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1 1 (November 2, 2021)

handle is hein.crs/goveesu0001 and id is 1 raw text is: Congressional ______ *Research Service 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 Congressional Research Service https://crsreports.congress.gov LSB10654 CRS Legal Sidebar Prepared for Members and Committees of Congress

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