Al-Hela’s Substantial Support Holding Escapes Review, But It’s Still Wrong

[Jake Romm is currently a legal fellow at Reprieve US where he works on Guantanamo Bay and the detention of foreign nationals in North East Syria. He is publishing this piece in his personal capacity and that this piece should in no way be taken to reflect the official position of his employer or any other entity. At Reprieve US, the author works on a team representing a number of Guantanamo detainees—thought not Al Hela—including in habeas litigation.]

In August 2020, the D.C. Circuit Court handed down its ruling in the Guantanamo habeas case, Al-Hela v. Trump. The decision has been widely criticized, as in Jonathan Hafetz’s review in Just Security, primarily for its categorical denial of constitutional Due Process protections to Guantanamo detainees. Fortunately, last week the D.C. Circuit granted review en-banc in Al-Hela, providing the Court with an opportunity to fix a seriously flawed decision. Despite the welcome news, however, the Court will only be rehearing the Al Hela’s due process claims. While  the denial of due process is the most important piece of the decision from the standpoint of detainees’ immediate litigation concerns, there is another part of the decision that remains intact and will not be addressed in the en-banc review that is equally deserving of criticism and may have significant implications for legal protections in the so-called “War on Terror” moving forward. (I should note at the outset that I am currently a Legal Fellow at Reprieve US, where I work on a team representing a number of Guantanamo detainees—thought not Al Hela—including in habeas litigation).

The section in question is a short passage in which the Court asserts that “support for covered terrorist organizations before September 11 is unquestionably a proper basis for detention whether or not related to the attacks.” While it is true that in certain limited circumstances pre-9/11 activities could serve as a basis for detention, the sweeping language used by the Al-Hela Court fails to temporally circumscribe substantial support, potentially creating a situation in which support legally offered at Time-1 makes a person detainable at Time-2. As we shall see, however, the Court’s assertion here is an inaccurate statement of relevant precedent. Even if it were a correct statement of relevant precedent, this section as written encompasses such a potentially broad swath of activities that, if applied, it would constitute an unconstitutional violation of the Ex-Post Facto clause.

Abdulsalam Ali Abdulrahman Al Hela is a Yemeni citizen, businessman, and “tribal sheikh.” According to the US Government and the D.C. Circuit, Al Hela assisted the Yemeni government’s Political Security Organization throughout the 1990’s and early 2000’s with the “deportation of foreign Arabs who settled in Yemen after the conclusion of the Soviet-Afghan War.” During this time, the allegations continue, Al Hela maintained contacts with Al Qaeda and associated forces and facilitated fighters travel within and from Yemen in furtherance of attacks against US forces. In 2002, Al Hela “disappeared during a business trip to Egypt” and was turned over to US forces, who have detained him in Guantanamo Bay since 2004. While the full nature of Al Hela’s pre and post-9/11 activities are behind the wall of classification, it is clear from the arguments in the case that Al Hela is being detained, at least in part, on the basis of his pre-9/11 activities, specifically, on the basis of providing “substantial support” to Al Qaeda.

Leaving aside the question of whether substantial support can ever constitute an independent basis for long-term detention (and there are compelling reasons to believe that it cannot), let’s revisit the language the Court uses to discuss the government’s detention authority in Al-Hela. The Court dismisses Al Hela’s argument that, per the 2012 NDAA and the 2001 AUMF “support offered before September 11 justifies detention only if directly related to the attacks” by writing, with minimal justification, that “support for covered terrorist organizations before September 11 is unquestionably a proper basis for detention whether or not related to the attacks.” As evidence for this proposition, the Court cites, without elaboration, the AUMF itself, and two prior circuit rulings— Khairkhwa v. Obama and Al Bihani v. Obama— which, per the Court, “sustained detention of terrorist organization members based on pre-September 11 conduct that was not directly related to executing the attacks.” There’s a problem here, however—neither Khairkhwa nor Al Bihani actually support this proposition.

In the former case, Khairkhwa was detained on the basis of being of the government’s allegation that he was a high ranking member of Taliban. While the D.C. District Court detailed Khairkhwa’s pre-9/11 activities in its opinion, it also significantly found that Petitioner “continued to operate within the formal Taliban command structure after Operation Enduring Freedom began in early October 2001…provided support to Taliban military forces…and in early November 2001 [petitioner] traveled from Herat to the Taliban-controlled Kandahar province in a convoy of vehicles full of weapons and that he turned over the weapons to a local official.” Thus, the Court ruled that the “evidence…establishes that Khairulla Khairkhwa was at least more likely than not a part of the Taliban forces” and is therefore detainable. In light of the Government’s evidence that Khairkhwa was a high ranking member of the Taliban at the time of his capture in 2002, the question of whether Khairkhwa was detainable on the basis of his pre-9/11 activities alone was never reached by the Court. Indeed, based on a plain reading of the decision, it seems that the discussion of Khairkhwa’s pre-9/11 activities was used only to establish the Government’s argument that Khairkhwa was a member of the Taliban at the time of his capture.

Similarly, Al Bihani was determined to have been a member of the 55^th Arab Brigade (which the Court determined to be an “associated force” under the AUMF) at the time of his capture in late 2001. Just like Khairkhwa, Al Bihani’s pre-9/11 activities are detailed in the Court’s decision as a means of establishing his membership in an associated force at the time of his capture, not as an independent basis for his detention.

