[00:00:00] Speaker 10:
Case number 19-5079, Abdul Salam Ali Abdul Rahman Al-Hila, Detainee Camp Delta, also known as Abdel Salam Ali Al-Hila, and Abdul Wahab Ali Abdul Rahman Al-Hila, as next friend of Abdul Salam Ali Abdul Rahman Al-Hila, at balance, versus Joseph R. Biden Jr., President of the United States, et al.

[00:00:21] Speaker 10:
Mr. Zients, for the at balance, Ms.

[00:00:23] Speaker 10:
Harrington, for the at police.

[00:00:26] Speaker 01:
Good morning, counsel.

[00:00:27] Speaker 01:
Just a reminder that because we're in public session today in a case involving classified material, we'll refrain from referring to any classified material during the course of the arguments this morning.

[00:00:37] Speaker 01:
Mr. Zients, please proceed when you're ready.

[00:00:40] Speaker 09:
Thank you very much, your honor.

[00:00:41] Speaker 09:
Good morning, and may it please the court on behalf of petitioner Abdul-Salam Al-Hilal.

[00:00:47] Speaker 09:
Since this court granted unbanked review, the government has abandoned its argument.

[00:00:51] Speaker 09:
The due process clause has no application in Guantanamo Bay.

[00:00:55] Speaker 09:
It has also made a factual determination that continued detention of Mr. Alfila is not necessary to protect against a significant threat to the security of the United States.

[00:01:05] Speaker 09:
Despite these developments, one thing has stayed the same.

[00:01:08] Speaker 09:
Mr. Alfila remains in detention where he has been for 19 years without charge or trial.

[00:01:14] Speaker 09:
And the government takes the position that even though continued detention is not necessary for the interests of national security, it can keep detaining Mr. Alfila.

[00:01:23] Speaker 09:
until the end of the conflict, which can seemingly never end.

[00:01:27] Speaker 09:
In every practice.

[00:01:28] Speaker 13:
Is that the nature of the determination or was the determination that we need not detain him at Guantanamo?

[00:01:35] Speaker 13:
We don't know whether the conditions involve a detention elsewhere or do we?

[00:01:40] Speaker 09:
Your honor, the determining, well, the, the periodic review board was acting under a delegation by executive order to determine whether continued detention is necessary.

[00:01:50] Speaker 09:
for the security to prevent against a significant security threat to the United States.

[00:01:55] Speaker 09:
The bottom line answer that the PRB gave for Mr. Alhila is that it is not necessary.

[00:02:01] Speaker 09:
Now in reaching that final determination, the PRB considered that based on what it viewed as Mr. Alhila's past activities, there was some risk which the PRB concluded could be mitigated with adequate protections and assurances in terms of a program

[00:02:19] Speaker 09:
that he could be released into.

[00:02:20] Speaker 09:
And all Mr. Aljila is asking for is what this court has called conditional release.

[00:02:27] Speaker 09:
So I think that the bottom line of the Periodic Review Board is that the government has determined that his continued detention is not necessary.

[00:02:35] Speaker 09:
There is a way to adequately protect the security of the United States without detaining Mr. Aljila.

[00:02:40] Speaker 09:
So in our view, as a matter of due process, the- Can I just- You just said, sorry.

[00:02:49] Speaker 02:
You just said all he's asking for is conditional release, if I heard you correctly.

[00:02:55] Speaker 02:
And your habeas petition, obviously, because it was written in 2005, a very long time ago, so quite understandable.

[00:03:04] Speaker 02:
Can you explain to me exactly what you mean or your client means, what he wants from a habeas corpus order?

[00:03:15] Speaker 09:
Sure.

[00:03:17] Speaker 09:
Our habeas petition, I believe, asks for a lease.

[00:03:20] Speaker 09:
So I think certainly we're not saying that we don't want an order that just says release, but what we said before the panel, I think this is the last and a footnote in the last page of our brief to the panel is that Mr. Alquila would be very happy with an order that was, it is what this court calls conditional release, which is an order that Mr. Alquila's continued detention is unlawful.

[00:03:40] Speaker 09:
The government is under an obligation to release him.

[00:03:43] Speaker 09:
But the government will have the time to identify a place for him to go to line up proper security assurances.

[00:03:52] Speaker 09:
And I think that would solve.

[00:03:55] Speaker 02:
How is that different from what we already have given the PRB decision?

[00:04:04] Speaker 09:
Your Honor, I think it's a good question.

[00:04:06] Speaker 09:
And I'd like to be really precise about what the PRB does and does not decide.

[00:04:10] Speaker 09:
What the periodic review

[00:04:12] Speaker 09:
board was delegated to do, was assigned by executive order to do, was to make a factual determination.

[00:04:18] Speaker 09:
Is Mr. Al-Hilal's continued detention necessary to protect against a significant threat to the security of the United States?

[00:04:24] Speaker 09:
It says no.

[00:04:26] Speaker 09:
The PRB was not delegated any authority to do anything about that determination.

[00:04:30] Speaker 09:
And we know that, you know, I refer to the brief that was put in by Mr. Albahani, who was cleared for release 10 years ago.

[00:04:39] Speaker 09:
under a very similar determination that was slightly before the PRB, but it's essentially the same determination, continued detention is not necessary for the security of the United States.

[00:04:53] Speaker 09:
He's been in detention for 10 years.

[00:04:55] Speaker 09:
So all we know right now is that, excuse me, the government has made a factual determination that Mr. Alquila's continued detention is not necessary, but for whatever reason, he remains in detention.

[00:05:07] Speaker 03:
So in other words, are you suggesting that there is no case or controversy before us as to whether your client should remain in detention, but simply a question of the conditions for release and under the regulation, the government is obligated or the secretary of defense and the secretary state are obligated to move efficiently

[00:05:36] Speaker 03:
in arranging for that.

[00:05:39] Speaker 09:
Your honor, right now, I don't think as a matter of internal executive branch practice or regulation, there is any need for the executive branch to do anything.

[00:05:48] Speaker 09:
What they have done is the periodic review board has made a factual determination that Mr. Alvila's continued detention is not necessary.

[00:05:56] Speaker 03:
I understand, but the point is there is a regulation that says when that determination has been made, then the secretaries of defense and

[00:06:05] Speaker 03:
state are to move expeditiously to release the detainee.

[00:06:12] Speaker 03:
So I don't see your brief to address that, but I understand from what you're saying today in terms of conditional release that you don't view any dispute with the government on that issue.

[00:06:30] Speaker 09:
I think we do have a case or controversy.

[00:06:32] Speaker 09:
The way I would describe the current dispute with the government is this.

[00:06:36] Speaker 09:
The government has determined that Mr. Al-Hilal's continued detention is necessary, but it is very clear in its brief.

[00:06:42] Speaker 09:
It believes that it continues to have the legal authority to detain Mr. Al-Hilal until the end of this conflict.

[00:06:49] Speaker 09:
And who knows how long the government will consider this conflict to remain.

[00:06:54] Speaker 09:
ongoing.

[00:06:54] Speaker 09:
So under those circumstances, we have a very real dispute.

[00:06:59] Speaker 09:
Mr. Appela continues to be deprived of his liberty.

[00:07:02] Speaker 09:
We don't know what the government is doing.

[00:07:05] Speaker 01:
Can I ask the question this way?

[00:07:08] Speaker 01:
So as Judge Rogers was referring to, the executive order itself says that if a final determination is made,

[00:07:13] Speaker 01:
then the secretaries shall be responsible for ensuring that vigorous efforts are undertaken to identify a suitable transfer location.

[00:07:21] Speaker 01:
So the executive order imposes an obligation to undertake vigorous efforts.

[00:07:25] Speaker 01:
And so I'm trying to understand what the potential daylight is between where you think things are and where the government thinks things are, if in fact vigorous on efforts are being undertaken.

[00:07:35] Speaker 01:
You've said at the outset that you don't have an issue with the conditions, as I understand it, you don't have an issue with the conditions that the government has described as we understand them from the order of the PRB.

[00:07:50] Speaker 01:
So is all we're talking about whether the government is in fact adhering to what the regulation says the government needs to do in the event that the finding that's been made has been made?

[00:08:03] Speaker 09:
Your honor, we really don't have a way of knowing, I think, what the government is doing, has been doing.

[00:08:09] Speaker 09:
We know that it is very possible that after someone has been cleared based on a determination that they no longer pose a security threat to the United States, Mr. Albani continues to be detained for 10 years.

[00:08:22] Speaker 09:
Nothing is stopping Mr. Albani from being detained for another 10 years.

[00:08:26] Speaker 06:
What if this court rules that your client should be released?

[00:08:32] Speaker 06:
The same problem, the same problem that faces the government when somebody has been cleared for release and that is finding a country that will take him.

[00:08:43] Speaker 06:
There's no difference.

[00:08:46] Speaker 09:
Your honor, Mr. Alhela represented to the court in his brief before the panel and I don't think anything has changed that in his view in order requiring his release by this court will help in efforts to find the place for him

[00:09:00] Speaker 09:
to be resettled.

[00:09:01] Speaker 09:
And I think beyond that, a court order means something.

[00:09:05] Speaker 06:
And I think the government... So does the executive decision saying that he should be released.

[00:09:13] Speaker 06:
That means something too.

[00:09:14] Speaker 06:
I don't see what the difference is.

[00:09:16] Speaker 06:
If this were in the United States, he could walk out of the prison gates, that would be fine.

[00:09:23] Speaker 06:
But he's on an island and he has to be released someplace other than Cuba.

[00:09:30] Speaker 06:
So the question is where?

[00:09:32] Speaker 04:
Well, going back to your basic argument here, is it your position that somehow the principles of due process require more than what the executive order does?

[00:09:42] Speaker 04:
Is that your argument?

[00:09:44] Speaker 09:
Your Honor, I do think that because I think the executive order doesn't accomplish release.

[00:09:50] Speaker 04:
Well, in what way?

[00:09:52] Speaker 04:
Why don't you just say a little more about that?

[00:09:55] Speaker 04:
Let's assume you're right.

[00:09:57] Speaker 04:
due process principles apply here given in the context of what Hamdi said about it, but in what respect precisely would principles of due process that you envision here apply a more rigorous standard than the one set forth in the executive order?

[00:10:19] Speaker 04:
As you have to be able to get any relief here, it seems to me you've got to be right about that.

[00:10:23] Speaker 09:
Sure.

[00:10:25] Speaker 09:
I view it as a distinction more between right and remedy.

[00:10:28] Speaker 09:
The due process right we're claiming, one of the due process rights that we're claiming, is that Mr. Alhila is being detained past the original purpose of his detention.

[00:10:37] Speaker 09:
And there's a long line of precedent saying when the original basis for non-criminal detention is over, is satisfied, is no longer necessary for that purpose.

[00:10:46] Speaker 09:
Due process, the government cannot continue depriving someone of their liberty.

[00:10:51] Speaker 09:
That's the principle.

[00:10:53] Speaker 09:
I think the question

[00:10:54] Speaker 09:
in a habeas case is what is the remedy.

[00:10:56] Speaker 09:
And we know that habeas is flexible.

[00:10:59] Speaker 09:
And this is why I think the court has recognized this principle of conditional release.

[00:11:06] Speaker 09:
As Judge Randolph says, this is on an island and there needs to be somewhere for Mr. Al-Hila to go.

[00:11:12] Speaker 09:
So I do think it is not that if the government were to act on its determination and release Mr. Al-Hila,

[00:11:23] Speaker 09:
That way, I think we make everyone happy.

[00:11:25] Speaker 09:
But we know for a fact that for 10 years, Mr. Al-Bahany was cleared for release.

[00:11:30] Speaker 09:
And I think there's been reporting that for at least some portion of that time, perhaps the government was not acting vigorously.

[00:11:38] Speaker 09:
It's just for of us and put it to, you know, find a place for him to be released and I think that is where an article three court comes in and Mr designs, we don't have any reason to think that we're there now.

[00:11:49] Speaker 13:
This administration has not made the same representations that it that it is uninterested in making those vigorous efforts and I guess another way of framing the question is.

[00:11:59] Speaker 13:
If we believe we have a very powerful obligation of constitutional avoidance, and if what's established is that your client has a habeas remedy, and if one of the things that the habeas remedy might afford him is a non-constitutional basis for the same relief, in other words, the government is saying,

[00:12:26] Speaker 13:
Yeah, we've made this determination, but we have legal authority to continue to detain your client for the duration of the conflict.

[00:12:38] Speaker 13:
And if we were to disagree with that and say, well, under the circumstances, when you the executive have determined that you don't have security reason to keep him, maybe you don't have authority under the AUMF.

[00:12:54] Speaker 13:
If that were

[00:12:55] Speaker 13:
and available ground under habeas, we wouldn't have to reach your substantive due process claim.

[00:13:01] Speaker 13:
Why isn't that the prudent course that constitutional avoidance counsels?

[00:13:07] Speaker 09:
Your honor, we'd be very happy with that result relying on the AUMF.

[00:13:13] Speaker 09:
Before the panel, we argued essentially this principle under both grounds as both the statutory and constitutional matter that there is a limit to detention.

[00:13:22] Speaker 09:
So we're very conscious that in granting en banc review, we've been directed to brief issues of due process.

[00:13:32] Speaker 09:
We certainly reiterate our argument that there is a way to avoid that constitutional question and rule that the AMF has not authorized continued detention in this circumstance.

[00:13:49] Speaker 02:
confused.

[00:13:51] Speaker 02:
I had thought your habeas case in the point of free this PRB decision in August it was, prior to that.

[00:14:02] Speaker 02:
What Mr. Alhila wanted to show is that he was not

[00:14:09] Speaker 02:
He's not a combatant.

[00:14:12] Speaker 02:
He's not a threat at all.

[00:14:15] Speaker 02:
He's not properly held under the law of war.

[00:14:17] Speaker 02:
And it's not, you have the point about timing that you think that if there was a threat, it is dissipated.

[00:14:23] Speaker 02:
But I had thought, and it's one of the reasons there was so much concern about redactions here saying these types of things, that in fact, his baseline position was, I don't qualify for law of war detention full stop.

[00:14:39] Speaker 02:
And one, have you abandoned that?

[00:14:42] Speaker 02:
And if not, two, is it your position that if you got all the process you wanted, if that were the result from a district court and a habeas petition were to agree with Mr. Al-Hila and say lawful detention not allowed for this person full stop,

[00:15:03] Speaker 02:
Would they be able to still say, we can only release you with security conditions?

[00:15:09] Speaker 02:
Would it change the nature of the release?

[00:15:12] Speaker 02:
Or is all that over now we're only talking about conditional release?

[00:15:17] Speaker 09:
Sure, Your Honor.

[00:15:18] Speaker 09:
Well, first of all, we're not abandoning the underlying challenge to the procedures that led to the district court's determination of substantial support.

[00:15:28] Speaker 09:
on the basis for Mr. Al-Heela's detainability.

[00:15:31] Speaker 02:
I think we started with- Then why are you agreeing to conditional release when the conditions are consistent with someone for whom security protections are needed?

[00:15:40] Speaker 02:
This is where I'm very confused about what's going on.

[00:15:44] Speaker 09:
Sure.

[00:15:44] Speaker 09:
In some ways, I think it's a path to a narrower resolution.

[00:15:50] Speaker 09:
with the executive branch having determined that his continued detention is not necessary.

[00:15:56] Speaker 02:
Yeah, but if it's going to end up lasting 10 years like Mr. Alahani, then that would be plenty of time to have your primary contention was resolved and addressed.

[00:16:08] Speaker 02:
I'm just confused about your position and then it's your position, your clients, and that's the most important thing.

[00:16:13] Speaker 02:
I just want to understand

[00:16:16] Speaker 02:
where we are now, whether we really have much of a due process question left.

[00:16:21] Speaker 09:
Right, Your Honor, I think we do.

[00:16:24] Speaker 09:
Fundamentally, Mr. Alhilo's position is that he's been detained for 19 years.

[00:16:29] Speaker 09:
The executive branch has determined that that's not necessary, and there should be an order based on that, that his continued detention is not consistent with due process.

[00:16:37] Speaker 09:
Or I think the court could also rule, as Judge Pillard suggested, as a matter of constitutional avoidance, that in these circumstances,

[00:16:46] Speaker 09:
continued detention is not authorized by statute.

[00:16:49] Speaker 09:
So I think the way we're approaching this in some ways comes from a very practical concern of how do we get Mr. Alpila back and reunited with his family, which is what the PRB found is really all he wants.

[00:17:04] Speaker 09:
I do think though, we are very much insisting on the position and taking the position that there were incredibly flawed procedures that led to

[00:17:15] Speaker 09:
that led to Mr. Aljela's determination that the district court made that he was properly detainable.

[00:17:21] Speaker 09:
I'm not sure, even if there is a determination by the court, ultimately, that the Mr. Aljela, there is no basis for detention.

