 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 5, 2020                Decided August 28, 2020

                        No. 19-5079

ABDULSALAM ALI ABDULRAHMAN AL HELA, DETAINEE CAMP
                     DELTA,
                   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. 1:05-cv-01048)


    Andrew D. Garrahan argued the cause for appellant. With
him on the briefs were Brian E. Foster, S. William Livingston,
Megan O’Neill, and David H. Remes. Cyril Djoukeng entered
an appearance.

    Brad Hinshelwood, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Joseph H. Hunt, Assistant Attorney General, and Sharon
Swingle, Attorney.

   Before: GRIFFITH and RAO, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
                                2
    Opinion for the Court filed by Circuit Judge RAO.

     Opinion concurring in part and concurring in the judgment
filed by Circuit Judge GRIFFITH.

   Concurring opinion filed by Senior Circuit Judge
RANDOLPH.

     RAO, Circuit Judge: Abdulsalam Ali Abdulrahman
Al Hela filed a habeas petition challenging his detention at the
U.S. Naval Station at Guantanamo Bay, Cuba. The district
court denied the writ after a full hearing on the merits. On
appeal, Al Hela claims that the President lacks authority to
detain him for substantially supporting Al Qaeda and its
associated forces; that he is entitled to release for violation of
both “substantive” and “procedural” due process; and that the
district court’s discovery procedures failed to provide him with
a “meaningful opportunity” to challenge his detention under
the Suspension Clause. We affirm the district court because the
President has authority to detain Al Hela and the proceedings
below complied with the requirements of the Suspension
Clause. We reject Al Hela’s due process claims because the
Due Process Clause may not be invoked by aliens without
property or presence in the sovereign territory of the United
States.

                                I.

     Al Hela is a Yemeni citizen, tribal sheikh, and
businessman with connections to prominent political officials
in Yemen’s government. Throughout the 1990s and early
2000s, Al Hela assisted the Political Security Organization, an
internal security and intelligence service of the Yemeni
government, with the deportation of foreign Arabs who settled
in Yemen after the conclusion of the Soviet-Afghan War.
During this time, Al Hela also maintained contact with several
                                  3
known and suspected affiliates of Al Qaeda and two associated
terrorist organizations known as the Egyptian Islamic Jihad and
the Aden-Abyan Islamic Army. Al Hela disappeared during
a business trip to Egypt in 2002 under circumstances irrelevant
to this appeal. U.S. forces later obtained custody of Al Hela and
have detained him at Guantanamo Bay since 2004.1

    In 2005, Al Hela petitioned the U.S. District Court for the
District of Columbia for a writ of habeas corpus, arguing the
President lacks authority to detain him under the Authorization
for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224
(2001) (“AUMF”). The proceedings moved forward after the
Supreme Court held in Boumediene v. Bush that the Suspension
Clause guarantees alien detainees at Guantanamo Bay
a “meaningful opportunity” to challenge the basis for their
detention through habeas review. 553 U.S. 723, 779 (2008); see
U.S. CONST. art. I, § 9, cl. 2. To comply with this requirement,
the judges of the U.S. District Court for the District of
Columbia developed a standing case management order used
in many Guantanamo habeas cases to manage discovery and to
protect classified information from unwarranted disclosure. In
re Guantanamo Bay Detainee Litig., Misc. No. 08-442, 2008
WL 4858241 (D.D.C. Nov. 6, 2008), as amended, 2008 WL
5245890 (D.D.C. Dec. 16, 2008).

     As applied in Al Hela’s case, the case management order
required the government to provide a factual return detailing
the allegations and evidence supporting his detention, disclose
1
  This court reviewed both classified and unclassified materials in the
course of deciding Al Hela’s appeal. Because the unclassified record
and briefing are sufficient to support our decision, this opinion
contains no classified information. To the extent the district court’s
findings of fact rely on classified information, we have reviewed the
complete record and are satisfied the court’s consideration of the
evidence was reasonable.
                                4
any material exculpatory information in its possession, and
perform certain additional discovery upon request. See id.
§§ I.A, I.B, I.C, I.D, I.E. The order protected classified material
contained within these filings by providing for three tiers of
information access. First, Al Hela was permitted to view an
unclassified summary of the factual return along with a limited
number of excerpts from other documents. See id. § I.F.
Second, Al Hela’s counsel was allowed to view most of the
classified information in the factual return and supporting
exhibits under a protective order. See id. Third, the government
was permitted to withhold particularly sensitive classified
information altogether by obtaining permission from the court
after an ex parte, in camera review of the material. See id.

