United States Court of Appeals
        FOR THE DISTRICT OF COLUMBIA CIRCUIT



                Filed On: September 17, 2019

                         No. 18-5148

                  KHALID AHMED QASSIM,
                       APPELLANT

                               v.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET
                       AL.,
                    APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:04-cv-01194)


     On Sua Sponte Suggestion for Rehearing En Banc


Before: GARLAND, Chief Judge; HENDERSON***, ROGERS,
TATEL, GRIFFITH, SRINIVASAN, MILLETT**, PILLARD**,
WILKINS, KATSAS*, and RAO***, Circuit Judges

                         ORDER

        Following the issuance of the opinion in this case, a
member of the court suggested sua sponte that the case be
reheard en banc, see D.C. Circuit Handbook of Practice and
Internal Procedures 59 (2018), and a vote was called.
Thereafter, a majority of the judges eligible to participate did
not vote to rehear this case. See Fed. R. App. P. 35(a). Upon
                               2

consideration of the foregoing, it is

       ORDERED that the sua sponte suggestion for
rehearing en banc be denied.

                         Per Curiam

                                        FOR THE COURT:
                                        Mark J. Langer, Clerk

                                   BY: /s/
                                       Ken Meadows
                                       Deputy Clerk


*Circuit Judge Katsas did not participate in this matter.

** A statement by Circuit Judges Millett and Pillard, and
Senior Circuit Judge Edwards, concurring in the denial of
rehearing en banc, is attached.

*** A statement by Circuit Judge Henderson, joined by
Circuit Judge Rao, dissenting from the denial of rehearing
en banc, is attached.
    MILLETT and PILLARD, Circuit Judges, and EDWARDS,
Senior Circuit Judge, concurring in the denial of rehearing en
banc:

     With the greatest respect for our two colleagues who have
dissented from the denial of rehearing en banc, we note that the
court’s opinion explains in detail its consistency with circuit
and Supreme Court precedent, and principles of stare
decisis. Furthermore, it is telling that the United States
Government has not filed a petition for rehearing en banc in
this case voicing any of the concerns that the dissenting opinion
raises.
    KAREN LECRAFT HENDERSON, Circuit Judge, with whom
Circuit Judge RAO joins, dissenting from the denial of
rehearing en banc:

     The panel decision declares that whether the Due Process
Clause of the Fifth Amendment applies to detainees at
Guantanamo Bay is an open question. Qassim v. Trump, 927
F.3d 522, 524 (D.C. Cir. 2019). It is not. The United States
Supreme Court has “rejected the claim that aliens are entitled
to Fifth Amendment rights outside the sovereign territory of the
United States.” United States v. Verdugo-Urquidez, 494 U.S.
259, 269 (1990) (citing Johnson v. Eisentrager, 339 U.S. 763
(1950)). Because “[t]he Guantanamo Naval Base is not part of
the sovereign territory of the United States,” we recognized in
Kiyemba v. Obama that Guantanamo Bay detainees are not
protected by the Due Process Clause of the Fifth Amendment.
555 F.3d 1022, 1026 & n.9 (D.C. Cir. 2009) (“Decisions of the
Supreme Court and of this court . . . hold that the due process
clause does not apply to aliens without property or presence in
the sovereign territory of the United States.”), vacated by 559
U.S. 131 (2010), and reinstated as amended by 605 F.3d 1046
(D.C. Cir. 2010). Qassim thus marks a low point for this
Circuit—not because it is incorrectly decided (although it
undoubtedly is)—but because going forward no precedent, no
matter how clear and on point, is settled under the doctrine of
stare decisis. According to this new Circuit law, the way to
deal with Supreme Court precedent that the panel finds
uncomfortable is to disregard it, and the way to deal with like
Circuit precedent is to treat its holding as dictum. Accordingly,
I dissent from the denial of rehearing en banc.

     Khalid Qassim is detained at the Guantanamo Bay Naval
Base and claims that “the government’s use of undisclosed
classified information as a basis for his detention” violates his
right to due process under the Fifth Amendment to the United
States Constitution. Qassim, 927 F.3d at 524. The district
court held that under precedent, Guantanamo Bay detainees
                                 2
have no such right.1 Id. at 527 (“The district court denied the
motion in limine, reading this court’s decision in Kiyemba as
establishing that Qassim had no right to due process.”). The
panel reversed, stating that neither Kiyemba v. Obama nor “any
other decision of this circuit adopted a categorical prohibition
on affording detainees seeking habeas relief any constitutional
procedural protections.” Id. at 524.