[00:17:30] Speaker 09:
I'm not sure what the government's position would be on whether they can still insist on some security assurances.

[00:17:36] Speaker 02:
I'm not asking you to tell me what their position is.

[00:17:39] Speaker 02:
That's why I was trying to ask you what your position is.

[00:17:41] Speaker 02:
And you said conditional release is your position either way.

[00:17:45] Speaker 09:
Certainly, I think because we have this, what I view as a narrow basis under substitute process to claim conditional release, I suppose if there were ultimately a new round of process to remedy the deficiencies that we found in their word determination, then I think perhaps there could be a court order that says just simple release.

[00:18:10] Speaker 09:
But I think the reality is I think

[00:18:14] Speaker 09:
a court order of conditional release that put the government under some obligation to find a way to get Mr. Alhela out of there, to tell the court, to explain to the court if he is not released promptly based on that, why.

[00:18:27] Speaker 09:
I think that will help Mr. Alhela more quickly than to go back possibly years of further process, ultimately to perhaps get

[00:18:38] Speaker 09:
a less qualified order of release.

[00:18:41] Speaker 09:
I'm viewing this very practically from Mr. Avila's standpoint.

[00:18:46] Speaker 03:
Another question here then.

[00:18:47] Speaker 03:
If you do not think that any dispute between you and the government as to your client's current eligibility for release exists, and the only question is,

[00:19:07] Speaker 03:
Can the government find a country that would take your client under the conditions that the federal government determines are necessary for the security of the United States?

[00:19:25] Speaker 03:
Then just assume for purpose of my question, all that is true.

[00:19:32] Speaker 03:
Then what purpose

[00:19:36] Speaker 03:
would the determination that you want serve?

[00:19:43] Speaker 03:
Would it be as a matter of prudence to control our court in the sense that after your case, another case may come up?

[00:20:00] Speaker 03:
And while we vacated the panel decision, another panel

[00:20:05] Speaker 03:
could come along and rule either that due process does not apply at Guantanamo or it does apply.

[00:20:16] Speaker 03:
And presumably a petition for rehearing would be filed by someone and we'd be right back where we started and we'd have to reconvene and bank once again.

[00:20:28] Speaker 03:
So to the extent we have this rule that

[00:20:32] Speaker 03:
three judge panels are bound by the decision of an in-bank court.

[00:20:37] Speaker 03:
Does that serve any purpose, even given the principle of constitutional avoidance?

[00:20:45] Speaker 09:
Judge Rogers, I think it does serve a purpose.

[00:20:48] Speaker 09:
And I think we have seen that there has been some back and forth within the panel's opinions.

[00:20:55] Speaker 09:
And I do think we're 13 years after Boumediene, I think,

[00:21:00] Speaker 09:
Broadly speaking, it would be incredibly valuable for the Anvang court to settle the question of the availability of due process rights in Guantanamo.

[00:21:09] Speaker 09:
But I also, I think, if I hear your question correctly, I think the question sort of goes to mootness.

[00:21:15] Speaker 09:
Is there really a continuing case or controversy over this issue?

[00:21:20] Speaker 09:
And I really think that there is.

[00:21:22] Speaker 09:
What the government says in its brief is that what happens now is entirely a matter of executive branch discretion.

[00:21:28] Speaker 09:
They think they have,

[00:21:30] Speaker 09:
the constitutional statutory authority to continue detaining Mr. Al-Kila for the duration of this conflict, irrespective of a factual determination that they have made within the executive branch that his continued detention is not necessary for security reasons.

[00:21:46] Speaker 09:
So I think we have a really clear legal case or controversy.

[00:21:50] Speaker 09:
We say that his continued detention is unlawful.

[00:21:53] Speaker 09:
They say it is lawful.

[00:21:55] Speaker 03:
So to the extent that the board decision only became final,

[00:22:00] Speaker 03:
two months ago, does that change anything?

[00:22:05] Speaker 03:
I know you filed your petition in 2005, but the process has delayed so that now we're still considering that petition.

[00:22:15] Speaker 03:
But in the meantime, the government, as a matter of discretion, through this board decision that now has become final,

[00:22:28] Speaker 03:
And the government's brief nowhere suggests that it's backing off or that the secretary of defense has raised any objection to that decision.

[00:22:38] Speaker 03:
So it has become final, at least under the executive orders and the regulations promulgated by the department.

[00:22:49] Speaker 09:
Your honor, again, I look at this from the perspective of my client who for 19 years has been in detention without charge or trial.

[00:22:58] Speaker 09:
The date of the final determination of the Periodic Review Board was the 8th of June.

[00:23:03] Speaker 09:
So that was about three and a half, almost four months ago.

[00:23:06] Speaker 09:
And to be honest, I think if that doesn't sound like a long time to be deprived of liberty, it's only because of how long Mr. Avila has been deprived of his liberty already.

[00:23:16] Speaker 09:
And it will take time for this court to issue a decision if there were any kind of remand that would take.

[00:23:22] Speaker 09:
time, so time keeps just passing on by and Ms.

[00:23:27] Speaker 09:
Chaltila remains in detention.

[00:23:29] Speaker 04:
So I think- Mr. Zients, I have just a practical question here that occurs to me as I've been listening to this for 25 minutes now.

[00:23:39] Speaker 04:
So the PRB decision was issued obviously after the district court acted.

[00:23:47] Speaker 04:
Given that, and given that we have an obligation to avoid deciding constitutional questions if we can, and given also that your answer to many of our questions about what the government is planning to do, you don't know the answer to, isn't Judge Lamberth in a far better position than we are to get to the bottom of this, to find out whether there really is any longer dispute between the petitioner and the government?

[00:24:11] Speaker 09:
Judge Taylor, I have two

[00:24:13] Speaker 09:
to respond as to that.

[00:24:15] Speaker 09:
One is to go back to the answer I gave to Judge Rogers.

[00:24:20] Speaker 09:
Ms.

[00:24:20] Speaker 09:
Charl Heeler has been detained for 19 years.

[00:24:23] Speaker 09:
This is going on and on.

[00:24:24] Speaker 09:
And I think there is a really powerful liberty interest in getting a resolution sooner rather than later.

[00:24:30] Speaker 09:
That was essentially what the Supreme Court said in Boumediene.

[00:24:34] Speaker 09:
There was a criticism from the dissent.

[00:24:36] Speaker 09:
Shouldn't we have let, sent this back, let the detention, the DTA review procedures

[00:24:42] Speaker 09:
lay out a bit more and see how that develops.

[00:24:44] Speaker 09:
And the Supreme Court said, this detention has been going on a very long time and there's a really profound interest in moving these cases along.

[00:24:51] Speaker 04:
That was 2008.

[00:24:53] Speaker 04:
But related to my question is, I hear what you're saying, but you still need to demonstrate to this court that there's something about the due process principles that you seek to have applied here that would give him something more

[00:25:09] Speaker 04:
then he's gotten either from the district court or under the executive order.

[00:25:13] Speaker 04:
And I haven't heard that yet.

[00:25:15] Speaker 09:
Sure.

[00:25:17] Speaker 09:
Our view of the due process clause is that when the government, at least when the government has made a determination that the original basis for Mr. Alvila's detention no longer holds, is no longer necessary, he is entitled to release.

[00:25:31] Speaker 09:
I think we now have a fight about remedy.

[00:25:34] Speaker 09:
And I think the question is, is the remedy that we're contemplating any different from what the government is already doing?

[00:25:39] Speaker 04:
And the honest question to that is, wouldn't he, isn't it possible that he would be entitled to exactly the same relief under the suspension clause?

[00:25:51] Speaker 09:
What's the difference?

[00:25:54] Speaker 09:
I think that the Supreme Court's holding in Boumediene is that there's an opportunity

[00:25:58] Speaker 09:
There's an entitlement to meaningful review of detention.

[00:26:02] Speaker 09:
I don't think the suspension clause provides substantive law for whether or not detention is lawful or not.

[00:26:09] Speaker 09:
Our view here is DAUMF of course, imposes limits on that.

[00:26:14] Speaker 09:
And our view is the due process clause does as well.

[00:26:18] Speaker 09:
And if I could just go back very quickly.

[00:26:21] Speaker 11:
If I could just ask a question to clarify that.

[00:26:26] Speaker 11:
I guess you have to have an account of, it seems, from the questions that are being asked.

[00:26:30] Speaker 11:
I mean, if this court were to determine that Mr. Alhela's due process rights were violated and we were to rule that way, how would that change the executive branch's discretion about whether to release him or not?

[00:26:43] Speaker 11:
I mean, aren't we in the same place?

[00:26:45] Speaker 11:
And I think that that's really the question.

[00:26:47] Speaker 11:
How does a judicial decision about due process change the executive's

[00:26:54] Speaker 11:
practical authority to keep him in detention.

[00:26:57] Speaker 09:
Your honor, I think what it would change is that a court order is serious business.

[00:27:03] Speaker 09:
So a court order that says the government is required to release him, and we're not going to force the government to do that right now while it is looking for a place that has the adequate assurances, et cetera.

[00:27:15] Speaker 09:
But I think as part of the habeas court's inherent authority,

[00:27:19] Speaker 09:
under such an order that the government would probably, I think, could fairly be required to report on what it's doing.

[00:27:25] Speaker 01:
It really is the effect of the court order that you're talking about, because just to get back to the standard that the executive is imposing on itself,

[00:27:32] Speaker 01:
And by virtue of the final determination of the PRB, the executive order says that the executive has imposed an obligation on itself to undertake vigorous efforts to secure release under the parameters set out in the final determination.

[00:27:47] Speaker 01:
You don't think that when the executive determines that someone should be transferred, that somehow miraculously they're supposed to do it right away.

[00:27:54] Speaker 01:
I mean, obviously some practical things have to happen in order to effectuate that determination.

[00:27:58] Speaker 01:
And what the executive has said in the order is that it will undertake vigorous efforts.

[00:28:03] Speaker 01:
It sounds like from your answers to these questions, you're on board with that.

[00:28:06] Speaker 01:
That's satisfying to you.

[00:28:08] Speaker 01:
What the delta that you see is that you have a court that's looking to make sure that the executive, in fact, is undertaking the vigorous efforts.

[00:28:16] Speaker 01:
Because if those are vigorous efforts are being undertaken, it seems like that's exactly what you want.

[00:28:21] Speaker 09:
I think that's right.

[00:28:22] Speaker 09:
And I think that would be the result of the court order that we're looking for.

[00:28:25] Speaker 09:
There would be some way to know what the executive is doing.

[00:28:28] Speaker 09:
I think to Judge Taylor's question, which I think was suggesting a remand to find out what the government is really doing, I suppose, again, this is something that I won't put words in the government's mouth.

[00:28:42] Speaker 09:
But I would think based on their view that this is all discretionary, they view themselves as having no obligation to tell anyone, including Mr. Aldila,

[00:28:50] Speaker 09:
or the district court, what it is doing to carry out this sort of internal executive order obligation, which as far as the executive is concerned, is totally internal to it.

[00:29:00] Speaker 09:
So from our perspective,

[00:29:02] Speaker 09:
Um, yes, I think a court order absolutely makes, makes, makes a difference here.

[00:29:07] Speaker 14:
And Mr. Zant, isn't there a factual basis in the record to make that representation?

[00:29:14] Speaker 14:
In other words, I had understood that there's at least one other detainee who is in a similar position who has been held after PRB determination for a decade.

[00:29:24] Speaker 14:
So there's some reason to believe that the government is not necessarily interpreting

[00:29:29] Speaker 14:
its obligation to move expeditiously consistent with what you think the due process clause requires.

[00:29:38] Speaker 09:
Judge Jackson, I think that's exactly right.

[00:29:40] Speaker 09:
We know that Mr. Albahani has been, quote unquote, cleared for release, but has been detained for 10 years.

[00:29:46] Speaker 09:
And I think his brief actually explains, he was even told that the government continued, was getting ready to release him and decided not to for reasons that don't even have to do with him.

[00:29:57] Speaker 09:
So this is, you know,

[00:29:59] Speaker 09:
Whether or not the new administration is acting in a different way from the old administration, the reality is the executive branch has a lot of different priorities.

[00:30:09] Speaker 09:
What we have here is someone who's been detained for 19 years that the government says it does not have a security need to continue detaining.

[00:30:16] Speaker 09:
All we're really asking for is a court order that would allow

[00:30:21] Speaker 09:
to not have to rely on an executive order that the government views as totally discretionary.

[00:30:27] Speaker 13:
I was going to follow up on your questions, but you're probably better suited to do that.

[00:30:32] Speaker 06:
I just want to ask, you keep relying on Bahani.

[00:30:37] Speaker 06:
Why has he not been relocated?

[00:30:43] Speaker 09:
Your Honor, I don't know the answer.

[00:30:45] Speaker 06:
Well, the answer is very important.

[00:30:48] Speaker 06:
Because on the one hand, your claim is that the government is being lackadaisical and not acting vigorously.

[00:30:56] Speaker 06:
But if, in fact, no country will take him, then that's another story entirely.

[00:31:01] Speaker 06:
No matter how vigorously the government is acting, no country will take him.

[00:31:05] Speaker 06:
And you don't know, right?

[00:31:08] Speaker 09:
Your Honor, I don't have any way to know the answer to that.

[00:31:13] Speaker 09:
There have been, there was a period of time when the president of the United States said publicly, there should just not be releases.

[00:31:19] Speaker 09:
This was at a time when Mr. Albahani had been cleared for release, but the president said there shouldn't be any more releases.

[00:31:26] Speaker 09:
So we do have some knowledge that there've been periods of time when perhaps the government was not moving vigorously to find a place to relocate.

[00:31:35] Speaker 09:
But the reality is we don't know.

[00:31:38] Speaker 09:
And I just don't think that can be an answer

[00:31:40] Speaker 09:
that divests the habeas court of authority to order a lease when it exceeds this lawfulness.

[00:31:49] Speaker 13:
Let me ask you on the current, so I gather there are two different

[00:31:54] Speaker 13:
two different due process issues that we've been talking about here and really the panel decision and the and your initial brief were before the periodic review board kind of changed the landscape on the substantive ground of detention and your focus then was on the procedural

[00:32:13] Speaker 13:
steps that have been taken by the district court and I think earlier in the argument today you said that the procedures were incredibly deficient and I know there's some limitations given by the classified nature of the record, but what is wrong with the

[00:32:36] Speaker 13:
basis that Judge Griffith used for saying, no, actually, these procedures gave a meaningful opportunity and or meet the Matthews approach.

[00:32:49] Speaker 13:
What shortfall, really, on this record that bears on Mr. Alhela?

[00:32:56] Speaker 13:
I mean, even if you could identify which of the claims you think is the strongest, because now with some familiarity with the record, I could use guidance.

[00:33:04] Speaker 09:
Sure.

[00:33:05] Speaker 09:
So I think the procedural deficiencies sort of all work together.

[00:33:12] Speaker 09:
For example, this is a case that was fundamentally about credibility, the reliability of certain sources, an incredible amount of not just hearsay, multi-layered, often anonymous hearsay.

[00:33:26] Speaker 09:
And I think it works together with the ex parte information that the district court

[00:33:33] Speaker 09:
considered without disclosing to either Mr. Alquila or his cleared counsel.

[00:33:39] Speaker 09:
And I think what the district court says and it's unclassified portions of the opinion are that the use of that was principally for these reliability issues.

[00:33:49] Speaker 09:
So essentially you have Mr. Alquila being detained on a low standard of proof, the kind that is used in slip and fall cases.

[00:33:58] Speaker 13:
And it was principally based- I'm not sure that issue was preserved to the panel, the burden, the standard of proof.

[00:34:06] Speaker 09:
Your Honor, I think our view is that it all sort of, again, works together.

[00:34:11] Speaker 09:
And of course, I think the court can decide if that is before it or not.

[00:34:16] Speaker 09:
But even holding that aside on the standard of proof, you do have what this court has said in other contexts.

[00:34:23] Speaker 09:
It's Singletary versus Riley, Judge Brown's decision for the court.

[00:34:26] Speaker 09:
about the limits that the due process clause imposes on the use of hearsay in a parole revocation setting where someone's liberty, someone is being deprived of their liberty.

[00:34:38] Speaker 09:
There comes to a point with multi-layered and anonymous hearsay where fundamentally there's just no way to know credibility and you add upon that the reliance on ex parte

[00:34:50] Speaker 09:
information to uphold the detainability of Mr. Aljila.

[00:34:54] Speaker 13:
My understanding of our case law is that unreliable hearsay cannot be used in this context.

[00:35:03] Speaker 13:
That hearsay is admissible because these are bench proceedings, but that the district judges very much do have an obligation in relying on hearsay to really probe reliability questions.

[00:35:19] Speaker 13:
and not to rely on it if there's a genuine reliability problem.

[00:35:23] Speaker 13:
And so do you disagree that that's the framework that applies currently under our precedent?