      In the years that followed, Al Hela filed a series of motions
for additional discovery that the district court denied. Al Hela
first argued the Suspension and Due Process Clauses required
that his counsel be allowed to access the government’s ex parte
filings, which sought to exempt particularly sensitive classified
material from disclosure. The court denied access because the
filings described the underlying sensitive classified
information. Order, Al Hela v. Obama, No. 05-cv-1048
(D.D.C. Nov. 19, 2014). Next, Al Hela moved for personal
access to the classified factual return given to his counsel.
Although Al Hela argued the unclassified summary and limited
excerpts provided to him were insufficient to mount a
meaningful challenge to his detention, the district court found
existing disclosures met all applicable constitutional
requirements. See Al Hela v. Obama, No. 05-cv-1048, 2016
WL 2771804, at *2 (D.D.C. May 13, 2016).

     The district court denied Al Hela’s habeas petition after
a full hearing on the merits. First, the court interpreted the
AUMF and related statutes to permit the detention of
individuals who “substantially supported” covered terrorist
                                  5
organizations in ways not directly related to hostilities against
the United States and its allies. Al Hela v. Trump, No. 05-cv-
1048, unclass. slip op. at 9–21 (D.D.C. Jan. 28, 2019). Second,
the court rejected Al Hela’s claim that he was entitled to release
under the Due Process Clause, holding that “the due process
clause does not apply to Guantanamo detainees.” Id. at 23
(citing Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009)
(“Kiyemba I”), vacated and remanded, 559 U.S. 131, judgment
reinstated as amended, 605 F.3d 1046 (D.C. Cir. 2010) (per
curiam) (“Kiyemba III”)). Third, the court concluded after an
ex parte, in camera review that the government’s intelligence
reports were sufficiently reliable to support Al Hela’s detention
despite containing anonymous, multi-layered hearsay. Id. at
24–28. Finally, the court determined the government put
forward sufficient evidence to demonstrate Al Hela
“substantially supported” Al Qaeda and associated forces
under the AUMF detention standard. Id. at 80–82. Specifically,
Al Hela was a trusted and reliable member of international
terrorist networks after participating in jihad against the Soviet
Union in Afghanistan in the late 1980s. Id. at 33–34, 69–80. In
the years leading up to Al Hela’s disappearance and detention,
terrorist leaders relied on Al Hela to transport fighters within
Yemen and across regional borders in furtherance of attacks
against the United States and its allies, including by leveraging
his government contacts to procure fake identification and
travel documents. Id. at 36–67.

     Al Hela appeals, asking that we order his conditional
release to a foreign nation on the statutory ground that the
President exceeded the scope of his AUMF authority and on
the constitutional ground that his detention without trial
violates “substantive” due process.2 Further, Al Hela argues the

2
  Conditional release is a remedy that allows federal courts to “delay
the release of a successful habeas petitioner in order to provide the
                                  6
district court’s discovery and evidentiary rulings violated the
procedural guarantees of the Suspension and Due Process
Clauses. We have jurisdiction over Al Hela’s appeal. See 28
U.S.C. §§ 2241, 2253(a).

                                 II.

     We begin with the President’s statutory authority to detain
Al Hela at the U.S. Naval Station at Guantanamo Bay. Al Hela
asks us to reverse and remand with instructions to order his
conditional release because the President exceeded the scope
of his statutory detention authority. We conclude that the
President has authority to detain Al Hela for “substantially
support[ing]” Al Qaeda and its associated forces and that the
district court correctly determined the government’s evidence
justifies his ongoing detention.

                                 A.

    After the terrorist attacks of September 11, 2001, Congress
authorized the President to “use all necessary and appropriate
force against those nations, organizations, or persons he


