 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



                Filed On: February 22, 2019

                        No. 18-5297

               ABDUL RAZAK ALI, DETAINEE,
                      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. 1:10-cv-01020)


           On Petition for Initial Hearing En Banc
                           ______


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

                          ORDER

       Upon consideration of appellant’s petition for initial
hearing en banc, the response thereto, and the absence of a
request by any member of the court for a vote, it is
                               2


           ORDERED that the petition be denied.

                         Per Curiam

                                        FOR THE COURT:
                                        Mark J. Langer, Clerk

                               BY:     /s/
                                       Ken Meadows
                                       Deputy Clerk

* A statement by Circuit Judge Tatel, with whom Circuit Judge
Pillard joins, is attached.

** Circuit Judge Katsas did not participate in this matter.
     TATEL, Circuit Judge, with whom PILLARD, Circuit Judge,
joins, concurring: At the heart of this appeal lies a question
undoubtedly of exceptional importance: whether the
procedural protections of the Fifth Amendment’s Due Process
Clause extend to persons detained at the Guantanamo Bay
Naval Base. Someday this court may well need to address that
question en banc, but this is not that day. Because I read our
case law to leave unresolved the extent of the Due Process
Clause’s reach into Guantanamo Bay, I concur in the denial of
initial hearing en banc.

     The tightrope walk performed by both parties in the
briefing on this petition well illustrates the dilemma. Petitioner
apparently recognizes that our cases do “not preclude extension
of the Due Process Clause to Guantánamo.” Pet. 13. Perhaps
recognizing that this position is unlikely to win him an initial
hearing en banc, he adds that there is “obvious confusion” on
the issue among the “various opinions and statements by judges
of this Circuit.” Id. at 16. On the other side, the government
thinks there is no work for a panel to do because this court has
“clearly and repeatedly answered” the question by holding that
due process is unavailable at Guantanamo, Opp. 7, but
nonetheless takes the position that initial en banc review is
inappropriate, id. at 7–8.

     The government traces its insistence that this circuit has
resolved the question to Kiyemba v. Obama (Kiyemba I), 555
F.3d 1022, 1026–27 (D.C. Cir. 2009), vacated, 559 U.S. 131
(2010) (per curiam), reinstated in relevant part, 605 F.3d 1046
(D.C. Cir. 2010) (per curiam). See Opp. 7; see also Ali v.
Trump, 317 F. Supp. 3d 480, 488 (D.D.C. 2018) (reading
Kiyemba I to answer the question). But as I read the opinion in
Kiyemba I, that case neither implicated the right to procedural
due process nor decided whether its protections reach
Guantanamo.
                               2
     In Kiyemba I, all agreed that the detainees in question
should be released. 555 F.3d at 1024. The only question was
where. See id. Granting the detainees habeas relief, the district
court ordered the government to release them into the United
States. Id. We reversed, id. at 1032, explaining that the
Constitution committed the question in that case—concerning
who may enter the United States—to the political branches, see
id. at 1026 (“As a result, it ‘is not within the province of any
court, unless expressly authorized by law, to review the
determination of the political branch of the Government to
exclude a given alien.’” (quoting United States ex rel. Knauff
v. Shaughnessy, 338 U.S. 537, 543 (1950))).

     Along the way, however, the Kiyemba I court addressed
the district court’s notion that “some ‘constitutional
imperative’” protecting “‘the fundamental right of liberty’”
authorized the release order. Id. (quoting In re Guantanamo
Bay Detainee Litigation, 581 F. Supp. 2d 33, 34, 43 (D.D.C.
2008)). These phrases, according to the court, “suggest[ed] that
the [district] court may have had the Fifth Amendment’s due
process clause in mind.” Id. “But the due process clause,” the
Kiyemba I court explained, “cannot support the court’s order of
release” because “[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. The court consigned to a footnote the
remaining piece of the syllogism, stating that “[t]he
Guantanamo Naval Base is not part of the sovereign territory
of the United States.” Id. at 1026 n.9.