[00:35:33] Speaker 09:
I agree that that is the framework under your precedent.

[00:35:35] Speaker 09:
And it's actually, I think it's one good reason why due process adds something here beyond certainly what this court has viewed as the baseline of the suspension clause.

[00:35:48] Speaker 09:
what the Supreme Court said in Hamdi, and it applied the Matthews v. Eldridge balancing analysis under very different conditions, battlefield capture, detention not nearly as long, and it applied that.

[00:36:01] Speaker 09:
And even on hearsay, it says that hearsay may need to be used as the most reliable evidence that's available.

[00:36:08] Speaker 09:
So because the district court viewed due process as inapplicable, it did not consider, for example,

[00:36:15] Speaker 09:
Is there something better?

[00:36:16] Speaker 09:
Is there better evidence that may be available?

[00:36:19] Speaker 09:
So in Hamdi, where there was an active shooting war happening in Afghanistan, it would have been an incredible burden on the executive to require someone who was involved in the capture of Yasser Hamdi, who saw that he was holding an AK-47 to come to Virginia and to testify.

[00:36:38] Speaker 09:
What the district court never did was apply the Matthews v. Altridge

[00:36:42] Speaker 09:
framework under due process and ask the question, is there anything practical preventing, for example, the author of an intelligence report that contains multi-layered hearsay in it, who may not be on a battlefield, it may be in Langley, Virginia, and it wouldn't cause any harm to the government

[00:37:08] Speaker 09:
to drive to Constitution Avenue and explain, be cross-examined.

[00:37:12] Speaker 09:
What did you mean?

[00:37:13] Speaker 09:
Did you consider this person reliable?

[00:37:15] Speaker 13:
And it's your position that you've made the record in this case that that could have made a difference.

[00:37:23] Speaker 13:
The difference between the paper record and the declarant or the recorder of

[00:37:31] Speaker 13:
of the information that the paper record reflects being present.

[00:37:36] Speaker 13:
That is not just a more protective measure that could have been taken, but that it's a more protective measure that in the particular context of this case made a material difference.

[00:37:49] Speaker 13:
The lack of it, of the live witness actually makes a material difference.

[00:37:55] Speaker 13:
You think you've made, and I realize we have constraints of classification, but just you think you have made that record.

[00:38:02] Speaker 09:
Your Honor, we think we've made that record.

[00:38:04] Speaker 09:
I think an answer to that would have to come in a classified submission.

[00:38:10] Speaker 09:
But just stepping back and just looking at this holistically, this case itself is fundamentally a case about

[00:38:20] Speaker 09:
about credibility and nuance.

[00:38:22] Speaker 09:
If you look at the government's chief allegations against Mr. Al-Hila, he was a government official in Yemen.

[00:38:31] Speaker 09:
The district court found that at least part of what he was doing was part, what he was alleged to have done by the government, was part of his official government responsibilities as part of his role in this program for the deportation of the so-called foreign Arabs

[00:38:47] Speaker 09:
who were residing in Yemen, he had to meet with extremists and have relationships with extremists.

[00:38:52] Speaker 09:
So we're in this very nuanced question of what exactly was the nature of those relationships?

[00:38:57] Speaker 09:
Was he doing everything he did in furtherance of a government role where the government of Yemen was trying to get extremists out of the country?

[00:39:06] Speaker 09:
Or is the government alleged?

[00:39:07] Speaker 09:
Was he going beyond that?

[00:39:08] Speaker 09:
Was he abusing his authority?

[00:39:10] Speaker 09:
And was he doing something more?

[00:39:12] Speaker 09:
So I think in a case like this,

[00:39:14] Speaker 09:
you know, we're just inherently in a zone of credibility, reliability.

[00:39:19] Speaker 09:
This is not, you know, was Yasser Hamdi carrying an AK-47?

[00:39:23] Speaker 09:
Did he receive Taliban training?

[00:39:25] Speaker 09:
We're talking about much more fine-grained and nuanced determinations to be made.

[00:39:30] Speaker 09:
And on a record that, you know, as we've said, we're replete with this multilayered anonymous hearsay.

[00:39:37] Speaker 09:
And on top of that,

[00:39:39] Speaker 09:
you know, Mr. Leo, even his clear counsel has never been given the opportunity to, to look at significant information that the district court relied on to resolve those very questions.

[00:39:49] Speaker 00:
I'd like to ask a question about, um, that goes to kind of the legal status of your client presently.

[00:39:58] Speaker 00:
And so let's suppose, um, your client had been, um, detained and brought to Guantanamo

[00:40:10] Speaker 00:
And the government brought him there thinking that he was an enemy combatant, but realized that he was really actually not and that he was an aid worker.

[00:40:24] Speaker 00:
And so he's at Guantanamo, but they have determined that he really wasn't an enemy combatant ever.

[00:40:35] Speaker 00:
and so they say they have no need to release him, I mean, to detain him.

[00:40:42] Speaker 00:
Would your client, if those were the facts, would your client be in the same legal, have the same legal status?

[00:40:53] Speaker 00:
If those were the facts, then the legal status that your client would have

[00:41:00] Speaker 00:
if we were to find that there was a due process violation and in effect vacate the executive determination that he was an enemy combatant, what's the daylight or what's the difference between those two scenarios?

[00:41:26] Speaker 09:
Well, I think if as a matter of our procedural due process argument, there was a determination that he was not adequately found to determine to be an enemy combatant under the statute, I think it would be the same as the tourist or the aid worker, that the government has someone that has never had any legal authority to hold.

[00:41:52] Speaker 09:
I think

[00:41:53] Speaker 09:
on our substantive due process argument.

[00:41:55] Speaker 00:
And so if that's the case, then if your client were the aid worker and there'd never been an enemy combatant finding, would the government be allowed to release him only if they got security assurances?

[00:42:14] Speaker 00:
Or would the government just have to release him whether they could get those assurances or not?

[00:42:21] Speaker 09:
I think the government would have to release him.

[00:42:23] Speaker 09:
There would still be the question of finding somewhere for him to go.

[00:42:27] Speaker 09:
This was essentially the situation with the Uyghurs when the government determined that they were not being properly held as enemy combatants.

[00:42:35] Speaker 09:
And there was some effort to find a place because they couldn't be sent back to China where they would be tortured.

[00:42:41] Speaker 09:
So I think there would be some work for the government to do.

[00:42:45] Speaker 09:
But I do agree that there wouldn't be a basis for the order

[00:42:50] Speaker 09:
a release to include security assurances.

[00:42:53] Speaker 06:
Let me tell you something.

[00:42:54] Speaker 06:
I'm familiar with the Uyghur situation you mentioned.

[00:42:58] Speaker 06:
And the government acted vigorously for a long period of time, had great difficulty.

[00:43:05] Speaker 06:
And a lot of this information is classified, but they had great difficulty in relocating them.

[00:43:10] Speaker 06:
But they never gave up.

[00:43:12] Speaker 06:
I mean, there were diplomatic maneuvers and other contacts with other countries on and on and on.

[00:43:18] Speaker 06:
And so that kind of gives the lie to the idea that unless you have a court order, the government's not going to act vigorously, act vigorously in the Uyghur case for two years.

[00:43:30] Speaker 00:
Well, I guess what I'm getting at with my question, counsel, is if we hear your constitutional claim and either we or the district court on remand agree

[00:43:46] Speaker 00:
that there was a due process violation and in effect, the government's kind of enemy combatant designation is wiped away.

[00:44:00] Speaker 00:
Does that put your client in a, does that kind of give the government less legal basis to take action that would inhibit your client's release?

[00:44:15] Speaker 00:
Yes or no?

[00:44:17] Speaker 09:
I think yes.

[00:44:19] Speaker 09:
Yes, Judge Wilkins, it would.

[00:44:21] Speaker 09:
But I also don't view it as a sort of binary one or the other.

[00:44:27] Speaker 09:
I think at this time, Mr. Aljila is entitled.

[00:44:32] Speaker 09:
You should receive a court order requiring his release, at least under those conditions, because going back and having a remand and sorting out these procedural deficiencies

[00:44:44] Speaker 09:
Again, after 19 years, he wants to go home and, well, he wants to be reunited with his family.

[00:44:52] Speaker 09:
And so I do think it would get him something to have, to vacate the determination that he is properly detainable.

[00:45:00] Speaker 09:
But just thinking of this very practically from my client's perspective, he wants to be released sooner rather than later.

[00:45:08] Speaker 02:
Does it affect his detention?

[00:45:10] Speaker 02:
I'm sorry, go ahead, Joshua.

[00:45:12] Speaker 11:
I guess I had a question, if we were to find that due process applied in this case.

[00:45:19] Speaker 11:
In what way, if at all, do you think the standards that were applied here are different from HMD?

[00:45:27] Speaker 11:
Do you think that the standards here are less than what was afforded in HMD?

[00:45:32] Speaker 11:
I mean, I understand that your position is the balancing should come out

[00:45:35] Speaker 11:
in a different way for Mr. Al Hela.

[00:45:37] Speaker 11:
But the government suggests in their brief that you do not contest that the Hamdi standards were not met for due process, you know, as a general matter in terms of the procedures that were employed.

[00:45:49] Speaker 09:
Sure.

[00:45:50] Speaker 09:
I think, you know, we do think that the court would have to do the Matthews v. Elcher's balancing analysis now, as Judge Traxler said, and Almari, his controlling opinion.

[00:46:02] Speaker 09:
Hamdi wasn't setting a one-size-fits-all rule of due process, and it very much depends on the circumstances.

[00:46:09] Speaker 09:
But I realize that is not a direct answer to your question.

[00:46:13] Speaker 09:
I think the direct answer to your question is that even as a matter of Hamdi, on hearsay, what Hamdi says, just a sentence on hearsay, it wasn't purporting to set the standard forever in all cases.

[00:46:26] Speaker 09:
It says hearsay may need to be

[00:46:31] Speaker 09:
Wow, I won't try to quote it from memory exactly, but what Hamdi says is that hearsay may need to be used as the most reliable evidence that is available.

[00:46:42] Speaker 09:
And our view here is there's been no showing that there is not more reliable, more available evidence that could have been used.

[00:46:49] Speaker 09:
For example, the person possibly sitting in Langley, Virginia, who wrote this, who wrote one of these intelligence reports and could be confronted on what it really means.

[00:46:59] Speaker 09:
Can you clear it up?

[00:47:01] Speaker 09:
was telling the truth.

[00:47:03] Speaker 09:
Was there a transcription error?

[00:47:04] Speaker 09:
So I think there's a lot, even within the framework of Hamdi itself, Mr. Al-Hila I think got less than that.

[00:47:11] Speaker 09:
And frankly, I realized that we're not here talking about the suspension clause.

[00:47:16] Speaker 09:
If you look at Boumediene and what Boumediene says about the deficiencies in the DTA process and why habeas is necessary, it talks about a rule under the CSRTs where hearsay is always admissible.

[00:47:29] Speaker 09:
That is now the rule

[00:47:30] Speaker 09:
under this circuit's precedent.

[00:47:33] Speaker 09:
So I think it really is under both Hamdi and Boumediene, Mr. Al-Hilal has received very little process.

[00:47:42] Speaker 09:
He has not received what even Hamdi suggests should be the rule for hearsay.

[00:47:47] Speaker 09:
But we also think after 19 years, for someone who is not detained on any kind of battlefield, the Matthews v. Eldridge balancing analysis really comes out quite differently for Mr. Al-Hilal.

[00:47:58] Speaker 02:
Can I ask a practical question?

[00:48:00] Speaker 02:
If while you're awaiting the government's vigorous efforts, your client wanted to go forward with habeas to clear his name, to vindicate his claim, he in fact should never have been categorized as an enemy combatant.

[00:48:14] Speaker 02:
He was just a good government employee.

[00:48:18] Speaker 02:
And say he were to win that habeas.

[00:48:23] Speaker 02:
But nonetheless, efforts still need to be made for his release.

[00:48:27] Speaker 02:
Would his conditions in which he's detained at Guantanamo change while he awaits that process?

[00:48:33] Speaker 02:
Were the Uyghurs kept in less constrictive conditions?

[00:48:37] Speaker 02:
Is there anything that would change for him?

[00:48:40] Speaker 09:
Your Honor, I'm not sure I know the answer to that question.

[00:48:43] Speaker 09:
I can try on rebuttal to make sure I have an answer of when it's available.

[00:48:47] Speaker 02:
You're not claiming that as a liberty interest that's stylistic.

[00:48:50] Speaker 09:
No, we're not talking about the conditions of confinement, Your Honor.

[00:48:54] Speaker 01:
Let me make sure my colleagues don't have any additional questions.

[00:48:58] Speaker 01:
Mr. Zyanser, we'll give you a little bit of time for rebuttal.

[00:49:01] Speaker 01:
Thank you, Your Honor.

[00:49:02] Speaker 01:
If they don't.

[00:49:03] Speaker 01:
Okay, thank you, Mr. Zyanser.

[00:49:04] Speaker 01:
We'll hear from the government now.

[00:49:06] Speaker 01:
Ms.

[00:49:06] Speaker 01:
Harrington?

[00:49:07] Speaker 12:
Thank you, Your Honor.

[00:49:07] Speaker 12:
May it please the court, Sarah Harrington, for the federal appellees.

[00:49:11] Speaker 12:
I'd like to make clear from the start, if I can, that the United States believes that the Constitution requires robust protections for Guantanamo detainees who bring habeas claims.

[00:49:20] Speaker 12:
Those habeas proceedings must provide detainees with a meaningful opportunity to contest the lawfulness of their detention, including by rebutting the factual basis for that detention and by presenting exculpatory evidence.

[00:49:32] Speaker 12:
In these types of proceedings, the suspension clause requires district courts to employ substantive and procedural safeguards that are at least as protective as those the due process clause would impose if it applied here.

[00:49:43] Speaker 12:
And that is what happened in this case.

[00:49:46] Speaker 12:
Because the due process clause would not provide any greater protection than the suspension clause already provides, the court should decline to decide whether it does in fact apply here.

[00:49:55] Speaker 03:
In order to reach that conclusion,

[00:50:00] Speaker 03:
I think some of the questions that we've been exploring is what is required by due process for a person in Alhila's circumstances?

[00:50:17] Speaker 03:
Until we decide that, how can we decide, much less assume, that he would be entitled to nothing more

[00:50:30] Speaker 03:
than he would be entitled to under the suspension clause.

[00:50:34] Speaker 03:
That seems to be an assumption in your brief that the two are equivalent.

[00:50:40] Speaker 03:
And where has the Supreme Court said that in the manner that you're saying it in your brief?

[00:50:48] Speaker 12:
So Judge Rogers, in Boumediene, Justice Kennedy writing for the court assumed that the procedures that were in place in the CSRT process satisfied due process.

[00:50:58] Speaker 12:
Assume.

[00:51:00] Speaker 12:
Right, exactly.

[00:51:01] Speaker 12:
But he nevertheless held that the suspension clause required significantly greater protections in habeas corpus proceedings.

[00:51:08] Speaker 03:
So the question is open.

[00:51:11] Speaker 12:
The question is open, yes.

[00:51:13] Speaker 12:
But the other piece of the puzzle then, of course, is Hamdi, where the Supreme Court opined on what the due process clause would require.

[00:51:20] Speaker 12:
for the detention of a U.S.

[00:51:21] Speaker 12:
citizen held in the United States as an enemy combatant.

[00:51:25] Speaker 12:
Surely any procedures that meet those requirements that are set out in Hamdi are sufficient when you're talking about a non-citizen who is held outside the United States.

[00:51:33] Speaker 03:
Actually, the Hamdi plurality was careful to say that the details would need to be worked out by the courts below.

[00:51:47] Speaker 12:
That's exactly right.

[00:51:48] Speaker 03:
So we didn't say this is all that's required under any circumstances.

[00:51:57] Speaker 03:
And of course, Hamdi even suggested that after 10 years, maybe the executive branch's determination that someone was an enemy combatant who required continuous detention needed to be re-examined.

[00:52:14] Speaker 03:
And you don't deny

[00:52:16] Speaker 03:
that circumstances have changed dramatically since then.

[00:52:23] Speaker 12:
Circumstances have changed, but the conflict with Al-Qaeda and its associated forces is ongoing.

[00:52:28] Speaker 12:
Mr. Al-Hilal doesn't make any suggestion to the contrary.

[00:52:31] Speaker 03:
No, in fairness to him, he was writing his brief before the president made his most recent statements.

[00:52:40] Speaker 12:
He did, but the president and the generals when they testified before Congress earlier this week have made clear that the conflict with Al Qaeda and its associated forces continues.

[00:52:49] Speaker 03:
Of course, you agree that the president under our constitutional system is the commander in chief.

[00:52:57] Speaker 03:
Yes.

[00:52:59] Speaker 12:
That's right, Judge.