[government] an opportunity to correct the constitutional violation
found by the court.” Hilton v. Braunskill, 481 U.S. 770, 775 (1987);
see also Boumediene, 553 U.S. at 779 (holding the Suspension
Clause requires habeas courts have the power to order conditional
release). With respect to Guantanamo detainees, a central remedial
question is where detainees will be released given “the exclusive
power of the political branches to decide which aliens may, and
which aliens may not, enter the United States.” Kiyemba III, 605 F.3d
at 1048. Although no foreign government has yet agreed to accept
him, Al Hela “believes that, once his release is approved, he can
obtain a statement from an allied Persian Gulf nation saying that he
would be welcomed there, is not and has not been a threat to security,
and would not raise security concerns.” Al Hela Unclass. Br. 76 n.18.
                               7
determines planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons.” AUMF § 2(a). The
AUMF authorizes the President to detain any individual who is
part of or supported Al Qaeda, the Taliban, or associated
forces. See Hamdi v. Rumsfeld, 542 U.S. 507, 518–19 (2004)
(plurality opinion of O’Connor, J.); Al Bihani v. Obama, 590
F.3d 866, 872 (D.C. Cir. 2010).3 In the National Defense
Authorization Act for Fiscal Year 2012 (“2012 NDAA”),
Congress reaffirmed that the AUMF permits the President to
detain, “pending disposition under the law of war,” any person

       who was a part of or substantially supported al-
       Qaeda, the Taliban, or associated forces that are
       engaged in hostilities against the United States
       or its coalition partners, including any person
       who has committed a belligerent act or has
       directly supported such hostilities in aid of such
       enemy forces.

Pub. L. No. 112-81, § 1021(a), (b)(2), 125 Stat. 1298, 1562
(2011). Further, Congress explicitly provided that the President
may detain such persons “without trial until the end of the
hostilities authorized by the [AUMF].” Id. § 1021(c)(1).

    When a detainee files a habeas petition, the government
bears the burden of proving “by a preponderance of the
evidence” that the detainee was “part of or substantially
supported” enemy forces. Ali v. Obama, 736 F.3d 542, 544 &

3
  Since 2001, each President has relied on the AUMF, as well as
constitutional authorities, to detain captured terrorists at
Guantanamo Bay. See Exec. Order No. 13,823, 83 Fed. Reg. 4,831
(Jan. 30, 2018); Exec. Order No. 13,492, 74 Fed. Reg. 4,897 (Jan.
22, 2009); Military Order of Nov. 13, 2001, 66 Fed. Reg. 57,833.
                               8
n.1 (D.C. Cir. 2013). But see Al Bihani, 590 F.3d at 878 & n.4
(reserving the question whether lesser standards of proof could
be constitutionally adequate). Al Hela maintains that the
district court misinterpreted the 2012 NDAA and that the
record does not support the court’s finding that he substantially
supported Al Qaeda and associated forces.

                               1.

     First, Al Hela argues his detention cannot be upheld based
on substantial support alone because the 2012 NDAA requires
the government to also show that his support rendered him
“effectively a part of the enemy armed forces.” Al Hela
Unclass. Br. 25; see Al Hela, No. 05-cv-1048, unclass. slip op.
at 33 (approving Al Hela’s detention based on substantial
support alone). In detainee cases, “[t]he sources we look to for
resolution [of statutory questions] are the sources courts always
look to: the text of relevant statutes and controlling domestic
caselaw.” Al Bihani, 590 F.3d at 871–72.

     Al Hela’s interpretation is inconsistent with the plain text
of the 2012 NDAA. Congress explicitly authorized the
President to detain persons who were “part of or substantially
supported al-Qaeda, the Taliban, or associated forces.” 2012
NDAA § 1021(b)(2) (emphasis added). The prongs are
disjunctive, suggesting that a person may be detained if either
condition is met. See Encino Motorcars, LLC v. Navarro, 138
S. Ct. 1134, 1141 (2018) (“‘[O]r’ is ‘almost always
disjunctive.’” (citation omitted)).

    The statutory history and practice that preceded the
enactment of the 2012 NDAA are also inconsistent with
Al Hela’s argument that the “substantially supported” standard
covers only persons who were “effectively a part of” an enemy
force. Congress enacted the 2012 NDAA in light of standards
developed by the judiciary and the Executive under several
                                9
earlier statutes dealing with the War on Terror, including the
AUMF, the Detainee Treatment Act of 2005, and the Military
Commissions Acts of 2006 and 2009. As we noted in Al Bihani,
these statutes authorizing detention and other uses of force
provided a framework for detention while also “grant[ing] the
government the power to craft a workable legal standard to
identify individuals it can detain.” 590 F.3d at 872. Prior to the
2012 NDAA, this court understood the AUMF to authorize the
government “to detain anyone who was part of or supporting
Taliban or al Qaeda forces, or associated forces that are
engaged in hostilities against the United States or its coalition
partners.” Id. In applying that definition, we concluded “that
both prongs”—“part of” and “substantially supported”—“are
valid criteria that are independently sufficient to satisfy the
standard.” Id. at 873–74.