    En banc review is appropriate if a panel decision creates
an irreconcilable conflict with Supreme Court or Circuit
precedent. Fed. R. App. P. 35(a)(1) (“An en banc hearing or
rehearing is not favored and ordinarily will not be ordered
unless . . . en banc consideration is necessary to secure or
maintain uniformity of the court’s decisions.”). Qassim does
both.

     Qassim ignores controlling Supreme Court precedent. In
Johnson v. Eisentrager, the Supreme Court held—in the
clearest possible terms—that the Fifth Amendment does not
apply to aliens outside the territory of the United States. 339
U.S. at 784–85 (“Such extraterritorial application of organic
law would have been so significant an innovation in the
practice of governments that, if intended or apprehended, it
could scarcely have failed to excite contemporary comment.
Not one word can be cited. No decision of this Court supports
such a view. None of the learned commentators on our
Constitution has ever hinted at it. The practice of every modern

    1
       This has been the uniform reading of Kiyemba in the district
court. See, e.g., Ali v. Trump, 317 F. Supp. 3d 480, 488 (D.D.C.
2018) (“Unfortunately for [petitioner], our Circuit Court has already
held that the due process clause does not apply in Guantanamo.”);
Rabbani v. Obama, 76 F. Supp. 3d 21, 25 (D.D.C. 2014) (same);
Ameziane v. Obama, 58 F. Supp. 3d 99, 103 n.2 (D.D.C. 2014)
(same); Bostan v. Obama, 674 F. Supp. 2d 9, 29 (D.D.C. 2009)
(same).
                               3
government is opposed to it.” (internal citation omitted)). That
indeed is exactly how two other Supreme Court decisions read
Eisentrager. In United States v. Verdugo-Urquidez, the Court
described Eisentrager’s “rejection of extraterritorial
application of the Fifth Amendment” as “emphatic.” 494 U.S.
at 269. And Zadvydas v. Davis declared:

      It is well established that certain constitutional
      protections available to persons inside the United
      States are unavailable to aliens outside of our
      geographic borders. See United States v.
      Verdugo–Urquidez, 494 U.S. 259, 269 (1990)
      (Fifth Amendment’s protections do not extend
      to aliens outside the territorial boundaries);
      Johnson v. Eisentrager, 339 U.S. 763, 784 (1950)
      (same).

533 U.S. 678, 693 (2001) (emphases added).

     These cases remain good law. The Supreme Court has
never overruled the Fifth Amendment holding in Eisentrager
and has never disagreed with Verdugo-Urquidez or Zadvydas.
The Qassim panel was therefore obligated to follow these
decisions, as the Kiyemba court did. Rodriguez de Quijas v.
Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989) (“If a
precedent of this Court has direct application in a case, yet
appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which
directly controls, leaving to this Court the prerogative of
overruling its own decisions.”). How does Qassim deal with
this Supreme Court authority? It says nothing substantive
whatsoever.

    Qassim also turns its back on Circuit precedent. In
Kiyemba v. Obama, we reviewed a district court order
                                4
requiring the government to release Guantanamo Bay detainees
into the United States. See 555 F.3d at 1023. We determined
that “[d]ecisions of the Supreme Court and of this court . . .
hold that the due process clause does not apply to aliens
without property or presence in the sovereign territory of the
United States.” Id. at 1026. And Kiyemba was far from the
first time our court so held. See, e.g., Jifry v. FAA, 370 F.3d
1174, 1182 (D.C. Cir. 2004); 32 County Sovereignty Comm. v.
Dep’t of State, 292 F.3d 797, 799 (D.C. Cir. 2002); Harbury v.
Deutch, 233 F.3d 596, 603–04 (D.C. Cir. 2000), rev’d on other
grounds by 536 U.S. 403 (2002); People’s Mojahedin Org. of
Iran v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999);
Pauling v. McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960)
(per curiam). “The Guantanamo Naval Base is not part of the
sovereign territory of the United States.” Kiyemba, 555 F.3d
at 1026 n.9. For that reason, Kiyemba held that the Fifth
Amendment could not provide legal authority for the district
court’s release order. Id. at 1026.