[00:53:00] Speaker 12:
And if I could take the procedural part of your earlier question, if you look over the last 13 years since Boumediene, this court and the DC District Court have put in place very robust procedural protections that govern these habeas proceedings.

[00:53:14] Speaker 12:
And it's not just the minimum that was set out in Hamdi.

[00:53:17] Speaker 12:
It's quite a bit more than that.

[00:53:18] Speaker 12:
And if I can just sort of tick off some of the things that govern these proceedings, these are set out in the case management order as it was amended.

[00:53:25] Speaker 03:
Well, that's my real point, isn't it, that at least

[00:53:29] Speaker 03:
Those procedures have assumed, even without deciding whether due process applies, that more was required and certainly the district court here did more.

[00:53:44] Speaker 12:
That the suspension clause itself required more.

[00:53:46] Speaker 12:
And the reason for that, and this is explained in Boumediene, is that here you have judicial review of an executive determination that detention is appropriate.

[00:53:54] Speaker 12:
It's not as if you have one court reviewing a different neutral court that made a determination about detention.

[00:53:59] Speaker 12:
And so you need more robust procedures in reviewing the basis for the detention.

[00:54:04] Speaker 12:
And you have those here.

[00:54:05] Speaker 12:
So first, what the district court does in a habeas case in this context is it makes a de novo determination of whether

[00:54:11] Speaker 12:
there is a valid basis for detaining the person.

[00:54:15] Speaker 12:
That's quite different from what you think of as a traditional habeas type of proceeding, where you have a federal court reviewing a state court conviction, where a great deal of deference is given to the fact-finding.

[00:54:24] Speaker 12:
There's no deference at all that's given in this context to the government's determination that someone is an enemy combatant.

[00:54:30] Speaker 12:
Second, the government has to turn over all exculpatory evidence that's reasonably available to it.

[00:54:35] Speaker 12:
And we take that obligation seriously.

[00:54:37] Speaker 12:
We view the definition of exculpatory evidence quite broadly.

[00:54:41] Speaker 12:
We turn over evidence that undermines our own claims with respect to inculpatory evidence.

[00:54:47] Speaker 12:
We turn over evidence that could undermine the reliability of our evidence, that could undermine the reliability of witnesses, including any evidence about the context in which various statements were made.

[00:54:56] Speaker 00:
That all sounds good, but there's a big exception there, which is that the government can turn over exculpatory evidence, and it does, but at the same time,

[00:55:11] Speaker 00:
it in the same filing that's in camera and ex parte, it can give its own explanation about why the evidence isn't really all that exculpatory.

[00:55:26] Speaker 00:
And in some instances, that's classified and petitioners council can't respond to that.

[00:55:33] Speaker 00:
Isn't that right?

[00:55:35] Speaker 12:
I don't know if that's exactly right, Judge Wilkins.

[00:55:37] Speaker 12:
It is true that

[00:55:38] Speaker 12:
In this in the way that Matthews versus Eldridge would require if it applied that the district court has procedures in place that balance both the government's interest in protecting national sensitive national security information.

[00:55:49] Speaker 12:
And the petitioners the detainees interest in getting meaningful review of his detention and and it has resulted in these procedures that govern classified information.

[00:55:59] Speaker 12:
So I understand that Mr. Zients hasn't had access to the classified record, but his co-counsel from the habeas proceedings did have access to the classified record.

[00:56:07] Speaker 12:
And the judges on this court have access to the classified record.

[00:56:10] Speaker 12:
And so you can see what was turned over to the cleared counsel.

[00:56:13] Speaker 13:
The cleared counsel does not have access to the top secret information that the district court sees only in camera.

[00:56:19] Speaker 13:
And is it a representation that there are not instances in this case and otherwise

[00:56:27] Speaker 13:
in which potentially exculpatory evidence is shown only in camera to the court, and the government makes the case, this appears exculpatory, but actually it isn't, and the district judge agrees, and that never gets seen even by cleared counsel.

[00:56:44] Speaker 13:
Does that happen or not?

[00:56:45] Speaker 13:
And has that happened in this case or not?

[00:56:48] Speaker 12:
I don't believe it's happening.

[00:56:50] Speaker 12:
What I can, what I know about what's happened with the exculpatory information in this case, I'm sorry, the ex parte information.

[00:56:56] Speaker 12:
The district court relied on ex parte information in four instances and only in each instance to make a credibility determination with respect to a source.

[00:57:04] Speaker 12:
three times finding the source credible and one time finding the source not credible.

[00:57:08] Speaker 12:
I can give you pages in the JA where you can look, it's redacted in the public version, but you can go and look at the classified version.

[00:57:13] Speaker 12:
It's pages 143, 155, and 190 for positive determinations of credibility.

[00:57:21] Speaker 12:
And then 156 to 157 footnote 11 for the negative determination of credibility.

[00:57:26] Speaker 12:
What's the last page, Cy?

[00:57:28] Speaker 12:
I'm sorry, it's 156 to 157 footnote 11.

[00:57:31] Speaker 03:
Thank you.

[00:57:33] Speaker 12:
So you can see how ex parte information was actually used in this case.

[00:57:38] Speaker 12:
Now before there can be any introduction of ex parte evidence, there has to be a determination made that

[00:57:43] Speaker 12:
there isn't a way to share the information with Mr. Alhela's cleared counsel.

[00:57:50] Speaker 12:
And you can see in the ex parte materials, there is a robust back and forth between the government and the district court judge.

[00:57:57] Speaker 12:
Judge Lambert did not go easy on the government counsel, nor should he have.

[00:58:00] Speaker 12:
We are not shirking from our responsibility to provide detainees with a robust opportunity to challenge their detention.

[00:58:07] Speaker 12:
But it is also just a fact of life that sometimes there is very sensitive national security information

[00:58:12] Speaker 12:
But if it were shared with clear counsel, let alone with the detainee, it would reveal sources or methods of intelligence gathering or and things along those lines.

[00:58:21] Speaker 12:
And, you know, courts have held for decades that the government has a compelling interest in protecting that kind of information.

[00:58:27] Speaker 12:
Of course, it's not just our say so that is superintended by the district court.

[00:58:31] Speaker 12:
We have to make showing we have to convince the district court.

[00:58:34] Speaker 12:
And again, the use of ex parte evidence in this case was quite limited.

[00:58:39] Speaker 13:
You said that the district court makes a de novo determination unlike in a habeas circumstance where we're where the court is reviewing a state court there's no difference to the government's determination.

[00:58:50] Speaker 13:
How does that square with the presumption of

[00:58:55] Speaker 13:
reliability or presumption of regularity that is applied, which does defer to government documents, government witness statements, and the like.

[00:59:06] Speaker 13:
There is some deference built in.

[00:59:07] Speaker 12:
So it's not deference as to the substance, Judge Pillard.

[00:59:11] Speaker 12:
It's not a presumption that the government documents are accurate.

[00:59:15] Speaker 12:
It's a presumption that they were correctly recorded, essentially.

[00:59:18] Speaker 12:
It's a rebuttable presumption.

[00:59:20] Speaker 12:
You know, as I said, we have to turn over exculpatory evidence to the detainee.

[00:59:25] Speaker 12:
The detainee can ask for discovery.

[00:59:27] Speaker 12:
There's a robust exchange of information with the detainee and even much more so with his cleared counsel.

[00:59:33] Speaker 12:
And so there's an opportunity for a detainee to contest

[00:59:37] Speaker 12:
whether in fact a government document is entitled to the presumption of regularity.

[00:59:41] Speaker 12:
And again, it's not a presumption of accuracy or truth.

[00:59:44] Speaker 12:
It's a presumption of regularity.

[00:59:46] Speaker 12:
It's unclear if that played.

[00:59:47] Speaker 12:
So first of all, I'd say I should have said at the start, we think Mr. Alhela has waived a right to challenge that aspect of the procedures because he didn't challenge that before the panel.

[00:59:56] Speaker 12:
But it's also unclear what role, if any, that played in these proceedings in this case.

[01:00:01] Speaker 14:
Council, can I go back to the ex parte evidence challenge

[01:00:06] Speaker 14:
You mentioned that it was limited, the court's reliance on it only four times.

[01:00:11] Speaker 14:
You give us the page numbers, but I'm just trying to understand whether or not that's consistent with what we and other courts have said about the Classified Information Procedures Act kind of process.

[01:00:23] Speaker 14:
Doesn't the government have to choose, there can be no reliance unless there is an adequate substitute given to defense counsel?

[01:00:34] Speaker 12:
But I don't think judge Jackson that there are any bright land rules like that there are the district court has to make a decision before allowing experts evidence that the that the evidence is material and then access.

[01:00:45] Speaker 12:
wouldn't be necessary access by the clear Council wouldn't be necessary to facilitating meaningful review also has to look at whether there are.

[01:00:52] Speaker 12:
You know, less sensitive substitutes alternatives that that could be available.

[01:00:57] Speaker 12:
If a district court decides that it would be inappropriate to allow the submission of stuff or reliance on a certain piece of expertise evidence because it thinks you need to have meaningful, you would need to reveal it for meaningful review.

[01:01:10] Speaker 12:
It can order the government to turn that information over.

[01:01:13] Speaker 12:
If the government is unwilling to do that, then the district court can order an appropriate sanction, which might include not allowing the government to rely on that evidence.

[01:01:22] Speaker 14:
I guess I'm wondering how that really plays out in a situation in which we're talking about evidence, for example, that goes to the credibility, as you say, happened here.

[01:01:32] Speaker 14:
So I think that makes sense in the context of some exculpatory piece of information, and we're trying to sort of

[01:01:39] Speaker 14:
assess it out so that we can determine whether or not an adequate substitute can be given, et cetera.

[01:01:45] Speaker 14:
But when you're talking about reliance on evidence that goes to something like credibility of a witness, is there really any opportunity to provide an adequate substitute?

[01:01:58] Speaker 14:
And if not, how can the court rely on that?

[01:02:02] Speaker 12:
So there is subject and if there's a little bit of awkwardness here because we can't talk about specifics, obviously, and I would just say you can look at the expert a materials and make a determination for yourself.

[01:02:11] Speaker 12:
But I can give sort of general answers and examples and so, for example, if a piece of X of evidence that submitted expert day because it, you know, has some particular sensitivity.

[01:02:22] Speaker 12:
If the substance of the information that would be conveyed by that has been conveyed by a different, less sensitive piece of information, then that would be a reason why you wouldn't need to turn it over to the counsel or to the petitioner, because it would be essentially cumulative information-wise.

[01:02:36] Speaker 12:
Maybe the petitioner already has that information that goes to credibility from a different, less sensitive piece of information that wouldn't potentially reveal a source or a method of intelligence gathering, something like that.

[01:02:48] Speaker 12:
It's hard for me to be more specific, but that's the type of thing that the district court judge considers.

[01:02:52] Speaker 12:
And again, Judge Lamberth did not go easy on the government and nor should he have.

[01:02:56] Speaker 12:
He put us through our paces and we take seriously our obligations when we are detaining someone and depriving them of liberty, of our obligations to give them a fair shake in habeas proceedings.

[01:03:06] Speaker 12:
And we believe that that was done here.

[01:03:08] Speaker 12:
And this court for the last 13 years has sort of superintended the district courts

[01:03:15] Speaker 12:
habeas proceedings and made sure that these protections are in place without ever having to decide expressly whether the due process clause would provide any extra layer of protection.

[01:03:25] Speaker 14:
I'm sorry, can I just shift you really quickly?

[01:03:28] Speaker 14:
I'm afraid I'll lose the floor in a second.

[01:03:32] Speaker 14:
To the sort of justiciability concerns that you've heard my colleagues raise with Mr. Zoits.

[01:03:38] Speaker 14:
I'm wondering whether the government's position is that after the PRB's determination

[01:03:44] Speaker 14:
It is entitled to hold Mr. Alhalla, Hila, indefinitely not withstanding that decision.

[01:03:55] Speaker 14:
Is that the government's legal position?

[01:03:59] Speaker 12:
So I'm coupled with the word indefinitely.

[01:04:01] Speaker 12:
You know, we don't believe his detention is indefinite.

[01:04:04] Speaker 12:
We don't know how long it will last because we don't know how long the hostilities will go on.

[01:04:08] Speaker 12:
But we do think we can hold him.

[01:04:09] Speaker 12:
So he's been cleared he's been he's been declared eligible for release but still found to pose a threat.

[01:04:14] Speaker 12:
And so we don't think there's any obligation under principles of the law of war.

[01:04:18] Speaker 12:
Unless counsel has not pointed to any principle of the law of war.

[01:04:21] Speaker 12:
that we're required to release somebody who's held as an enemy combatant when we believe that he still poses a threat.

[01:04:27] Speaker 14:
That being said- So in the government's view, is there still a case or controversy in light of this dispute between you and Mr. Zoyt on this point?

[01:04:35] Speaker 12:
I think there's still a case or controversy.

[01:04:36] Speaker 12:
Of course, the habeas proceeding was about whether he was originally validly declared an enemy combatant, and we agree with the district court's determination that he was.

[01:04:43] Speaker 12:
We have now declared him eligible for transfer and we have no intention of holding him any longer than we would like to.

[01:04:50] Speaker 12:
It is a complicated process to find a place where we can transfer him.

[01:04:55] Speaker 12:
He is Yemeni.

[01:04:56] Speaker 12:
Congress has prohibited us from transferring detainees to Yemen.

[01:04:59] Speaker 12:
I think approximately half of the people who are on Guantanamo who have been declared eligible for transfer are Yemeni and so it's complex and we are working on it.

[01:05:08] Speaker 12:
And I'm not at liberty to sort of reveal the details, but it is a sensitive sort of diplomatic, military, foreign policy operation to try to find a place where we can send these people

[01:05:19] Speaker 14:
a place that will offer the necessary security insurances and, you know, we can sort of, there's a little bit of a back and forth of trading difficulties, but you're, you're, you are affirming that there's still a case or controversy on the detention point, not withstanding all of that.

[01:05:35] Speaker 12:
I think that's right.

[01:05:36] Speaker 12:
I mean, we, we have the authority to continue to hold him.

[01:05:38] Speaker 12:
I don't think this court would, would really have the authority to just order his release, you know, under

[01:05:45] Speaker 12:
precedents like Yemba and Younoff, you couldn't order him to be released in the United States.

[01:05:50] Speaker 12:
And it is really figuring out where we can send him with the necessary security assurances is really sort of a prototypical executive branch type of operation.

[01:06:00] Speaker 12:
It involves sensitive military determinations and foreign policy determinations.

[01:06:03] Speaker 01:
But what if he says, which I think is part of what he said, as counsel has said in the opening argument, that I'm okay with the release subject to security conditions.

[01:06:14] Speaker 01:
So what's the difference?

[01:06:15] Speaker 01:
What's the difference between where the executive branch is under its own executive order and what is being requested if conditional release means release subject to conditions that involve security assurances?

[01:06:27] Speaker 01:
Well, before you could order conditional release, Judge Finnevasan, you would have to find that the Constitution requires us to... No, I understand that, but I'm just asking as... I'm skipping past that and I know there's a legal step involved, but I'm just trying to understand as a practical matter, what's the difference?

[01:06:46] Speaker 01:
If that's the request of a habeas petitioner is release, but subject to the same security assurances that the government has already said,

[01:06:56] Speaker 01:
if in existence would warrant release, then as a practical matter, what's the difference?

[01:07:02] Speaker 12:
So I think as a practical matter, it would be sort of a null order because it's unclear what that would add to the process that's already going on.

[01:07:08] Speaker 12:
And so maybe that's your question is there's no practical difference, but the flip side of that is it wouldn't do anything, right?

[01:07:14] Speaker 12:
The Article III courts can't really superintend

[01:07:18] Speaker 12:
the executive branch's sensitive foreign policy and military negotiations with foreign- Which is the null order.

[01:07:24] Speaker 03:
I just want to be clear in your sense.

[01:07:26] Speaker 12:
I'm sorry.

[01:07:26] Speaker 03:
I think the judicial order wouldn't have any effect because- What would the judicial order say in the context of the chief judge's question?

[01:07:35] Speaker 03:
That's what I'm clear about.

[01:07:37] Speaker 12:
Well, I can let the chief judge correct me if I get it wrong because it was his order, but I think the order would say,

[01:07:42] Speaker 12:
He's ordered to be released, subject to security conditions, to an appropriate country, something along those lines.

[01:07:47] Speaker 12:
Did I get that right, Judge Srinivasan?

[01:07:48] Speaker 01:
Right.

[01:07:49] Speaker 01:
So it would be an order of conditional release that mirrors the conditions that the government has already imposed upon itself via the final determination.

[01:07:59] Speaker 12:
So it's just unclear to me what that would do, because I don't think it would be appropriate for a court to try to impose itself into the negotiations that are going on.

[01:08:07] Speaker 12:
And so it would just be sort of words on a paper and I don't think it would have any effect.