      Our decision in Al Bihani also relied heavily on language
in the Military Commissions Act of 2006, which authorized
trial by military commission of “a person who has engaged in
hostilities or who has purposefully and materially supported
hostilities against the United States.” Pub. L. No. 109-366, § 3,
120 Stat. 2600, 2601; see also National Defense Authorization
Act for Fiscal Year 2010, Pub. L. No. 111-84, § 1802, 123 Stat.
2190, 2575 (2009) (importing substantially the same definition
into the Military Commissions Act of 2009). We explained that
the scope of AUMF detention authority “logically covers
a category of persons no narrower than is covered by [the]
military commission authority,” because persons subject to
trial by military commission must necessarily also be subject
to detention. Al Bihani, 590 F.3d at 872. Although Congress
used the phrase “substantially supported” in the 2012 NDAA
rather than “materially supported,” the phrase used in earlier
statutes, these terms are largely synonymous. Compare
Materially, Oxford English Dictionary (3d ed. 2001) (“To
a material or important extent; significantly; substantially;
                               10
considerably.”), with Substantially, id. (“Fully, amply; to
a great extent or degree; considerably, significantly, much.”).
This interpretive background reinforces the plain meaning of
the 2012 NDAA. Congress adopted a definition virtually
identical to the one approved in Al Bihani, in which we held
a person may be detained if he was either part of or supported
Al Qaeda, the Taliban, or associated forces. Nothing in the text,
structure, or statutory background of the 2012 NDAA suggests
that a person who “substantially supported” enemy forces must
be “effectively a part of” those forces.

     Al Hela also reads the 2012 NDAA to require proof of
direct support for hostilities to satisfy the “substantially
supported” standard. Recall the statute allows detention of any
person who

       substantially supported al-Qaeda, the Taliban,
       or associated forces that are engaged in
       hostilities against the United States or its
       coalition partners, including any person who
       has committed a belligerent act or has directly
       supported such hostilities in aid of such enemy
       forces.

2012 NDAA § 1021(b)(2). Al Hela places great weight on the
clause “including any person who has … directly supported
such hostilities.” Yet the word “including” typically introduces
specific examples rather than a comprehensive definition. Cf.
United States v. Philip Morris USA, Inc., 396 F.3d 1190, 1200
(D.C. Cir. 2005) (“The words ‘including, but not limited to’
introduce a non-exhaustive list that sets out specific examples
of a general principle.”). Under the 2012 NDAA, persons who
“directly support[] such hostilities” may be detained, but they
are not the only persons within the definition of detainable
persons. Put another way, if a person directly supported enemy
                                11
forces, that meets the 2012 NDAA standard for substantial
support; however, the converse is not true, because a person
may be found to substantially support enemy forces without
directly supporting them.

     Al Hela further argues that “involvement in hostilities [is]
a prerequisite for a finding of substantial support” and that “the
support must take place in hostilities against U.S. Coalition
partners” to justify detention. Al Hela Unclass. Br. 23–24
(cleaned up). This argument has no basis in the 2012 NDAA’s
text, which does not require involvement in hostilities. Instead,
the phrase “engaged in hostilities” describes which “associated
forces” fall within the definition’s scope, but does not define
the type of support sufficient for detention. 2012 NDAA
§ 1021(b)(2). Similarly, the phrase “who has committed
a belligerent act” falls within the “including” clause and merely
states one example of the type of conduct within the statute’s
scope. Id. Involvement in hostilities has never been
a prerequisite for detention under the AUMF. In Al Bihani, for
example, the petitioner traveled with a Taliban-allied brigade
and “carried a brigade-issued weapon, but never fired it in
combat.” 590 F.3d at 869. As we explained, Al Bihani’s
primary role as the brigade’s cook was enough to establish
substantial support. Id. at 873. In the AUMF, the 2012 NDAA,
and other statutes related to the War on Terror, Congress has
consistently recognized that even indirect support for hostilities
against the United States and its allies justifies the use of force,
including detention.4