     How does Qassim deal with this Circuit precedent? It
claims that Kiyemba’s holding addressed only the
substantive—and not the procedural—due process right of
Guantanamo Bay detainees. See Qassim, 927 F.3d at 528–29.
This is inexplicable: the distinction between procedural and
substantive due process appeared nowhere in the Kiyemba
majority opinion. But see Kiyemba, 555 F.3d at 1038 (Rogers,
J., concurring in the judgment) (“[T]he majority does not
explain how a lack of procedural due process rights in
petitioners, which it asserts and uses to distinguish [a Supreme
Court precedent], would go to the power of the court, which the
majority finds lacking.” (emphases added)). And for good
reason. It was unclear whether the district court’s release order
was based on substantive or procedural due process. Id. at 1026
(The district court “said there were ‘constitutional limits,’ that
there was some ‘constitutional imperative,’ that it needed to
                                5
protect ‘the fundamental right of liberty.’ These statements
suggest that the court may have had the Fifth Amendment’s due
process clause in mind.”). The Kiyemba majority therefore
reasoned that, if the Fifth Amendment and its Due Process
Clause do not apply to aliens abroad, the detainees’ due process
arguments—whether characterized as substantive or
procedural—had to be rejected. Id. at 1026–27. The Qassim
panel may wish that Kiyemba’s due process holding was
narrower but “[a] court’s stated and, on its view, necessary
basis for deciding does not become dictum because a critic
would have decided on another basis.” Kalka v. Hawk, 215
F.3d 90, 96 (D.C. Cir. 2000) (quoting Henry J. Friendly, In
Praise of Erie—And of the New Federal Common Law, 39
N.Y.U. L. Rev. 383, 386 (1964)).

     Qassim also suggests that Kiyemba could not have denied
Guantanamo Bay detainees procedural due process rights in
light of the Supreme Court’s decision in Boumediene v. Bush,
553 U.S. 723 (2008), a case extending the protections of the
Suspension Clause of the United States Constitution to the
Guantanamo Bay Naval Base. See Qassim, 927 F.3d at 528–
29. But our decision in Rasul v. Myers, 563 F.3d 527 (D.C.
Cir. 2009) (per curiam), already rejected this view. There we
said Boumediene “stressed that its decision ‘does not address
the content of the law that governs petitioners’ detention’” and
“disclaimed any intention to disturb existing law governing the
extraterritorial reach of any constitutional provisions, other
than the Suspension Clause.” Id. at 529 (quoting Boumediene,
553 U.S. at 798); accord Bahlul v. United States, 840 F.3d 757,
796 (D.C. Cir. 2016) (en banc) (Millett, J., concurring)
(“[Boumediene’s] holding, however, was ‘explicitly confined
only to the extraterritorial reach of the Suspension Clause,’. . .
[a]nd it is settled that certain other constitutional provisions do
not protect aliens outside the sovereign United States. See, e.g.,
Kiyemba v. Obama, 555 F.3d 1022, 1026 & n.9 (D.C. Cir.
                               6
2009) (Due Process Clause of Fifth Amendment does not apply
to aliens at Guantanamo).” (internal citation omitted) (quoting
Rasul, 563 F.3d at 529)). In fact, Rasul explicitly affirmed that
the holdings of Eisentrager—“that aliens detained on a U.S.
military base outside sovereign U.S. territory have no due
process rights”—and of Kiyemba—“that alien detainees at
Guantanamo cannot invoke the Due Process Clause”—
survived Boumediene. 563 F.3d at 529.

     One final observation is in order. “[W]hen a decision of
one panel is inconsistent with the decision of a prior panel, the
norm is that the later decision, being a violation of fixed law,
cannot prevail.” Sierra Club v. Jackson, 648 F.3d 848, 854
(D.C. Cir. 2011). In the event of a conflict, a subsequent panel
must follow the earlier of the two conflicting decisions. FedEx
Home Delivery, an operating division of FedEx Ground
Package Sys., Inc. v. NLRB, 849 F.3d 1123, 1127 n.3 (D.C. Cir.
2017). Kiyemba unmistakably held that Guantanamo Bay
detainees lack due process rights. Although Qassim now
creates an intra-Circuit conflict, future panels of this court
remain bound by Kiyemba, not to mention by the Supreme
Court cases—Eisentrager, Verdugo-Urquidez and Zadvydas—
that Qassim overlooks. Qassim v. Trump should remain
nothing more than a blind alley in our Circuit law.

                           *   *    *

     Qassim disregards Supreme Court precedent and creates
an intra-Circuit conflict. The case for rehearing en banc could
not be stronger. I respectfully dissent.