[01:08:11] Speaker 02:
What if you were, while you all are going through this process, were to go back and actually win a habeas petition, have it declared that he is not, was not properly classified as an enemy combatant or he's not lawfully held under the law of war?

[01:08:27] Speaker 02:
then it would just be like the Uyghurs looking for a country.

[01:08:30] Speaker 02:
It would not be looking for security conditions.

[01:08:33] Speaker 12:
Is that correct?

[01:08:34] Speaker 12:
I think that's right, Judge Millett.

[01:08:35] Speaker 12:
The difficulty, of course, with the Uyghurs was that they had convention against the Uyghurs.

[01:08:38] Speaker 02:
No, I understand that.

[01:08:39] Speaker 02:
I'm just trying to say it changes and presumably would take care of at least one part.

[01:08:45] Speaker 02:
Now, I don't know whether the bigger part of finding releases is finding a country or finding

[01:08:51] Speaker 02:
the security conditions, but I should think eliminating the need for security conditions would at least alleviate the government's burden in this process, not maybe not, as Judge Randolph said, eliminate it entirely, but maybe two years rather than 10 and counting.

[01:09:06] Speaker 12:
So let me, if I could clarify my answer, because I think I misunderstood the question.

[01:09:08] Speaker 12:
I think the government still has a position that if we lose an habeas proceeding, we still can require certain security assurances.

[01:09:17] Speaker 12:
in transferring somebody.

[01:09:20] Speaker 12:
I think that's an issue that might have to be litigated.

[01:09:22] Speaker 02:
They've been transferring as to where they go.

[01:09:24] Speaker 02:
If a court has said this person was not an enemy combatant, he was just an employee of the government of Yemen,

[01:09:33] Speaker 02:
Do you have to talk about domestic habeas, if it's say someone that you all said was a leader of a violent gang and the courts say you're all wrong, habeas granted, you still get to say, well, we need to slow down and figure out when we're going to release them until some gang treaty is negotiated?

[01:09:50] Speaker 12:
No, Judge Millett, we don't need to do that.

[01:09:52] Speaker 12:
But of course, habeas, like due process, is a context-specific set of rights.

[01:09:57] Speaker 12:
And I think our position in other cases has been that we do have the right to insist on certain security measures

[01:10:03] Speaker 12:
even when the writ is granted.

[01:10:06] Speaker 02:
Has any court said you have a right to insist on security measures if the person were determined not to be an enemy combatant and not properly held at all under law of war or otherwise?

[01:10:19] Speaker 12:
I don't believe that's been litigated.

[01:10:20] Speaker 12:
As you know, there's a lot of water under the bridge in these habeas proceedings, and so I could be missing something, but I don't believe that's been litigated or decided by any court.

[01:10:28] Speaker 12:
And so we can reserve that question

[01:10:29] Speaker 12:
if I were to arise.

[01:10:31] Speaker 12:
Again, of course, I think the district court correctly determined that Mr. Osceola.

[01:10:36] Speaker 02:
That suggests that there is a difference between the order, an order that just sort of said, go ahead and do what your executive order says to do.

[01:10:45] Speaker 02:
And there is certainly at least an open legal question, whether it would be a very, a different habeas order for he to prevail in his habeas proceedings with the process.

[01:10:56] Speaker 12:
But I think it would depend on what the question is that Judge Srinivasan skipped over.

[01:10:59] Speaker 12:
If the determination is made that maybe he was initially an enemy combatant, but now based on the PRB's determination, he needs to be released, then I think there really wouldn't be a difference.

[01:11:09] Speaker 12:
If it's, as you suggest, that he was never appropriately held, then you would have different questions that would come up.

[01:11:15] Speaker 12:
So I think that's where the delta is in my answers.

[01:11:19] Speaker 03:
So winning in habeas

[01:11:22] Speaker 03:
doesn't accomplish anything for the detainee, because the government takes the position it can still hold you until the hostilities are over, as declared by the president?

[01:11:39] Speaker 12:
No, not at all, Judge Rogers.

[01:11:41] Speaker 12:
If someone wins in habeas in the sense that the district court or the court of appeals finds that

[01:11:45] Speaker 12:
he was not correctly declared an enemy combatant, then we could not hold him for the duration of hostilities.

[01:11:52] Speaker 12:
What I said is that we have reserved the right to insist on security measures in the country where we transfer somebody in that kind of a situation.

[01:11:59] Speaker 03:
But that's- That's the context of my question.

[01:12:03] Speaker 12:
Okay, but so what we would not assert a right to continue to hold someone for the duration of hostilities in that context.

[01:12:10] Speaker 03:
I mean, yes, that's what we're trying to understand in this case.

[01:12:15] Speaker 03:
I mean, what is the realistic difference?

[01:12:18] Speaker 03:
The petitioner wins his habeas determination and is ordered release.

[01:12:26] Speaker 03:
The government says we're not going to release him because we can't find a country that would provide what we think, nevertheless, are necessary security assurances.

[01:12:39] Speaker 12:
I mean, many, many, many people have been released from Guantanamo, including all the people.

[01:12:45] Speaker 03:
I'm trying to focus on where we are now.

[01:12:48] Speaker 03:
All right.

[01:12:49] Speaker 03:
Let's not talk about the past.

[01:12:51] Speaker 03:
I'm talking about what you are saying to this court today.

[01:12:55] Speaker 12:
What I'm saying is that there is no basis for thinking that if someone had the writ granted, you would continue to hold them for quite a long period of time.

[01:13:02] Speaker 12:
People have had the writs granted and they are no longer at Guantanamo.

[01:13:06] Speaker 11:
That's not what's happening.

[01:13:07] Speaker 11:
Your position is that the government could hold them for a long time.

[01:13:10] Speaker 11:
That you can hold them until whatever security assurances the executive branch determines have been satisfied, which they could determine have never been satisfied because someone is still a threat or still dangerous under the understanding of the executive.

[01:13:25] Speaker 11:
If that's the case, then what are we ever doing in any of these habeas cases, maybe?

[01:13:30] Speaker 12:
Well, that's why I'm pointing to sort of what has already happened in the actual world, which is that where the writ has been granted, people have been transferred.

[01:13:37] Speaker 12:
And so I don't think there's any reason to fear that the government would sort of sit on its hands and say, oh, well, gosh, we just can't find someone who will take this person with the right security.

[01:13:45] Speaker 03:
Well, counsel, your whole argument is that this is discretionary as to whether or not the government can impose security conditions.

[01:13:54] Speaker 03:
So winning habeas doesn't necessarily mean that the petitioner won't be held longer because while there is a country available, the executive has determined that the security conditions which it decided are necessary have not been met.

[01:14:13] Speaker 03:
That's all I'm trying to be clear about here.

[01:14:17] Speaker 03:
I understand as counsel, you don't want to give too much away, but you know,

[01:14:22] Speaker 03:
It's just bizarre here when we're talking about the writ and its purpose as defined repeatedly by the Supreme Court.

[01:14:36] Speaker 03:
And now we're hearing the Department of Justice telling us, well, it doesn't really mean what it says.

[01:14:41] Speaker 03:
The King could continue to hold them if he thought it was going to be dangerous.

[01:14:47] Speaker 12:
I mean, I just don't think that's quite what we're saying.

[01:14:49] Speaker 12:
I think we would hope so.

[01:14:50] Speaker 03:
Well, I'm pushing you because I'm trying to understand exactly what the government thinks a court order means.

[01:14:59] Speaker 12:
So we take seriously a court's order that someone should be released.

[01:15:02] Speaker 12:
And I think, as I've said a couple of times now, that is evidenced by the fact that the people who have been ordered released have been released, right?

[01:15:08] Speaker 12:
And so we are not trying to sort of duck our responsibility in any respect here.

[01:15:12] Speaker 12:
I think if you had a situation where the writ was granted and we took a super long time, then the writ could be reopened and the court could step in.

[01:15:19] Speaker 02:
It sounds like there's actually a...

[01:15:23] Speaker 02:
There is a difference in between having a writ granted and just having the PRB say we shouldn't detain you because is Mr. Albahani doesn't have a writ, but he has a PRB order and he's still there.

[01:15:34] Speaker 02:
But you said when people get writs, they've been transferred.

[01:15:38] Speaker 02:
It sounds like it does make.

[01:15:40] Speaker 12:
Well, I think I believe Mr. Albahani is also Yemeni.

[01:15:44] Speaker 12:
And so I'm not aware of what has happened in situations if there are any where someone who is Yemeni.

[01:15:49] Speaker 12:
has had the right granted that's an extra layer of complication that Congress has added by preventing us from sending those people home basically because of security national security reasons.

[01:16:01] Speaker 13:
Just maybe more legal question as opposed to the practical question you took the position.

[01:16:08] Speaker 13:
As I read your brief at pages 28 to 29, you're saying there's, there's no need to reach a substantive due process claim here, because substantive process doesn't require any more even if it applied doesn't require any more than habeas already.

[01:16:23] Speaker 13:
deals with.

[01:16:24] Speaker 13:
And then you talk about the AUMF and how if there's no reason to continue to demand the AUMF, the government will undertake to release the person subject to appropriate conditions.

[01:16:35] Speaker 13:
And this is sort of the back end habeas rather than the front end that we've also been talking about, which is what's he ever properly said.

[01:16:41] Speaker 13:
We're talking about a world in which conditions are appropriate, whether by order of the court or not.

[01:16:46] Speaker 13:
And then you turn I turn the page and I find that instead of saying the government thinks that he no longer can be lawfully detained under the AMF, the government doesn't say that the government says that detention remains lawful for the duration of the conflict.

[01:17:03] Speaker 13:
And my question is,

[01:17:05] Speaker 13:
Where I thought you were going is that you were saying as a statutory matter, it's available to the court to say, no, it's no longer lawful under the AUMF because of the executive's own determination that the critical fact that is needed for current detention is missing under the executive order and the government's own policy.

[01:17:32] Speaker 12:
So I don't think that's right for a couple of reasons, Judge Pillard.

[01:17:34] Speaker 12:
So first, the AUMF, which is then sort of informed by the NDA that came later, authorizes detention for the duration of hostilities.

[01:17:42] Speaker 12:
No one has contended in this case, neither Mr. Al Gheela and certainly not the government, that the hostilities have ended.

[01:17:47] Speaker 12:
It's a separate question about whether the particular person intends to return to the battlefield.

[01:17:53] Speaker 12:
The PRB found that he did not have, Mr. Al Gheela does not have an intention to return to the battlefield.

[01:17:58] Speaker 12:
but found that he still poses a threat to the national security of the United States.

[01:18:03] Speaker 12:
And so you would sort of look to principles of law of war and military detention in deciding what is the authority to continue to hold someone in that situation.

[01:18:10] Speaker 12:
And there's nothing in those principles that would suggest that you have to repatriate someone

[01:18:15] Speaker 12:
who you've captured in World War II from Germany, if you think they continue to pose a threat.

[01:18:21] Speaker 13:
Right, but under the executive order, and I'm looking at section two, continued law of war detention is warranted for a detainee subject to the periodic review in section three of this order if it's necessary to protect against a significant threat to security of the United States.

[01:18:37] Speaker 13:
Conversely,

[01:18:38] Speaker 13:
I take it it is not warranted where it is not necessary to protect against a significant threat.

[01:18:44] Speaker 13:
And so your position is that's not on its own enforceable that we would have to recognize a substantive due process, right?

[01:18:54] Speaker 13:
And then use that as a factual basis or is it possible that that's enforceable apart from any determination that substantive due process applies here?

[01:19:05] Speaker 12:
But what I would say is that we, based on that determination, have determined not to continue to detain him.

[01:19:10] Speaker 12:
And as soon as we can find an appropriate place to transfer him, we will do that.

[01:19:14] Speaker 12:
But I don't think that creates a substantive due process right for him to no longer be detained.

[01:19:19] Speaker 12:
Substantive due process.

[01:19:20] Speaker 13:
It would create any legal right.

[01:19:21] Speaker 13:
That's really my question.

[01:19:22] Speaker 13:
If it's not a substantive due process right, would it be any legal right?

[01:19:24] Speaker 13:
And I take it your answer is no.

[01:19:26] Speaker 12:
I think no at this point.

[01:19:27] Speaker 12:
I mean, I do think if in 10 years there

[01:19:31] Speaker 12:
we're still in the same situation, the court could revisit the question in a new habeas petition or a reopened habeas petition.

[01:19:36] Speaker 12:
But I think, you know, I don't want to opine on what the arguments would be in that situation, because that's not the situation we have here.

[01:19:42] Speaker 12:
It's only been a couple of months.

[01:19:44] Speaker 12:
It's a very complicated process.

[01:19:46] Speaker 12:
I can say that we are committed to transferring Mr. Alhila out of Guantanamo.

[01:19:50] Speaker 12:
And, you know, people can take me at my word or not, but I mean it.

[01:19:54] Speaker 12:
You know, President Biden has said publicly he means to close this detention center.

[01:19:58] Speaker 12:
and we are working hard to do that.

[01:20:00] Speaker 04:
Ms.

[01:20:02] Speaker 04:
Harrington, I want to go back to fundamentals for just a minute and make sure I understand what you said 45 minutes ago in your first couple sentences.

[01:20:13] Speaker 04:
I heard you say that the government believes that detainees at Guantanamo are entitled to robust procedures, right?

[01:20:22] Speaker 04:
And did I hear you also say that those procedures are equivalent to those required by due process?

[01:20:28] Speaker 12:
Yes, we think they are at least as protective.

[01:20:31] Speaker 04:
At least as protective.

[01:20:32] Speaker 04:
And that, I assume, includes Matthews, the Matthews state, right?

[01:20:36] Speaker 04:
You apply Matthews, correct?

[01:20:39] Speaker 04:
Right.

[01:20:39] Speaker 04:
So in what respect do you think the government and the petitioner disagree in this case?

[01:20:48] Speaker 12:
In terms of what is, I mean, what we think is that the process.

[01:20:51] Speaker 04:
Your argument now sounds just like his argument.

[01:20:54] Speaker 04:
I mean, there's a debate about whether we should, we should rule that due process applies in Guantanamo, but which is what he wants.

[01:21:02] Speaker 04:
But I hear you saying, and this part of your

[01:21:06] Speaker 04:
of your opening argument was written, I think you were saying that the procedures that he is entitled to are as at least as robust as those required by due process and Matthew Fieldridge.

[01:21:19] Speaker 04:
So I don't any longer understand where the two of you are disagreeing.

[01:21:23] Speaker 12:
So I mean, we disagree on the bottom line, which is whether those procedures were satisfied in this case, whether the procedures that are required that would be required by the due process clause were satisfied here.

[01:21:32] Speaker 04:
Well, then what's the government's objection to this court ruling that due process does apply?

[01:21:37] Speaker 04:
I mean, I know, I understand the avoidance issue and everything.

[01:21:40] Speaker 04:
I'm just curious as to why you're so adamant in your brief that we shouldn't reach that if your position is that they, in fact, are already met here and that's all that's required anyway.

[01:21:50] Speaker 12:
I mean, we agree that it wouldn't make a difference to this case to make that holding.

[01:21:54] Speaker 12:
And that's, in our view, a reason not to make it, right?

[01:21:57] Speaker 12:
And so we think it's a complicated question.

[01:21:59] Speaker 12:
It requires the court to parse the interaction of Boumerian and Eisen Trigger.

[01:22:04] Speaker 12:
It requires the court to figure out whether the kind of functional approach in Boumerian that it applied to the suspension clause should also apply to the new process clause at Guantanamo.

[01:22:14] Speaker 04:
All right.

[01:22:14] Speaker 04:
So just to make sure I understand.

[01:22:17] Speaker 04:
So when you said at the beginning

[01:22:20] Speaker 04:
the procedures he got were as robust as he would be under the due process clause.

[01:22:25] Speaker 04:
That was case-specific.

[01:22:27] Speaker 04:
I thought I heard you saying that detainees at Guantanamo are entitled to procedures at least as robust as the due process clause.

[01:22:34] Speaker 12:
That's right, Judge Edel.

[01:22:35] Speaker 12:
I think it was case-specific, and that's obviously the specific question that's set up for the court.

[01:22:39] Speaker 12:
But more generally, the procedures that are in place in the case management order, the amended case management order that governs these KBS proceedings,

[01:22:47] Speaker 12:
would satisfy Matthews versus Eldred.

[01:22:49] Speaker 12:
And I think Mr. Zinon suggested that you would do a Matthews versus Eldred analysis with respect to maybe each evidentiary question that a district court was faced with.

[01:22:57] Speaker 12:
But that's not really generally how Matthews applies.

[01:22:59] Speaker 12:
It applies to set up the procedures that govern a type of proceeding.

[01:23:03] Speaker 12:
And I don't know that the district courts ever expressly engaged in that analysis in a written opinion when they set up the case management order.