     In my view, Kiyemba I did not resolve whether the Fifth
Amendment affords detainees any procedural due process
protections. The Kiyemba I court addressed only one theory of
how the Due Process Clause might reach Guantanamo. When
the court said that the line of cases constraining the clause to
                                3
sovereign U.S. territory barred the requested relief, see id. at
1026 & n.9, it never contemplated—because nobody raised—
whether a successful theory might find support in Boumediene
v. Bush, 553 U.S. 723 (2008), the Supreme Court’s
pathmarking decision issued just eight months earlier. In that
case, the Court questioned the “argument that, at least as
applied to noncitizens, the Constitution necessarily stops where
de jure sovereignty ends,” id. at 755, and went on to explain
“that questions of extraterritoriality turn on objective factors
and practical concerns, not formalism,” id. at 764. Accord Al
Bahlul v. United States, 767 F.3d 1, 65 n.3 (D.C. Cir. 2014)
(Kavanaugh, J., concurring in the judgment in part and
dissenting in part) (reading Boumediene to “require[] a
‘functional’ rather than ‘formalistic’ analysis” to determine
whether a “particular constitutional provision” applies to “non-
U.S. citizens in U.S. territories”).

     The Kiyemba I court, moreover, did not explain whether it
was referring to the right to substantive due process or to the
right at issue here, the right to procedural due process. Cf.
County of Sacramento v. Lewis, 523 U.S. 833, 845–46 (1998)
(due process both requires “fundamental procedural fairness”
and “protects against government power arbitrarily and
oppressively exercised”). Context, however, indicates that the
court was referring to the right to substantive due process. The
relevant passage in Kiyemba I refuted the premise that a
“fundamental right of liberty” required the government to
release the detainees onto United States soil. Id. at 1026
(internal quotation marks omitted). That hardly sounds like a
procedural protection. See Washington v. Glucksberg, 521 U.S.
702, 721 (1997) (recognizing that substantive due process is
concerned with “fundamental liberty interest[s]”). Indeed, the
relevant dispute in Kiyemba I concerned only whether the law
gave the detainees a substantive right to enter the United States.
The detainees asserted no procedural due process rights, see
                               4
555 F.3d at 1024, and we should not lightly read our opinions
to sweep far beyond the facts of a given case. See American
Federation of Musicians v. FCC, 356 F.2d 827, 830 (D.C. Cir.
1966) (“[T]he judicial function is best served, we believe, when
appellate decision, after appropriate review, is limited to only
those questions necessary to decide the case . . . .”). And
although this court has occasionally restated Kiyemba I’s
holding, see, e.g., Bahlul v. United States, 840 F.3d 757, 796
(D.C. Cir. 2016) (en banc), it has never purported to expand the
original opinion’s ambit.

     This limited understanding of Kiyemba I helps explain
why subsequent panels of this court have demurred from
reading the case to resolve, for all time, the due process rights
of Guantanamo detainees. For example, in Rasul v. Myers,
issued just two months after Kiyemba I, the court, including the
two members of the Kiyemba I majority, declined to “decide
whether Boumediene portends application of the Due Process
Clause . . . to Guantanamo detainees.” 563 F.3d 527, 529 (D.C.
Cir. 2009) (per curiam). Similarly, in Al-Madhwani v. Obama,
we avoided deciding whether Kiyemba I foreclosed any due
process rights by “assuming [the detainee] had a constitutional
right to due process.” 642 F.3d 1071, 1077 (D.C. Cir. 2011). If
Kiyemba I had actually decided that territorial sovereignty
offers the only possible basis for extending any due process
protections, then Rasul and Al-Madhwani would have had no
reason to avoid the question.

    Ali’s argument that the Due Process Clause has something
to say about the length of his confinement is serious—and
deserves to be taken seriously. The detentions at Guantanamo
Bay, which the government tells us may last at least until the
hostilities authorized in 2001 abate, are lengthening into
decades, with no end in sight. This situation requires this
court’s careful consideration. But because it should be
                              5
considered first by a panel, I concur in the denial of initial
hearing en banc.
