chevron-down Created with Sketch Beta.
July 06, 2021

ABA brief asks appeals court to say Guantanamo detainee entitled to due process rights

CHICAGO, July 6, 2021 — The American Bar Association filed an amicus brief on Friday with the U.S. Court of Appeals for the District of Columbia Circuit, asking the judges to declare that a longtime detainee at the U.S. facility at Guantanamo Bay is entitled to constitutional due process rights.

The case involves detainee Abdulsalam Ali Abdulrahman Al-Hela, a prominent Yemeni businessman and tribal sheikh apprehended in Egypt in 2002 by American forces and transferred to the CIA for interrogation. Media reports indicate he has been detained at Guantanamo Bay since 2004, with the U.S. government asserting that he maintained contact with several known and suspected al-Qaeda affiliates.

His case raises the question of whether nonresident aliens without presence or property in the United States have due process rights under the U.S. Constitution’s Fifth Amendment. In 2008, the U.S. Supreme Court ruled that under the Constitution’s habeas corpus Suspension Clause, nonresident aliens detained at Guantanamo Bay have certain rights, including “a meaningful opportunity” to challenge the basis for their detention. Due process rights mandate that legal proceedings follow rules and principles that have been established in a system of jurisprudence for the enforcement and protection of private rights.

The ABA brief said the association’s longstanding interest in the fairness of proceedings that result in detention has led it to consistently oppose prolonged detentions without due process. It also pointed out that the 2008 Supreme Court decision “made clear that Guantanamo should be treated as de facto U.S. territory for purposes of constitutional adjudication.”

“The Constitution’s protection of liberty secures freedom from governmental imprisonment absent adequate justification and fair process,” the brief said. “The Due Process Clause requires the government to provide basic procedural safeguards before depriving an individual of physical liberty in any kind of proceeding — civil or criminal — and particularly before detaining someone for an extended or indefinite period of time. Fundamental fairness demands that those protections extend to persons (whether citizens or not) who have been detained for years at Guantanamo.”

The appeals court will hear the case on Sept. 30. The ABA brief in Abdulsalam Ali Abdulrahman Al-Hela, Detainee, Camp Delta v. Joseph R. Biden, Jr., President of the United States is available here. The law firm of Wilmer Cutler Pickering Hale and Dorr LLP filed the brief pro bono on behalf of the ABA.

The ABA is the largest voluntary association of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement online. Follow the latest ABA news at and on Twitter @ABANews.