[01:23:13] Speaker 12:
But I think if you look at what resulted in the case management order,

[01:23:16] Speaker 12:
It is a balancing of the detainees important interest in being able to challenge the lawfulness of his detention and government's important interest in protecting sensitive information.

[01:23:24] Speaker 12:
I see.

[01:23:25] Speaker 04:
Is that your answer to his hypothetical about the intelligence officer who's now at Langley?

[01:23:31] Speaker 12:
Yeah, I mean, I think there is room under the case management order for these evidence specific

[01:23:36] Speaker 12:
back and forth, and you can, you know, if you read the record below, you will see that that is what happened in this case with respect to ex parte material and classified material.

[01:23:45] Speaker 12:
Over the long history of the district court proceedings, you know, more and more classified information was shared with declared counsel in part because circumstances in Yemen changed, and so some things became less sensitive over time.

[01:23:57] Speaker 12:
But in part also because the district court pushed and pushed and pushed and we did everything we could to accommodate, you know, supplying as much information as we could without sacrificing national security.

[01:24:08] Speaker 00:
I'd like to drill down on some specifics here.

[01:24:12] Speaker 00:
And in Bismillah, the court described the government's position as far as what petitioners council

[01:24:25] Speaker 00:
had a right to review, even if they had clearance, the government had interpreted that they only had clearance to the extent that they have a need to know that classified information.

[01:24:44] Speaker 00:
And the government's position was that petitioners council did not have a need to know highly sensitive information

[01:24:54] Speaker 00:
information pertaining to a highly sensitive source and information pertaining to anyone other than the detainee.

[01:25:03] Speaker 00:
That was what the court said in its opinion.

[01:25:07] Speaker 00:
My understanding from reading this record that that's still the government's kind of interpretation of what petitioners council needs to know.

[01:25:19] Speaker 00:
So even if they have clearance,

[01:25:21] Speaker 00:
If the information falls within one of those three categories, the government seeks basically an exception so that they don't have to provide that to Petitioners Council.

[01:25:34] Speaker 00:
Am I right about that or not?

[01:25:37] Speaker 12:
I'm not sure I can say that those are the only three categories or that those three categories would apply all the time.

[01:25:42] Speaker 12:
Basically, the structure that's set out in this court's opinion in Al Oda

[01:25:46] Speaker 12:
governs the ex parte determinations.

[01:25:50] Speaker 12:
And one of the factors is whether revealing the information to cleared counsel is necessary to facilitate meaningful review by the detainee.

[01:25:58] Speaker 12:
And if it's necessary, then the information has to be shared or there is a sanction that can be imposed by the district court.

[01:26:04] Speaker 12:
And so just to give sort of, again, we can talk about the record in this case, but I can give you some sort of general examples of things that might fall in those categories.

[01:26:10] Speaker 12:
where we would think that clear counsel wouldn't have any to know.

[01:26:13] Speaker 12:
So sometimes intelligence reports have information about a number of unconnected things.

[01:26:17] Speaker 12:
That's just the form in which they are created and transmitted.

[01:26:20] Speaker 12:
And so we would redact anything that's not related to Mr. Al Hila or to any sources of information about his case or something, because it's just

[01:26:28] Speaker 12:
has nothing to do with the proceedings, and therefore the clear counsel wouldn't have a need to know.

[01:26:33] Speaker 12:
Judge Lamberth, which is a little bit more stringent, he's a little more stringent than some other judges, he requires us to justify all of those reductions, even when they're not relevant to the case.

[01:26:41] Speaker 12:
And so that's technically ex parte material that is submitted to Judge Lamberth, but it's not material that we are relying on in this case.

[01:26:49] Speaker 12:
And it's the type of material that would not be shared with cleared counsel.

[01:26:52] Speaker 00:
So I don't know if that's- But my point is that

[01:27:00] Speaker 00:
due process as defined in Hamdi, the core question was really notice and a fair opportunity to kind of respond to the factual allegations of the government.

[01:27:21] Speaker 00:
Right.

[01:27:21] Speaker 00:
Hamdi didn't pass upon whether

[01:27:28] Speaker 00:
it would comport with procedural due process to allow the fact finder to review information that went to reliability of government sources or the probative value of exculpatory material from the government ex parte, right?

[01:27:53] Speaker 12:
Yeah.

[01:27:55] Speaker 00:
So that's an open question for us, right?

[01:27:58] Speaker 12:
Well, but this part has engaged with this question before in cases like Al Oda.

[01:28:02] Speaker 12:
And what I can say is that those same touchstones govern district court's decisions about ex parte evidence.

[01:28:08] Speaker 12:
Is it necessary, is sharing it necessary to facilitate meaningful review?

[01:28:12] Speaker 12:
You know, is it necessary, and that would include, you know, is it necessary to allow the detainee to rebut the factual basis for his detention?

[01:28:20] Speaker 00:
But here we have information that went to reliability

[01:28:25] Speaker 00:
of hearsay declarants that was submitted to the court ex parte, right?

[01:28:33] Speaker 00:
That's the core question here is in these cases where the whole case boils down to hearsay is the reliability of those declarants.

[01:28:47] Speaker 00:
And so on a key critical issue that goes to the merits, that goes to the issue

[01:28:54] Speaker 00:
that were worried about the risk of an erroneous determination that some determinations on that key issue were made after an ex parte review, where by definition there was not an adversarial

[01:29:18] Speaker 00:
you know, presentation with respect to that information.

[01:29:24] Speaker 00:
And again, adversarial presentation goes to the core of reliability and due process.

[01:29:33] Speaker 00:
So why isn't that problematic?

[01:29:35] Speaker 12:
So Judge Wilkins, I will say, you know, that is a dynamic that is always in play when you have a case that involves sensitive national security information that can't be shared with the other side and courts have

[01:29:46] Speaker 12:
you know, sort of managed to deal with it and it's a high standard.

[01:29:49] Speaker 12:
And of course, the district court himself, the district court judge himself is there to be able to evaluate the evidence and you can look at the evidence and say what you think.

[01:29:57] Speaker 12:
It's a little bit hard to engage with you specifically.

[01:29:59] Speaker 12:
I'm not trying to dodge the question without, because we can't talk about the specifics of this case.

[01:30:04] Speaker 12:
But again, you know, some ex parte evidence that's included that the judge can see is cumulative information wise of other evidence that clear counsel has seen or that has been shown.

[01:30:13] Speaker 12:
In some cases, I'm just speaking sort of in general terms, not necessarily about anything that happened in this case, although I think this type of thing came up with respect to some of the ex parte evidence in this case.

[01:30:23] Speaker 12:
And so in that case, a district court can appropriately make a determination that you don't need to undertake the national security risk by sharing that information when it wouldn't provide any additional information to the detainees cleared counsel.

[01:30:37] Speaker 12:
I'm not sure what else I can say in this open setting that would make you feel better about the ex parte, and I mean that in a pejorative that would sort of assuage your concerns, your legitimate concerns about what's happened with the ex parte material in this case.

[01:30:50] Speaker 00:
Well, what you can do is help me understand the orders that you talk about in your brief, pages like eight to nine or seven to nine, where you're talking about

[01:31:05] Speaker 00:
the, you know, what happens with classified information and how it's disclosed and not.

[01:31:13] Speaker 00:
You point out that in the case management order, paragraph 1F, that the government can move for an exception to disclose to Petitioners Council, and that's what we're talking about.

[01:31:27] Speaker 00:
And, and that the court has the authority to overrule the exception and order disclosure, just so that we're clear, you're agreeing that the court can order that But of course, if the government doesn't want to abide by that order.

[01:31:47] Speaker 00:
the court can't kind of force the government to turn it over, then the court can determine what sanction or whether it's going to say the government just can't rely on that piece of evidence, right?

[01:32:00] Speaker 12:
Absolutely, yes.

[01:32:02] Speaker 00:
But that order, that case management order, doesn't say what standard

[01:32:08] Speaker 00:
the court should use in determining whether the government's exception should be sustained, right?

[01:32:19] Speaker 12:
If this court has said in our ODA what standard to use, the information, excuse me, the information has to be relevant to material, access has to be, this is the requisites to order the release of the information, access has to be necessary to facilitate meaningful review and alternatives cannot suffice to satisfy that meaningful review standard.

[01:32:38] Speaker 12:
And so oftentimes there will be a piece of information, say the identity of a source that is sensitive.

[01:32:45] Speaker 12:
This is just, again, hypothetical, and that the judge can see in an ex parte way, but that we wouldn't want to reveal to the cleared counsel or to the detainee.

[01:32:55] Speaker 12:
And so you can put in a substitute, which is like, you know, John Doe, right?

[01:32:59] Speaker 12:
You put in a pseudonym, you know, source Z, whatever.

[01:33:02] Speaker 12:
And that is a substitute, a less sensitive substitute for that information, that piece of information.

[01:33:07] Speaker 12:
And so the judge will know who the source is and then may say, well, okay, we can have that substitute, but then you need to provide additional information to let the detainee and his counsel understand where else John Doe appears in the evidence and how, you know, how those bits of information interact.

[01:33:24] Speaker 12:
And so, you know, it is a complex back and forth.

[01:33:27] Speaker 12:
It's the touchstone is does the detainee have a meaningful opportunity to challenge the basis for his detention?

[01:33:35] Speaker 12:
We embrace that as the appropriate standard and we do what we can to make sure that that's what happens.

[01:33:41] Speaker 14:
You know, we take- Can I, I feel like I have the same possible concerns that Judge Wilkins has, and I hope that I can articulate them in a question.

[01:33:52] Speaker 14:
I'm worried about whether there's a delta between what the case management order says and what you say has been required by the suspension clause with respect to the procedures.

[01:34:04] Speaker 14:
and the way in which Judge Lamberth may have vigorously applied that in this case.

[01:34:11] Speaker 14:
Is there a delta?

[01:34:12] Speaker 14:
In other words, you sort of continue to say that Judge Lamberth did a very rigorous job, and so we don't need to determine whether the due process clause

[01:34:22] Speaker 14:
requires the kind of application of these procedures in the way that he did it.

[01:34:29] Speaker 14:
But you also say that there's no difference between the suspension clause and the due process clause.

[01:34:34] Speaker 14:
So I'm a little concerned that a future judge is not going to do as vigorous a job as Judge Lamberth and that therefore there might be a gap between what the suspension clause requires and what the due process clause requires.

[01:34:47] Speaker 12:
Understood.

[01:34:47] Speaker 12:
Thank you for that clarification.

[01:34:49] Speaker 12:
So I'll say that just my understanding from my team who is litigating many of these cases is that different judges have slightly different standards.

[01:34:56] Speaker 12:
I think it's Judge Sullivan will not consider any expert evidence, right?

[01:35:00] Speaker 12:
And so different judges have applied additional layers of protection onto the case management order, but I do think the case management order itself

[01:35:08] Speaker 12:
It provides robust protections, possibly more than it would be required under the suspension clause or the due process clause.

[01:35:15] Speaker 12:
To be specific, I think the one way in which Judge Lamberth requires extra protection, this is my understanding, is that when we submit documents that are exhibits to the factual return, he requires us to justify redactions that go to what I was describing earlier.

[01:35:30] Speaker 12:
Bits of the document that talk about things that are completely unrelated to this matter,

[01:35:37] Speaker 12:
We are required, this is what I've been told, to show those to Judge Lamberth and explain why they're being redacted.

[01:35:42] Speaker 12:
And the explanation is it has nothing to do with this case.

[01:35:45] Speaker 12:
It's about something totally different and just happens to be in the same intelligence report.

[01:35:49] Speaker 12:
I think that other judges under the case management order don't require those particular types of redactions to be justified.

[01:35:54] Speaker 12:
So I think that's the only difference.

[01:35:56] Speaker 12:
And I don't think that that makes what the other judges are doing

[01:36:00] Speaker 12:
unconstitutional under the suspension clause or the due process clause if it applied.

[01:36:04] Speaker 12:
I think either way, there are robust procedures in place, robust protections, and there is always the opportunity for the back and forth.

[01:36:11] Speaker 12:
There's the opportunity for cleared counsel to seek additional information to challenge redactions.

[01:36:18] Speaker 12:
There was litigation in this case about additional discovery, and then Mr. Alhela decided to stop, and the case went to determination.

[01:36:29] Speaker 11:
If I can ask you some questions about the constitutional avoidance point that the government has has made.

[01:36:37] Speaker 11:
I guess I'll be honest, I don't see how we manage to avoid deciding a constitutional question in this case.

[01:36:45] Speaker 11:
I mean, Mr. Alhela has argued quite clearly that he believes the due process clause entitles him to more protections, more procedural

[01:36:53] Speaker 11:
and substantive protections than were afforded to him in the proceedings below.

[01:36:58] Speaker 11:
And so if we are to

[01:37:00] Speaker 11:
reject that argument, we have to decide, it seems to me, one of two things.

[01:37:05] Speaker 11:
We have to decide that the due process clause does not apply in Guantanamo Bay, or we have to decide that the due process protections are, as the government has suggested, entirely co-extensive with the suspension clause.

[01:37:20] Speaker 11:
And it seems to me both of those are quite substantial constitutional

[01:37:25] Speaker 11:
decisions.

[01:37:26] Speaker 11:
So I guess I'm not sure, you know, while we of course try to avoid constitutional questions, you know, and you've given a lot of practical reasons why perhaps Mr. Alhila has been afforded sufficient process.

[01:37:38] Speaker 11:
I'm not sure how that answers his legal claim that due process has not been satisfied here.

[01:37:45] Speaker 12:
So I mean, Judge, you're absolutely correct that there is no way to avoid making constitutional determinations in this case, Mr. Alhila's claims are constitutional.

[01:37:53] Speaker 12:
And so

[01:37:54] Speaker 12:
It's not constitutional avoidance in that traditional sense of just avoiding deciding constitutional questions.

[01:37:59] Speaker 12:
I guess our main submission is that the court should go small instead of going big and making constitutional holdings.

[01:38:05] Speaker 12:
And if sort of you look at what is the constitutional question that's presented here, it's does the, would the due process clause require additional protections in addition to what the suspension clause is already providing?

[01:38:16] Speaker 12:
if it applied, and we think the answer is no, and that's a relatively small constitutional holding, much smaller than saying, for example, the Deprocess Clause applies at Guantanamo or the Deprocess Clause does not apply at Guantanamo.

[01:38:29] Speaker 12:
I think either of those holdings would implicate an array of contexts and types of claims that are not presented here and haven't been addressed here.

[01:38:36] Speaker 11:
How is it smaller, though?

[01:38:40] Speaker 11:
I guess I don't understand how it is smaller.

[01:38:43] Speaker 11:
I mean, Judge Griffith didn't cite in his concurrence, and I'm not sure the government has cited any case saying that the standards under the due process clause and the suspension clause are equivalent.

[01:38:56] Speaker 11:
So that is quite a substantial holding.

[01:39:00] Speaker 12:
And so let me be clear.

[01:39:01] Speaker 12:
Thank you for that question, Judge Rao.

[01:39:02] Speaker 12:
We're not urging the court to say that in all contexts, the suspension clause and the due process clause

[01:39:07] Speaker 12:
provide the same protection.

[01:39:08] Speaker 12:
Whatever the court holds, we think it should make clear that it is only deciding what constitutional protections are provided in habeas proceedings for Guantanamo Bay detainees.

[01:39:17] Speaker 12:
Because there's a different balancing of rights that would be necessary in a different context or with respect to different types of claims.

[01:39:25] Speaker 12:
And so we think in this context, what's required in habeas is quite robust given the context of having review of an executive determination.

[01:39:34] Speaker 12:
As I said, it's de novo review.

[01:39:37] Speaker 12:
obligations on the government to turn over inculcatory and exculpatory evidence in ways that wouldn't necessarily apply in what one would think of as a more traditional habeas context.

[01:39:47] Speaker 12:
And so in this context where you have these robust habeas protections, we think the due process clause wouldn't apply any greater protection.

[01:39:54] Speaker 12:
And it's in part because the purpose of both sort of layers of protection is exactly the same.

[01:39:59] Speaker 12:
To provide the detainee with a meaningful opportunity to challenge the basis of his detention

[01:40:04] Speaker 12:
including by challenging the factual basis and presenting exculpatory evidence.

[01:40:08] Speaker 12:
Those are the same purposes.

[01:40:11] Speaker 12:
And so when they're applied in this context, they would lead to the same result.

[01:40:15] Speaker 12:
Has the Supreme Court held that?

[01:40:18] Speaker 12:
Has the Supreme Court held that they would apply in the same way in this context?

[01:40:22] Speaker 03:
How is it their equivalent?

[01:40:24] Speaker 12:
The Supreme Court has not held that in this context they're equivalent.

[01:40:27] Speaker 03:
Oh, it's an open question.

[01:40:28] Speaker 03:
I mean, Judge Rao is completely correct, isn't she?

[01:40:32] Speaker 12:
I do think there's no way to avoid making some constitutional holdings in this case.

