Due Process Rights for Guantanamo Detainees
November 2, 2021
The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) granted a petition for
rehearing en banc in Al Hela v. Biden, vacating a three-judge panel opinion holding that law-of-war
prisoners detained at the U.S. Naval Station at Guantanamo Bay, Cuba, are not entitled to due process
under the U.S. Constitution. The decision to rehear the case may not necessarily portend good news for
the detainee because the D.C. Circuit has in multiple cases declined to decide the question, at one point
overturning a district court ruling denying that Guantanamo detainees are entitled to constitutional due
process, expressly leaving the question undecided. The D.C. Circuit has preferred instead to avoid the
constitutional question by assuming without deciding that detainees are entitled to such rights but that
typically petitioners have received all of the process that is due. Consequently, it seems likely that the
D.C. Circuit on rehearing Al Hela will be voting on deciding whether Guantanamo detainees have due
process rights, but may not necessarily decide the issue. If the D.C. Circuit determines Al Hela is the
proper vehicle for deciding the due process question, the answer will likely turn on which Supreme Court
precedent the court deems controlling.
Supreme Court Precedent
Johnson v. Eisentrager
Johnson v. Eisentrager involved a group of German enemy aliens held by U.S. forces in Germany after
their conviction by a military commission. The Supreme Court framed the question as follows:
We are here confronted with a decision whose basic premise is that these prisoners are entitled, as
a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To
support that assumption, we must hold that a prisoner of our military authorities is constitutionally
entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United
States; (c) was captured outside of our territory and there held in military custody as a prisoner of
war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for
offenses against laws of war committed outside the United States; (f) and is at all times imprisoned
outside the United States.
The Court answered this question in the negative, explaining that “these prisoners at no relevant time
were within any territory over which the United States is sovereign, and the scenes of their offense, their