Thus, the matter is far from ‘unquestionable.’ Indeed, it appears as if the question of the government’s detention authority with respect to substantial support offered prior to 9/11 unrelated to any belligerency has never been squarely addressed. The en-banc review offers the Circuit an opportunity to either develop this argument further or simply strike down this portion of the opinion.

But let’s assume for the sake of argument that the Al Hela opinion correctly stated prior precedent. Even if this were the case, the ruling should still be overturned as a violation of the Constitution’s Ex-Post Facto Clause. As an initial matter, the government has long conceded that the Ex Post Facto Clause applies at Guantánamo. In an en-banc rehearing of Al Bahlul v. United States, then Judge Kavanaugh wrote in concurrence that “[a]s the Government concedes, the Boumediene analysis leads inexorably to the conclusion that the ex post facto right applies at Guantánamo.” Additionally, as the Court noted in Al Hela, five judges of the Al Bahlul en banc panel “would hold that the Ex Post Facto Clause applied at Guantanamo under Boumediene.” As the Court noted in Al Bahlul, “The phrase ex post facto law was a term of art with an established meaning at the time of the framing.” Our understanding of the Founders’ meaning (insofar as one cares about such a thing) of the Ex-Post Facto Clause stems from Justice Chase’s opinion in Calder v. Bull:

1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. Every law that changes the punishment, and inflicts a greater punishment **389 *18 than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

The Al-Hela Court’s assertion that a person may be detainable purely on the basis of pre-9/11 conduct is a clear example of the 1^st type of Ex Post Facto Clause violation as articulated by Justice Chase.

What makes the errors in the Al Hela opinion even more striking is that the Ex Post Facto question as it pertains to material support (but not substantial support, though as Steve Vladeck has written, the D.C. Circuit has previously acknowledged that material support includes substantial support) has already come before the D.C. Circuit Court. In Hamdan v. United States (“Hamdan II”), the Petitioner was appealing his conviction by Military Commission under the Military Commissions Act of 2006 (“MCA”). Hamdan argued that his conviction for “material support” presented an Ex Post Facto Clause violation because “material support” was not an independently cognizable war crime at the time the relevant conduct took place (between 1996 and 2001). The D.C. Circuit agreed, stating, “we interpret the Military Commissions Act of 2006 not to authorize retroactive prosecution of crimes that were not prohibited as war crimes triable by military commission under U.S. law at the time the conduct occurred… the international law of war proscribed a variety of war crimes, including forms of terrorism. At that time, however, the international law of war did not proscribe material support for terrorism as a war crime.” Indeed, the Court plainly stated that there was no support in international law whatsoever for the proposition that “material support” was an independently cognizable war crime.

One might come back and ask, “what about Al Bahlul, inwhich the Court overturned Hamdan II?” The Al Bahlul Court did indeed overturn Hamdan II, but on other grounds, and it crucially did not overturn the portion of the decision relating to material support. Just like the Hamdan II Court, the Al Bahlul Court held that “it was a plain ex post facto violation—again, assuming without deciding that the protection of the Ex Post Facto Clause extends to Bahlul—to try Bahlul by military commission” for the crime of material support.

One way to distinguish Hamdan II from Al Hela is that Hamdan II was about challenging a conviction in a military tribunal, whereas Al Hela is petitioning for a writ of habeas corpus. But the argument against detaining someone purely on the basis of pre-9/11 substantial support applies with even more force in Al Hela. As the D.C. Circuit stated in Brogsdale v. Barry, “the threshold for establishing a constitutional violation is clearly lower for … pretrial detainees” than for those convicted of crime, who may bring conditions claims only under the Eighth Amendment.”

There are frightening implications to the Al Hela Court’s ruling that extend far beyond their application to Al Hela himself. Specifically, the Court’s failure to in any way distinguish between pre and post-9/11 support, or to otherwise temporally circumscribe the government’s detention authority with respect to pre-9/11 substantial support creates a situation in which groups or individuals will have no way of knowing whether providing substantial support to an armed group in Time-1, where the recipient of the support is neither engaged in hostilities against the United States or its coalition partners nor supporting groups that are directly engaged in such hostilities, will make them detainable at Time-2 when the armed group does take up arms against the U.S. or support a group engaged in hostilities with the U.S. That is, if ‘substantial support’ is not in some way time-bound, then no one in the world can reasonably be considered to be on notice as to whether their presently legal actions will one day make them indefinitely detainable. Detention based on substantial support, so understood, would necessarily be punitive rather than preventative in nature—that is, based on prior actions as opposed to a determination of ongoing or future dangerousness—and would thus run afoul of the narrow purpose of detention long recognized by the Supreme Court as the sole basis of law-of-war detention.

To underscore the error of the Al Hela passage, we can see that if the en-banc review allows this language to stand, then certain absurd conclusions must follow, conclusions that Congress must have been keen to avoid when it stated that it did not intend the MCA to apply retroactively. If substantial support to terrorist groups can be the basis for detention even if such support was offered prior to 9/11, then numerous U.S. government officials can, theoretically, be indefinitely detained in Guantanamo Bay on the basis of the U.S. Government’s policy of providing material support to certain Afghan mujahideen fighters during the Soviet war in Afghanistan. Substantial support as a basis for detention or as a criminal charge must be time-bound in some respect or else the complex, fluid nature of the various allegiances and support networks that make up the war on terror will create a situation in which support to certain groups is at one time the official policy of the U.S. government and also a basis for indefinite detention at a later date.