4
  The Supreme Court has interpreted analogous statutes targeting
“material support” for terrorist organizations to encompass indirect
support. See Holder v. Humanitarian Law Project, 561 U.S. 1, 29–
39 (2010) (interpreting 18 U.S.C. § 2339B(a)(1), which makes it
                               12
     Finally, our cases interpreting the “part of” prong of the
2012 NDAA have also squarely rejected direct participation in
hostilities as a categorical requirement: “In order to detain
individuals who were part of the Taliban or al-Qaeda forces,
proof that the individuals also actively engaged in combat
against the United States and its allies is unnecessary.”
Khairkhwa v. Obama, 703 F.3d 547, 550 (D.C. Cir. 2012); see
also Hussain v. Obama, 718 F.3d 964, 967–68 (D.C. Cir. 2013)
(rejecting argument that detainee must have engaged in direct
hostilities); Uthman v. Obama, 637 F.3d 400, 402–04 (D.C.
Cir. 2011) (approving detention without evidence of direct
participation in hostilities). We therefore hold the AUMF and
the 2012 NDAA authorize the President to detain individuals
who “substantially supported” enemy forces irrespective of
whether they also directly supported those forces or
participated in hostilities.

                               2.

     Al Hela also argues that the timing of his allegedly
supportive activities undermines the government’s basis for
detention. First, Al Hela maintains that the AUMF and the 2012
NDAA distinguish support offered before the attacks of
September 11, 2001, and support offered after. On his
interpretation, support offered before September 11 justifies
detention only if directly related to the attacks, whereas support
unrelated to the attacks justifies detention only if offered after
September 11. Al Hela Unclass. Br. 26–27. As such, Al Hela
claims the government’s evidence fails to justify detention
because his allegedly supportive conduct occurred before
September 11 and was unrelated to the attacks. Yet support for
covered terrorist organizations before September 11 is

unlawful to “knowingly provide[] material support or resources to
a foreign terrorist organization”).
                              13
unquestionably a proper basis for detention whether or not
related to the attacks.

     The AUMF authorizes the use of “all necessary and
appropriate force against those” who “planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or
persons.” AUMF § 2(a) (emphasis added). Congress’s
authorization of force against those who “harbored” covers
a far broader range of activity than support for individual acts
of terrorism. See Al Bihani, 590 F.3d at 873. We have sustained
detention of terrorist organization members based on pre-
September 11 conduct that was not directly related to executing
the attacks. See, e.g., Khairkhwa, 703 F.3d at 548–49 (detailing
funding and leadership activities within the Taliban in the
1990s and early 2000s unrelated to the September 11 attacks);
Al Bihani, 590 F.3d at 869 (describing involvement in
a Taliban-allied brigade in early 2001 with no direct
connection to the September 11 attacks). Although many of
these cases involved detainees found to be “part of” a defined
terrorist group, rather than those who “substantially supported”
such a group, this distinction does not alter the government’s
detention authority under the AUMF.

     Second, Al Hela argues that his alleged support for
Al Qaeda and its associated forces was too sporadic and
informal to constitute substantial support by the time of his
disappearance and subsequent detention. This argument
misunderstands the nature of habeas review under the AUMF
and the 2012 NDAA. Whether the passage of time between
supportive conduct and capture undermines detention depends
on the facts of a particular case, and courts must weigh the
evidence as a whole to determine whether the detainee
“substantially supported” covered terrorist organizations. See
Awad v. Obama, 608 F.3d 1, 7 (D.C. Cir. 2010). Al Hela
                               14
attempts to rely on Al Ginco v. Obama, in which the district
court found the record did not support detention because, after
developing a relationship with Al Qaeda, the petitioner was
detained and tortured by the organization as a suspected spy.
626 F. Supp. 2d 123, 129–30 (D.D.C. 2009). By contrast, here
the district court correctly determined Al Hela’s supportive
conduct was not “vitiated by the passage of time” based on the
nature of Al Hela’s relationship with terrorist organizations, the
lack of intervening conduct suggesting an abandonment of the
relationship, and the mere sixteen months between his final
support and disappearance. Al Hela, No. 05-cv-1048, unclass.
slip op. at 80.

                               3.

     In addition, Al Hela challenges the district court’s findings
that the Egyptian Islamic Jihad (“EIJ”) and the Aden-Abyan
Islamic Army (“AAIA”) were “associated forces” of Al Qaeda
under the 2012 NDAA. While we review the district court’s
underlying factual findings for clear error, the district court’s
ultimate conclusion that Al Qaeda and another force were
associated for the purposes of the AUMF and the 2012 NDAA
is a legal finding reviewed de novo. See Khan v. Obama, 655
F.3d 20, 26 (D.C. Cir. 2011).

