Judge Randolph’s majority opinion asserts that the district judge’s airy allusions to “constitutional limits” on detention and “the fundamental right of liberty” do not amount to law that authorizes a court to order an alien held outside the U.S. released into the U.S. To the extent, the majority charitably suggests, that Judge Urbina was referring to the Fifth Amendment’s due process clause, that won’t do: “[T]he due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.”
Very interesting: the court here drops a footnote: “The Guantanamo Naval Base is not part of the sovereign territory of the United States. Congress so determined in in the Detainee Treatment Act of 2005[.]… The Immigration and Nationality Act … also does not treat Guantanamo as part of the United States.”
This, folks, is the line of scrimmage for the coming battle. In Boumediene, the Supreme Court held that alien enemy combatants held in Gitmo somehow had a federal constitutional right to habeas corpus (i.e., civilian judicial review of the lawfulness of their detention). Key to that conclusion was that the detainees were held at Gitmo, where the United States exercises de facto control, which, Justice Kennedy reasoned, extended both the Constitution (which generally does not apply outside the U.S.) and judicial oversight. So, the question naturally arises, was Justice Kennedy’s rationale limited to habeas corpus (the only right at issue in the Boumediene case) or did it extend to all rights under the Constitution?
The D.C. Circuit (at least two judges thereof) says it does not apply to the due process clause. I think that’s right — but, of course, I didn’t think the alien combatants had habeas rights either. Rest assured we haven’t heard the last of this.