[01:40:38] Speaker 12:
But I think that the signals in Boumenian were that the suspension clause requires procedures in habeas that could be more robust than what the due process clause requires, because again, Justice Kennedy assumed, again, without deciding you're right about that, Judge Rogers, that the CSRT processes satisfied due process, but that quite a bit more was required through the suspension clause in habeas proceedings.

[01:41:00] Speaker 11:
So I mean the government's position is that the due process clause provides the same or possibly less than, you know, protections than the suspension clause.

[01:41:15] Speaker 11:
I mean, that's quite a, I'm not sure how that is a small constitutional holding.

[01:41:19] Speaker 11:
I mean, if we think due process is an important constitutional right, which I think I'm sure all the judges of this court believe to suggest that, you know, we can just sort of say, well, this is good enough.

[01:41:32] Speaker 11:
It's the same as this other provisions that we get under the suspension clause.

[01:41:37] Speaker 11:
I'm not sure that that gives sufficient attention to the importance of the due process right.

[01:41:43] Speaker 12:
We absolutely agree that the due process clause is important, the rights are important, and I just want to append every onto everything you say in this context, in habeas proceedings brought by Guantanamo detainees because we are not making any representations about what the overlap would be between suspension.

[01:41:58] Speaker 11:
So due process clause is contextual but once we make a due process holding in one context.

[01:42:04] Speaker 11:
It, of course, has spillover effects for other contexts.

[01:42:07] Speaker 11:
I mean, the government's brief is rife with, this is like a one-time only thing.

[01:42:11] Speaker 11:
This is just for these detainees in this place.

[01:42:14] Speaker 11:
But that's not the way law works.

[01:42:16] Speaker 11:
When we do a due process balancing in one context, it will invariably have some implications for other contexts.

[01:42:23] Speaker 11:
And we will have another data point for how do we analogize the due process rights in this particular case to other cases.

[01:42:31] Speaker 11:
So it is not a small holding for us to say,

[01:42:33] Speaker 11:
that the due process clause means this in this context.

[01:42:38] Speaker 12:
That's true.

[01:42:39] Speaker 12:
I just mean it's smaller than saying the due process clause applies at Guantanamo or doesn't apply at Guantanamo writ large in a way that might implicate other types of claims and other contexts that are not indicated in this case.

[01:42:50] Speaker 12:
And so I don't mean to suggest it's not a consequential holding, or that it's not a constitutional holding, it is, but there are even greater constitutional holdings, as you know, having written the panel opinion, that would have broader application that the court could- Well, maybe it's only smaller because the government's position is that they just have to take seriously our holding, but not follow it.

[01:43:10] Speaker 11:
So maybe it doesn't really matter.

[01:43:13] Speaker 11:
I'm not sure I understand what the question is, but we would miss Harrington you said earlier that if we were to issue a rate, you would take it seriously.

[01:43:19] Speaker 11:
You didn't say that the executive branch would then release someone.

[01:43:22] Speaker 11:
So maybe it doesn't make any difference.

[01:43:25] Speaker 12:
I don't mean to suggest that we would just ignore what the court has said.

[01:43:27] Speaker 12:
Not at all.

[01:43:28] Speaker 12:
We're very respectful of our Article III friends.

[01:43:31] Speaker 12:
What I meant to suggest is that it would not require us to do anything additional to what we are already doing, which is undertaking every effort to find somewhere to transfer Mr. Alhila.

[01:43:40] Speaker 12:
I don't think, and I haven't heard any judge on this court suggest today, that the court could sort of insert itself into the foreign policy, diplomatic, military negotiations that are going on to try to effectuate a transfer.

[01:43:52] Speaker 01:
And so, in order to find a place to send him, wouldn't as a practical matter change facts on the ground because we are already... The way you've defined the universe of situations in which the Bemidian Suspension Clause rubric is coextensive with due process is habeas proceedings involving detainees at Guantanamo.

[01:44:13] Speaker 01:
And I just want to

[01:44:14] Speaker 01:
carve out commission proceedings because, as I understand it, if there were military commission proceedings involving detainees at Guantanamo, the suspension clause wouldn't give those kinds of protections in terms of what happens during the course of a commission proceeding.

[01:44:30] Speaker 12:
And so part of the point of my suggestion is that you shouldn't make a holding that could be viewed as governing those proceedings because there's a whole different set of balancing that goes on.

[01:44:38] Speaker 12:
in a military criminal tribunal.

[01:44:41] Speaker 06:
There's a trial that began or restarted on September 7th of this year.

[01:44:49] Speaker 06:
You're familiar with that, right?

[01:44:51] Speaker 06:
Yes, sir.

[01:44:51] Speaker 06:
It's Khalid Sheikh Mohammed's trial.

[01:44:54] Speaker 06:
And if the due process clause, if this court were to hold that the due process clause applies in Guantanamo, there is absolutely no, and Judge Rao is correct about this, there's absolutely no way to distinguish that trial from a habeas proceeding.

[01:45:10] Speaker 06:
As a matter of fact, it's more serious because the government is seeking his execution.

[01:45:16] Speaker 12:
So Judge Randolph, absolutely.

[01:45:17] Speaker 12:
And you're underscoring part of the reason why we are urging caution here.

[01:45:21] Speaker 12:
We would urge the court

[01:45:22] Speaker 12:
not to hold, but did your process clause does or doesn't apply at Guantanamo?

[01:45:26] Speaker 06:
Let me just follow up.

[01:45:28] Speaker 06:
See if this sounds familiar to you.

[01:45:31] Speaker 06:
We reject the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.

[01:45:39] Speaker 06:
Is that a familiar statement to you?

[01:45:41] Speaker 12:
I believe you're quoting from Eisen Trigger?

[01:45:43] Speaker 06:
No.

[01:45:44] Speaker 12:
From our panel brief, perhaps?

[01:45:46] Speaker 06:
It's from Verdugo, the Supreme Court.

[01:45:48] Speaker 06:
That's the Supreme Court.

[01:45:49] Speaker 06:
You say it's complicated.

[01:45:51] Speaker 06:
What's complicated about that statement?

[01:45:54] Speaker 12:
What's complicated is reconciling those statements with what the court said in Boumediene.

[01:45:59] Speaker 06:
That's a holding.

[01:46:01] Speaker 06:
Boumediene did not hold that the due process clause does apply or doesn't apply.

[01:46:07] Speaker 06:
Said nothing about that and was explicit about it.

[01:46:11] Speaker 06:
So here's the question I have.

[01:46:15] Speaker 06:
That's Verdugo.

[01:46:16] Speaker 06:
The government relied on Verdugo and Isentrager and other Supreme Court cases last December when the brief was filed.

[01:46:23] Speaker 06:
Now, besides the change in administration, why is the situation now any different than it was last December?

[01:46:31] Speaker 12:
I'll be honest, it is the change in administration.

[01:46:33] Speaker 12:
The grant of rehearing on Bonk gave us an opportunity to rethink our position.

[01:46:37] Speaker 12:
And it gave us an opportunity to ask ourselves, what would be different if the due process clause applied here?

[01:46:43] Speaker 12:
And we think nothing would be different in terms of the protections that are afforded.

[01:46:46] Speaker 12:
And so therefore, we reverted to earlier positions.

[01:46:48] Speaker 12:
And I'll just say before the panel, our first position was that the court should avoid deciding the due process question.

[01:46:54] Speaker 12:
And it's true that our backup position was that if it did, it should decide it doesn't apply.

[01:46:57] Speaker 06:
But we decided that the backup position is that the due process clause does not apply in Guantanamo.

[01:47:03] Speaker 12:
That is not our position now.

[01:47:04] Speaker 12:
That was our position before the panel.

[01:47:05] Speaker 06:
It's not your position now.

[01:47:07] Speaker 06:
And this court holds that the due process clause does apply.

[01:47:10] Speaker 06:
You're not in a position to file a petition for a writ of certiorari, are you?

[01:47:15] Speaker 12:
I guess it would depend on what the court said.

[01:47:18] Speaker 12:
I don't want to disclaim any circumstance in which we could do that.

[01:47:21] Speaker 06:
Well, you can't do it because you're not arguing the point that gets decided.

[01:47:27] Speaker 12:
Well, I mean, it depends how broadly the court rules.

[01:47:29] Speaker 12:
Again, you know, we are not taking position on whether the due process clause does or doesn't apply because we think it wouldn't make any difference and therefore the court shouldn't decide it.

[01:47:37] Speaker 12:
But whatever the court decides with respect to the due process issues, we urge it to limit its holding to habeas proceedings brought by Guantanamo detainees and not to rule more broadly on sort of a territorial basis or something that sounds like a territorial basis.

[01:47:50] Speaker 12:
Because I think what we learned from the media and is that the sort of formalist views of the extra territorial reach of constitutional provisions isn't how the court is viewing those questions anymore.

[01:48:00] Speaker 12:
And so we know, at least for the suspension clause that

[01:48:04] Speaker 12:
Guantanamo is different from many other parts of the world.

[01:48:07] Speaker 12:
We don't know how the court will view if it ever has an opportunity to decide whether the due process clause should be viewed in the same way as the suspension clause.

[01:48:15] Speaker 12:
Those are hard questions.

[01:48:16] Speaker 12:
Reasonable minds can disagree.

[01:48:17] Speaker 12:
They're complicated questions.

[01:48:19] Speaker 12:
We think the court should avoid answering them if it can.

[01:48:21] Speaker 06:
I have your point.

[01:48:24] Speaker 11:
But Ms.

[01:48:24] Speaker 11:
Harrington, even your

[01:48:26] Speaker 11:
argument for constitutional avoidance requires a constitutional determination.

[01:48:31] Speaker 11:
I mean, your argument that we should avoid the constitutional question is because the standards are the same.

[01:48:37] Speaker 12:
No, true.

[01:48:38] Speaker 12:
I conceded earlier, there's no way to avoid making constitutional rulings in this case.

[01:48:42] Speaker 12:
His claims are constitutional, right?

[01:48:44] Speaker 12:
Even if you revert to the old way of saying, well, we're not going to decide if it applies because if it applies, you'll be satisfied.

[01:48:50] Speaker 12:
Those are constitutional holdings, right?

[01:48:52] Speaker 12:
about how those protections would apply in particular cases.

[01:48:56] Speaker 13:
And you're not asking us to make that so that Judge Rao outlined two possible rulings which she said both of which implicate the Constitution one due process doesn't apply or

[01:49:08] Speaker 13:
the suspension clause gets you as much as due process and therefore don't reach the applicability of the due process clause.

[01:49:16] Speaker 13:
And I guess the third way, maybe you're referring to this as the old way, is to say, assuming it would apply, nothing that happened in this particular case would implicate any potential delta between due process and the suspension clause.

[01:49:30] Speaker 13:
And therefore,

[01:49:32] Speaker 13:
you know, no harm no foul, we're not going to reach any constitutional question except in this kind of hypothetical way.

[01:49:38] Speaker 13:
You're not asking us to do that here.

[01:49:40] Speaker 12:
So we would be fine, of course, with the court doing that.

[01:49:43] Speaker 12:
I guess our assumption has been because the court is sitting on bank, it would want to do a little bit more than that, more than the sort of the most case specific results it could reach.

[01:49:52] Speaker 12:
But certainly we wouldn't resist that result.

[01:49:54] Speaker 12:
And we think that's an even more sort of small c conservative way to approach these difficult questions.

[01:50:00] Speaker 13:
On the middle one the you know the due process at least for for habeas petitioners at Guantanamo the suspension clause affords them as much process.

[01:50:11] Speaker 13:
That's not what the panel thought, and that was part of their sense of the propriety of reaching the your first framing due process cost doesn't apply.

[01:50:22] Speaker 13:
What's the strongest logic that you I know you've been over this ground a lot but just that, you know, there isn't a case on that.

[01:50:28] Speaker 13:
And is it that both the suspension clause and the due process clause have roots in the common law or like going forward to the extent that we do have a role as a court to give guidance to the district courts who are really in the trenches here.

[01:50:44] Speaker 13:
You know, could we rule that, as you said, you know, rather than just saying oh the case management order is full of robust protections but actually that in this context the suspension clause gives as much if not more than the than the Nebraska what's what's the source or logic or thinking for that.

[01:51:06] Speaker 12:
I mean, I don't mean to this, I don't mean this as a cop out, it's all context specific, right?

[01:51:10] Speaker 12:
And so the, as I've said, the protections that are provided by habeas in this context are quite a bit more robust than might be provided in a different sort of context because, and this court sort of went into this in Bumeria and the court is reviewing an executive determination, detention rather than another court's determination.

[01:51:27] Speaker 12:
So you haven't had a neutral decision maker.

[01:51:29] Speaker 12:
That's why it's de novo review.

[01:51:31] Speaker 12:
I mean, de novo review in a habeas

[01:51:33] Speaker 12:
Context is pretty unusual, to say the least.

[01:51:36] Speaker 12:
And so I think what you could say is the suspension clause requires robust protections that are meant to ensure a meaningful opportunity to review.

[01:51:45] Speaker 12:
That's the same thing that the due process clause would require.

[01:51:48] Speaker 12:
We think it wouldn't require anything more in this case.

[01:51:51] Speaker 12:
And you could say to the district courts if you wanted to, we think the case management order adequately reflects or appropriately reflects what the Constitution would require in this case.

[01:51:59] Speaker 12:
And you should adhere to it or continue to adhere to it.

[01:52:02] Speaker 12:
I'm not sure that's necessary because I don't know of any judges that are trying to depart from the case management order.

[01:52:07] Speaker 12:
But if you're asking sort of what you could say to give direction, I think that's one thing you could say.

[01:52:14] Speaker 01:
Let me make sure my colleagues don't have additional questions for you.

[01:52:18] Speaker 01:
I have a question.

[01:52:18] Speaker 00:
Isn't it the case that the government has taken the position that there is some information about sources of hearsay statements

[01:52:33] Speaker 00:
that's so sensitive that they're not even providing it to the court and they have redacted it even for the district court for its in-camera review and didn't that happen in this case?

[01:52:51] Speaker 12:
I believe there may have been some instances of that, yes.

[01:52:56] Speaker 00:
Why isn't that a procedural due process problem in the sense that

[01:53:03] Speaker 00:
We have a situation where not only there was no adversarial presentation, but there was information that could be relevant to reliability that the court didn't even see.

[01:53:24] Speaker 12:
So what I would say is that before we could do that, we would have to convince the district court that it was an appropriate thing for us to do.

[01:53:31] Speaker 12:
And part of that inquiry is whether it would be necessary for the other side to see it to provide a meaningful opportunity to review.

[01:53:39] Speaker 12:
And obviously I can't talk about specifics, but where that has happened, it's because we have convinced the district court that that was an appropriate thing to do.

[01:53:46] Speaker 12:
And so I think, you know, that's a safeguard and you can look at the record.

[01:53:50] Speaker 00:
And when you convinced the district court of that, you did that in an ex parte proceeding where the petitioners council

[01:54:00] Speaker 00:
couldn't rebut all of your arguments and justifications, right?

[01:54:06] Speaker 12:
I mean, that's right.

[01:54:06] Speaker 12:
And that's I mean, that's true of any proceeding that involves classified information or sensitive national security information.

[01:54:12] Speaker 12:
There is always, you know, a little bit of a give and take where you have to balance the detainees interests with the government's compelling interest in protecting national security and sources and methods that are highly sensitive.

[01:54:24] Speaker 12:
And so I think, you know, the district courts who oversee these cases are quite skilled at making these determinations.

[01:54:30] Speaker 12:
They do not make it easy on the government, or should they?

[01:54:32] Speaker 12:
And so it's hard.

[01:54:34] Speaker 02:
With that same position, there's stuff we just can't even disclose to the district court applied to exculpatory information.

[01:54:43] Speaker 12:
I don't know the answer to that, Judge Millett, and I apologize for that.

[01:54:46] Speaker 02:
Isn't that pretty important?

[01:54:49] Speaker 12:
That would be

[01:54:51] Speaker 02:
That would be important, but I district court ever rationally say that it's okay.

[01:54:58] Speaker 02:
We don't need to know about it with respect to exculpatory information.

[01:55:03] Speaker 12:
Probably not.

[01:55:04] Speaker 12:
I mean, you know, I think.

[01:55:06] Speaker 02:
OK, but then under our Constitution, sort of in the criminal context, Brady Giglio, our equivalent, the line between reliability and exculpation is if it's there at all, it's hair thin.

[01:55:21] Speaker 02:
And so to the extent this reliability, these reliability issues there on exculpation, for example, your

[01:55:29] Speaker 02:
John Doe, Jane Doe, that's all you can reveal.

[01:55:33] Speaker 02:
If it turns out, if you revealed it, it was the person who was the sworn enemy of detainee X. And when they were together in Pick Your Country, they had some tiff over a business dealing or a romantic relationship.