     The EIJ “entered the fight alongside al Qaeda … in
hostilities against the United States or its coalition partners as
part of the same comprehensive armed conflict.” Al Hela, No.
05-cv-1048, unclass. slip op. at 17. Beginning in the 1970s, the
EIJ operated cells throughout the Middle East, including
Yemen, and participated in bombing attacks against United
States allies in the 1990s. By 1998, its leader was a deputy to
Osama bin Laden and signed onto the Al Qaeda leader’s fatwa
encouraging the murder of Americans. Id. at 29–30. By June
2001, just over a year prior to Al Hela’s disappearance, the EIJ
                              15
appears to have formally joined Al Qaeda. Id. at 31. Both the
United States and the United Nations Security Council
considered the EIJ a foreign terrorist organization affiliated
with Al Qaeda. Id. at 30. This evidence compares favorably to
that in Khan, where we determined Hezb–i–Islami Gulbuddin
was an associated force of the Taliban because it participated
in joint recruiting efforts and conducted attacks against United
States forces. 655 F.3d at 32–33.

     Likewise, the AAIA entered the fight against the United
States and its allies alongside Al Qaeda prior to Al Hela’s
disappearance and detention. The district court noted the AAIA
has been dedicated to the violent overthrow of Yemen’s
government since 1998, participated in several bombings, and
kidnapped sixteen American, British, and Australian tourists.
Al Hela, No. 05-cv-1048, unclass. slip op. at 31–32. By 2001
the organization had proclaimed support for Al Qaeda’s
leadership and conducted multiple attacks against the United
States and its allies abroad. Both the United States and the
United Nations Security Council considered the AAIA a
foreign terrorist organization affiliated with Al Qaeda. Id.

    We conclude the district court’s factual findings were
reasonable and demonstrate sufficient connections between
Al Qaeda and the EIJ and AAIA to render those groups
“associated forces” as a matter of law.

                               4.

     Finally, Al Hela argues that even if the district court
interpreted the 2012 NDAA correctly, the record contains
insufficient evidence to conclude he substantially supported
Al Qaeda, the EIJ, or the AAIA. Whether Al Hela’s detention
is justified is a mixed question of law and fact. Barhoumi v.
Obama, 609 F.3d 416, 423 (D.C. Cir. 2010). Whether the
alleged conduct occurred is a factual question reviewed for
                                16
clear error, but whether that conduct qualifies as substantial
support under the 2012 NDAA is a question of law reviewed
de novo. Id.; see Khan, 655 F.3d at 26. On this record we have
no difficulty concluding that the district court’s thorough
findings demonstrate Al Hela “substantially supported”
Al Qaeda, the EIJ, and the AAIA.

     The court reasonably found that Al Hela was a trusted
member of the international jihadi community for decades and
facilitated the travel of known terrorists by providing travel
documents and false identities. Al Hela, No. 05-cv-1048,
unclass. slip op. at 33, 37–54, 77. Further, the court reasonably
found Al Hela provided or was asked to provide planning and
logistical support related to several actual or aborted attacks
against the United States and its allies. Id. at 54–70. The
unclassified and classified records in this case demonstrate that
the district court did not clearly err when drawing inferences
and weighing the evidence. The court’s factual findings—
longstanding jihadi ties, facilitating covert international travel,
and indirectly supporting actual or attempted attacks—confirm
that Al Hela substantially supported enemy forces. Cf. Al
Bihani, 590 F.3d at 872–73 (concluding a petitioner’s
“traditional food operations essential to a fighting force and the
carrying of arms” made him detainable under the AUMF for
substantially supporting enemy forces).

     Accordingly, we affirm the district court’s determination
that the AUMF and the 2012 NDAA permit the President to
detain Al Hela because he “substantially supported” Al Qaeda
and its associated forces, the EIJ and the AAIA.

                                B.

    Whatever the scope of the President’s authority when
Congress passed the AUMF in 2001, Al Hela argues that this
authority has “unraveled” as the War on Terror has extended in
                               17
duration from years to decades. He relies on the Hamdi
plurality opinion, which, after concluding “based on
longstanding law-of-war principles” that the AUMF permitted
detention, noted that this “understanding may unravel” “[i]f the
practical circumstances of a given conflict are entirely unlike
those of the conflicts that informed the development of the law
of war.” 542 U.S. at 521. According to Al Hela, his detention
now falls outside law of war principles and amounts to a “life
sentence” because the War on Terror is “a war without end.”
Al Hela Unclass Br. 64–65.

