence in that case, agreed that the ex post facto clause should apply and it's the same here.

[00:34:19] Speaker 03:
It's a practical consideration and the practical consideration is... What do you do with your friend's argument that both ex post facto and suspension clause are different than the Fifth Amendment because they're

[00:34:30] Speaker 03:
part of the original Constitution and part of what the writ of habeas corpus meant to the framers, as Judge Randolph is pointing out.

[00:34:43] Speaker 02:
Your Honor, I'd say that it's all in the Constitution.

[00:34:45] Speaker 02:
And Bumedian didn't draw a distinction between, well, this is an amendment versus, as you said, this is one in our... But it was looking at habeas, right?

[00:34:53] Speaker 03:
Habeas is different.

[00:34:54] Speaker 03:
Habeas is ancient.

[00:34:56] Speaker 03:
Habeas is historical.

[00:34:57] Speaker 03:
And aren't we supposed to be engaged

[00:34:59] Speaker 03:
in a historical inquiry, and we're talking about what rights adhere during the habeas process.

[00:35:06] Speaker 02:
Well, Your Honor, I think that the Boumediene test is saying, broader than that, that the Constitution can apply to people who are detained within the territory of the United States, and that the way you decide whether it applies or not, particularly in Guantanamo is looking at it in this practical way, and whether it would interfere with the military mission at Guantanamo, and extending due process in this case would not interfere with the military

[00:35:27] Speaker 02:
mission at Guantanamo.

[00:35:29] Speaker 02:
This is particularly in a dual slums case for reasons that I'm happy to explain in more detail in the closed session, Your Honor.

[00:35:37] Speaker 05:
So it's just the due process clause in the Fifth Amendment, right?

[00:35:41] Speaker 05:
Not the double jeopardy clause?

[00:35:43] Speaker 02:
Well, we're only addressing the due process issues here today.

[00:35:46] Speaker 05:
Not the right to remain silent?

[00:35:48] Speaker 05:
The privilege of self-incrimination?

[00:35:52] Speaker 05:
Why is it that these other parts of the Fifth Amendment don't apply but only the due process clause does?

[00:35:58] Speaker 02:
We're only addressing the due process issues.

[00:36:00] Speaker 02:
Some of those, you know, we'd be getting into arguments about is this criminal versus the civil proceeding and things like that.

[00:36:06] Speaker 02:
So here, it's just the focus on due process in the Fifth Amendment.

[00:36:09] Speaker 05:
Well, you know, I don't know if that's a sufficient response because if you read Justice Jackson's opinion in Eisenhower, he said if we apply the Fifth Amendment to aliens who are outside the sovereign territory of the United States,

[00:36:25] Speaker 05:
There would be no legitimate policy or legal basis for not applying all these other amendments, like the Second Amendment, the right to bear arms, or the Eighth Amendment, and so on.

[00:36:40] Speaker 05:
And he went through them, each one.

[00:36:42] Speaker 05:
So he fought, and the Supreme Court

[00:36:45] Speaker 05:
The majority thought that an argument against applying the Fifth Amendment was the argument that if we do that, if we take that step, there's no stopping point.

[00:36:57] Speaker 05:
And I'm asking, what is the stopping point?

[00:37:00] Speaker 02:
You know, Your Honor, the, in Eisenhower.

[00:37:03] Speaker 05:
And a right to jury trial.

[00:37:05] Speaker 02:
The, the, the, in Eisenhower,

[00:37:11] Speaker 02:
I guess I would say, you know, it might sound like a broken record, but to go back to Boumediene, it's a practical consideration.

[00:37:17] Speaker 02:
And so as those questions would come up, those should be practically considered.

[00:37:20] Speaker 02:
And some of them it seems like would be maybe impractical to do, but those aren't, and maybe not, and those are not questions that are currently here with us.

[00:37:28] Speaker 05:
And Eisen-Tragger also has been where… Is that a legal argument, a practical consideration?

[00:37:33] Speaker 02:
Yes, Your Honor.

[00:37:34] Speaker 02:
In Boumediene, when the court was describing how it was going to decide whether a suspension clause applied, it asked questions about how the detainees were being held and where they were being captured.

[00:37:45] Speaker 02:
what the practical implications would be of applying that portion of the Constitution.

[00:37:50] Speaker 02:
In this case, the fact, all the other facts are the same as they were in Al-Bulul and in Bumerian as far as, you know, the details of, you know, not specifically exactly the same obviously, but the general outlines of where they were captured and certainly where they were being held, which is at Guantanamo.

[00:38:03] Speaker 02:
And so it boils down to this practical question.

[00:38:05] Speaker 05:
So there was a lot of evidence that was that secret that we can't talk about in this open session.

[00:38:11] Speaker 05:
And other evidence that you haven't seen is top secret.

[00:38:15] Speaker 05:
And by way of hypothetical, let's suppose that there are various and sundry generals and CIA agents and also informants involved in all of this and you want access to that information and you want a due process trial where the individual faces his accusers, right?

[00:38:38] Speaker 05:
Aren't they practical considerations that argue against the due process clause, that you'd have to bring all these people in to a public trial?

[00:38:48] Speaker 02:
Your Honor, I'd really prefer to address that in the classified session so I can talk about details particular to this case.

[00:38:55] Speaker 02:
Okay.

[00:38:56] Speaker 00:
Don't forget.

[00:38:56] Speaker 02:
I will address that question, yes, Your Honor.

[00:39:04] Speaker 03:
I think we will now adjourn.

[00:39:06] Speaker 03:
I'll let the court prepare for the closed session.

[00:39:09] Speaker 03:
Thank you.