[01:55:52] Speaker 02:
And that person swore, I'm going to get you, I'm going to destroy you.

[01:55:56] Speaker 02:
But that's never disclosed because that would disclose

[01:55:59] Speaker 02:
identity of the source.

[01:56:01] Speaker 02:
How can this process be remotely fair under your view of the suspension, what the suspension clause allows?

[01:56:10] Speaker 12:
Excuse me, when we have evidence like that, that we can't reveal to clear counsel or the petitioner, we show it to the judge.

[01:56:16] Speaker 02:
No, I'm talking about, say you say we can't show that to you, district court either.

[01:56:20] Speaker 12:
So I'm not aware of any such evidence in this case.

[01:56:23] Speaker 02:
And so it's a little bit hard to talk about.

[01:56:26] Speaker 02:
As you said, we've taken this on bag, right?

[01:56:30] Speaker 02:
And so if you're not sure whether there's ever been exculpatory evidence, it hasn't even been shown to a district court judge.

[01:56:39] Speaker 02:
And if the line between exculpation and reliability is

[01:56:45] Speaker 02:
It's quite difficult to police and so it's going to be very hard even for district court if you say it's not a sculpatory information it's just reliability information that we can't show to you district court judge, and we can't show to you because and you give your national security explanation.

[01:56:59] Speaker 02:
What's how's a district court supposed to know that this sector the linchpin.

[01:57:04] Speaker 12:
So I don't think we don't draw a distinction between sort of reliability information and exculpatory information.

[01:57:09] Speaker 12:
Reliability information is a type of exculpatory information.

[01:57:11] Speaker 12:
So I take that point, and there's a thumb on the scale, obviously, or an entire body on the scale of releasing that information, and you can do that.

[01:57:20] Speaker 02:
I mean, it's- But you said there's times you don't even show that to the district court judge.

[01:57:24] Speaker 02:
That's what you said to Judge Wilkins.

[01:57:25] Speaker 02:
There's reliability information, which you just said is equivalent to, is not equivalent to, is exculpatory information.

[01:57:32] Speaker 02:
And we're not showing it to anybody.

[01:57:34] Speaker 12:
I didn't, or at least I didn't intend to characterize the type of information that wouldn't be shown to a judge, but it would be something like something source identifying or method identifying.

[01:57:45] Speaker 02:
But again, we have to give... Source identifying can be hugely relevant to reliability and explanation.

[01:57:52] Speaker 12:
Okay, but we have to convince the judge that it's okay to do that.

[01:57:55] Speaker 12:
And oftentimes it'll be because we've provided substitute information, because it's cumulative, something like that.

[01:58:00] Speaker 12:
You know, I hear what you're saying and it's a legitimate concern and it's a little bit hard for me to meet you where you are.

[01:58:07] Speaker 12:
without being able to talk about specifics, but I would just say it's not, the judge just doesn't take us on.

[01:58:12] Speaker 02:
But you couldn't even talk to me about with specifics, because I mean, if you can't show it to the district court judge, you couldn't talk to us about it either, right?

[01:58:19] Speaker 02:
There's just this whole secret evidence thing that might very well be exculpatory, exculpatory that no one gets to see, and yet we're supposed to decide decades-long detention decisions.

[01:58:32] Speaker 02:
And that's all okay under the suspension clause in your view.

[01:58:35] Speaker 02:
And you don't think that we're supposed to conclude the due process wouldn't require at least showing it to the district court judge.

[01:58:41] Speaker 02:
That's your question.

[01:58:42] Speaker 12:
No, I mean, I think the premise of your question was that it's part of the information that isn't even shared for the judge will play a larger role than it has ever played.

[01:58:51] Speaker 12:
And if we were in a closed setting, I couldn't show you the things that we wouldn't share to the district court judge, but I could explain to you what our reasons were for keeping them back

[01:58:59] Speaker 12:
And they might include reasons such as it's cumulative.

[01:59:02] Speaker 12:
We've provided a less, you know, we've provided substitutions such as an alias, you know, or something like that.

[01:59:08] Speaker 12:
And so I don't, I'm not trying to dodge your question, but it's hard for me to be more specific.

[01:59:13] Speaker 12:
You have access to the ex parte record.

[01:59:15] Speaker 12:
And so you'll be able to sort of maybe fill in the details.

[01:59:17] Speaker 02:
I'm talking about the legal principle.

[01:59:19] Speaker 02:
I'm not talking about the record in this case, the legal principle that you want us, when you say the suspension clause gets you all the way there.

[01:59:24] Speaker 02:
If we thought due process.

[01:59:28] Speaker 02:
might not allow you to hide even from the district court judge and sculpatory information, then that would be a difference.

[01:59:35] Speaker 12:
Yeah, but I don't think you could make that determination on that general level.

[01:59:40] Speaker 12:
I think what you would say is that you process clause requires a balancing of the detainees interests with the government's interest and making sure that anything that's held back is not necessary to provide a meaningful opportunity for meaningful review, excuse me.

[01:59:54] Speaker 12:
And that's the same sort of balancing that happens under the suspension clause.

[01:59:58] Speaker 12:
And so I don't think there's anything in the nature of those two constitutional rights as they apply in this context that would lead anyone to believe that they would lead to different results with respect to this issue or any other issue about how these proceedings are conducted.

[02:00:10] Speaker 01:
Let me ask my colleagues if they have additional questions for you, Ms.

[02:00:15] Speaker 01:
Harrington.

[02:00:19] Speaker 01:
Thank you for your argument.

[02:00:20] Speaker 01:
Thank you.

[02:00:22] Speaker 01:
Mr. Zients, we'll start by giving you three minutes for rebuttal.

[02:00:25] Speaker 09:
Thank you, Your Honor.

[02:00:26] Speaker 09:
I appreciate that.

[02:00:27] Speaker 09:
A few points.

[02:00:30] Speaker 09:
One, I do want to clarify exactly what we're asking for.

[02:00:35] Speaker 09:
Mr. Hila has all along asked for an order of release, period, full stop.

[02:00:40] Speaker 09:
And I think what's happened after we filed our opening brief is there was a PRB determination.

[02:00:46] Speaker 09:
The PRB determination concluded that continued detention is not necessary.

[02:00:50] Speaker 09:
It had the caveat that the government felt that there were security interests

[02:00:55] Speaker 09:
assurances that should still be in place.

[02:00:58] Speaker 09:
So I think when I said that we'd be happy with an order of conditional release, what I should have said is at a minimum, there should be an order of conditional release.

[02:01:06] Speaker 09:
There can't possibly be a basis for the government to continue detaining someone when it's decided that that is not necessary for security if all of the government's own conditions have been met.

[02:01:20] Speaker 09:
But certainly, to Judge Millett's point, if there were a determination, and we think there should be a determination,

[02:01:25] Speaker 09:
that Mr. Al-Hila was never part of or a substantial supporter of Al-Qaeda or associated forces.

[02:01:32] Speaker 09:
He should just be entitled to release.

[02:01:33] Speaker 09:
Our argument, even on substantive due process, is that the Periodic Review Board decision has simplified things a bit, but we think the government is wrong that there is any remaining security threat at all.

[02:01:45] Speaker 09:
So just to be clear about our position, it's really at the minimum there should be that conditional release.

[02:01:50] Speaker 09:
We are still asking for release.

[02:01:53] Speaker 09:
The second point I wanted to make,

[02:01:56] Speaker 09:
Sorry, I see Judge Mullight, you may be asking a question, but you're on mute.

[02:01:59] Speaker 02:
Sorry.

[02:01:59] Speaker 02:
Thank you.

[02:02:01] Speaker 02:
Same assume mine.

[02:02:05] Speaker 02:
You don't get to ask this court for that.

[02:02:08] Speaker 02:
What we would ask for is a determination on your due process question, and then a remand, and then a whole new proceeding with the district court, and then if there's an end result of that.

[02:02:18] Speaker 02:
That's what we're talking about here.

[02:02:21] Speaker 09:
Right, Your Honor.

[02:02:21] Speaker 09:
And I think we go back to the fundamental point of the interest that Mr. Alhila has in having his liberty restored as soon as possible after 19 years of detention.

[02:02:32] Speaker 09:
So yes, I think we're asking this court for an order that Mr. Alhila has due process rights that have been violated.

[02:02:38] Speaker 09:
We think on this record, the court can remand with instructions to grant the writ.

[02:02:43] Speaker 09:
and to order his release, at least with the conditions that the government has said would make him no longer a necessity to detain.

[02:02:52] Speaker 09:
Whether other things would still be open on a remand, I think is a different question.

[02:02:58] Speaker 09:
Order his release where?

[02:03:03] Speaker 09:
Your Honor, I think that it would just be to order his release from the government, which has told us that it takes court orders of release seriously.

[02:03:10] Speaker 09:
it would be on the government to find a place for him to go.

[02:03:14] Speaker 09:
It is, you know, the government has imposed its own restrictions.

[02:03:17] Speaker 09:
It has said that Congress has passed a law regarding Yemen.

[02:03:21] Speaker 09:
Mr. Al-Hila has, you know, recently, you know, Mr. Al-Hila's counsel informed the State Department that Mr. Al-Hila's counsel was told by family members

[02:03:34] Speaker 09:
of Mr. Al Gheela that he approached the foreign ministries of Oman and Qatar, which would be willing to take Mr. Al Gheela.

[02:03:42] Speaker 09:
Mr. Al Gheela's counsel told the State Department, we have no idea what the government is doing with that information.

[02:03:47] Speaker 09:
If it's looking into it or not, this sort of goes to why there should be a court order here.

[02:03:53] Speaker 09:
And I think that segues into the second point that I wanted to make.

[02:03:59] Speaker 09:
which is the government tells us they take court orders seriously.

[02:04:02] Speaker 09:
What we know, what the government has said today is whenever there's been a court order to release someone, they find a way to do it.

[02:04:08] Speaker 09:
They find a way to release it.

[02:04:09] Speaker 09:
The other thing we know is that when someone is cleared by the PRB or a process like the PRB, nothing like that is assured.

[02:04:19] Speaker 09:
We know that Mr. Albahani has been in detention for 10 years.

[02:04:22] Speaker 09:
Ms.

[02:04:22] Speaker 09:
Harrington says that maybe Mr. Alquila's constitutional claim

[02:04:25] Speaker 09:
would be different if after he's been clear he's still in detention for 10 years.

[02:04:30] Speaker 09:
He's been in detention for 19 years, and we really don't think we should have to wait.

[02:04:34] Speaker 09:
He should have to wait 10 more years, and then maybe somehow he has a constitutional claim.

[02:04:40] Speaker 09:
I had two really short points, Chief Judge Srinivasan, although I do see I'm over the three minutes.

[02:04:46] Speaker 01:
You can go ahead and make them quickly.

[02:04:47] Speaker 01:
Thank you.

[02:04:47] Speaker 09:
Thank you.

[02:04:48] Speaker 09:
I appreciate that.

[02:04:50] Speaker 09:
The one point I would make on procedural due process,

[02:04:55] Speaker 09:
Ms.

[02:04:55] Speaker 09:
Harrington said that their view is that the suspension clause is at least as robust as due process.

[02:05:01] Speaker 09:
The only reason the government is able to take that position is because they've defined how robust due process is to such a bare minimum that looks nothing like what is recognizable as due process.

[02:05:13] Speaker 09:
And I don't take issue at all with Ms.

[02:05:16] Speaker 09:
Harrington's suggestion that the Matthews v. Eldridge balancing analysis should be done holistically rather than piece by piece.

[02:05:22] Speaker 09:
I think this case shows you why

[02:05:25] Speaker 09:
This process here is so flawed, as I think Judge Wilkins was alluding to.

[02:05:29] Speaker 09:
This case is all about reliability and credibility.

[02:05:32] Speaker 09:
It is not about someone was picked up at Tora Bora carrying an AK-47.

[02:05:37] Speaker 09:
This is all about reliability.

[02:05:40] Speaker 09:
This is all about credibility.

[02:05:42] Speaker 09:
And the hearsay issues, the ex parte issues, they all go to that.

[02:05:47] Speaker 09:
Very final, since I really haven't had a chance to say anything about the constitutional question of

[02:05:52] Speaker 09:
Does the due process clause apply?

[02:05:54] Speaker 09:
I just very quickly would point out, I believe Ms.

[02:05:57] Speaker 09:
Harrington said that if the court answers that question, you would have to grapple with the relationship between Boumediene and Isentraker.

[02:06:04] Speaker 09:
Our view is the relationship is dictated by Boumediene.

[02:06:08] Speaker 09:
It interprets Isentraker.

[02:06:10] Speaker 09:
It tells us what Isentraker holds, that Isentraker is consistent with the functional approach to the application of the Constitution that Boumediene requires at Guantanamo Bay.

[02:06:21] Speaker 09:
What about Verduga?

[02:06:23] Speaker 09:
Verdugo, Your Honor, I think, you know, you never even cited Verdugo in your brief, did you?

[02:06:30] Speaker 09:
Your Honor, I'm not.

[02:06:32] Speaker 09:
You may be right that we didn't cite Verdugo in our brief.

[02:06:35] Speaker 09:
There's a case about the Fourth Amendment.

[02:06:36] Speaker 09:
There's a statement about about the applicability of the Fifth Amendment.

[02:06:41] Speaker 09:
And even even if we were to accept the view of Eisen Träger, the sort of formalistic view that I think Boumediene rejected,

[02:06:49] Speaker 09:
If you accept the view that under Eisen Trigger and under that sentence in Ferdugo, the due process clause does not apply outside of the territory of the United States, that doesn't answer the question in this case, which is what for constitutional purposes is the territory of the United States?

[02:07:07] Speaker 09:
And what Boumediene holds is that Guantanamo Bay is de facto the sovereign territory of the United States.

[02:07:14] Speaker 09:
the line of the insular cases and probably more anomalous plot.

[02:07:18] Speaker 09:
What then Judge Kavanaugh said in his opinion in Albalul that for constitutional purposes, Guantanamo Bay is akin to Puerto Rico.

[02:07:26] Speaker 06:
And there's another Supreme Court case saying that whether a particular area is de facto or de jure sovereign territory of the United States is not for the courts to decide.

[02:07:39] Speaker 06:
It's a political question.

[02:07:40] Speaker 09:
Your honor, what Boumediene says is that it is not for the course to decide to contradict the government's position that something is or is not under the de jure sovereignty of the United States.

[02:07:53] Speaker 09:
Boumediene certainly does not disclaim the ability to decide that de facto and for purposes of the application of the Constitution, something is under such complete and indefinite control of the United States.

[02:08:05] Speaker 06:
I have your argument.

[02:08:08] Speaker 07:
Thank you.

[02:08:08] Speaker 07:
Okay.

[02:08:08] Speaker 07:
Thank you, your honor.

[02:08:09] Speaker 07:
Mr. Zayas, if we read Bumedi in, as you suggest, to basically hold that Guantanamo Bay is Florida or Virginia, are there other clauses the Bill of Rights that would apply in Guantanamo Bay?

[02:08:29] Speaker 08:
Free speech, free exercise?

[02:08:31] Speaker 09:
Your honor, to be clear, we're not reading Boumediene to say that the Guantanamo Bay is like Florida or Virginia.

[02:08:38] Speaker 09:
I think then Judge Kavanaugh, the analogy he drew, it's closest to Puerto Rico.

[02:08:46] Speaker 09:
And what Boumediene relies on is the line of the insular cases.

[02:08:49] Speaker 09:
And it's case by case.

[02:08:51] Speaker 09:
It is based on the impracticable and anomalous standard.

[02:08:54] Speaker 09:
And what we know from that standard, from the insular cases, what the Supreme Court has said, the very core that is always run in territories like this is the right to be free from deprivation of liberty without due process of law.

[02:09:07] Speaker 09:
I can give an example of something that might not apply, which is the warrant clause of the Fourth Amendment, where that may be impractical because there wouldn't be a magistrate to go to on Guantanamo Bay.

[02:09:16] Speaker 09:
And otherwise, I think it would be case by case.

[02:09:22] Speaker 09:
Your Honor,

[02:09:24] Speaker 09:
I would just close by noting that, you know, Ms.

[02:09:27] Speaker 09:
Harrington said at one point that Mr. Alhila's detention is not indefinite.

[02:09:32] Speaker 09:
We just don't know how long it will last.

[02:09:35] Speaker 09:
Respectfully, I think that is indefinite detention.

[02:09:38] Speaker 09:
Mr. Alhila has been in detention for 19 years.

[02:09:40] Speaker 09:
We don't know.

[02:09:41] Speaker 09:
The government won't tell us how long it will continue.

[02:09:43] Speaker 09:
And we would respectfully urge the court to reverse and instruct the district court to grant the writ.

[02:09:50] Speaker 01:
Thank you, counsel.

[02:09:51] Speaker 01:
Thank you to both counsel.

[02:09:53] Speaker 01:
We'll take this case under submission.