     We recently rejected an identical argument, observing that
the AUMF and the 2012 NDAA impose no time limit on the
President’s authority to detain enemy combatants. Al Alwi v.
Trump, 901 F.3d 294, 297–300 (D.C. Cir. 2018); 2012 NDAA
§ 1021(a) (authorizing detention “pending disposition under
the law of war”), (c)(1) (stating that “pending disposition under
the law of war” includes detention “without trial until the end
of the hostilities authorized by the [AUMF]”); see also Ali, 736
F.3d at 552 (“[T]he 2001 AUMF does not have a time limit.”).

     The government maintains that the War on Terror is an
ongoing conflict involving combat operations by the United
States and its allies abroad. Courts lack the authority or the
competence to decide when hostilities have come to an end.
“The ‘termination’ of hostilities is ‘a political act.’” Al Alwi,
901 F.3d at 299 (quoting Ludecke v. Watkins, 335 U.S. 160,
168–69 (1948)). So long as the record establishes the United
States military is involved in combat against Al Qaeda, the
Taliban, or associated forces, we have no warrant to second
guess fundamental war and peace decisions by the political
branches. See id. at 300; Al Bihani, 590 F.3d at 874 (“The
determination of when hostilities have ceased is a political
decision, and we defer to the Executive’s opinion on the
matter.”). The Constitution vests the war powers in Congress
                               18
and the President. An essential aspect of the war powers is the
initiation and cessation of armed conflict—decisions that rest
squarely with the political branches and are outside the scope
of judicial review. Based on the record before us, we readily
accept the government’s representation that hostilities have not
ended.

                           *    *     *

     The AUMF and the 2012 NDAA authorize the detention
of persons who are “part of” or “substantially supported”
Al Qaeda, the Taliban, or associated forces. In recognition of
the global and diffuse nature of the conflict, this definition
covers not only those who are part of covered terrorist
organizations or directly aid hostilities, but also those who
substantially support the organizations by facilitating the
logistics and planning that make their activities possible. Under
this well established standard, the government demonstrated
Al Hela substantially supported Al Qaeda and its associated
forces within the meaning of the 2012 NDAA.

                               III.

     Next, we consider whether the district court’s evidentiary
and discovery rulings complied with the requirements of the
Suspension Clause by providing Al Hela a meaningful
opportunity to challenge his detention. Al Hela claims the court
erred by relying on anonymous hearsay and by denying him
access to the charges and evidence against him. More than
a decade of case law has defined the procedures required to
guarantee detainees the meaningful opportunity for habeas
review required by the Suspension Clause while respecting
national security prerogatives and the separation of powers.
Under these precedents, we affirm the district court’s discovery
and evidentiary rulings as constitutionally sound.
                               19
     The Suspension Clause provides that “[t]he Privilege of
the Writ of Habeas Corpus shall not be suspended, unless when
in Cases of Rebellion or Invasion the public Safety may require
it.” U.S. CONST. art. I, § 9, cl. 2. Under certain circumstances,
aliens detained abroad by the United States are entitled to
a “meaningful opportunity” to challenge the statutory basis for
their detention through habeas review before a court with the
power to order conditional release. Boumediene, 553 U.S. at
779; see Al Maqaleh v. Gates, 605 F.3d 84, 93–94 (D.C. Cir.
2010) (applying Boumediene to determine when aliens abroad
are covered by the Suspension Clause). We review the district
court’s evidentiary and discovery rulings for abuse of
discretion and reliability findings for clear error, Al Alwi v.
Obama, 653 F.3d 11, 15, 19 (D.C. Cir. 2011), but review de
novo any errors of law on which the court relied when
exercising its discretion, Ameziane v. Obama, 620 F.3d 1, 5
(D.C. Cir. 2010).

     First, Al Hela argues that the Suspension Clause bars
reliance on evidence containing multiple layers of anonymous
hearsay and that the district court erred by relying on
government intelligence reports based on such information. As
we held in Al Bihani, hearsay evidence is “always admissible”
in Guantanamo habeas proceedings and its use requires
reversal only when the hearsay undermines “the baseline level
of evidentiary reliability necessary for the ‘meaningful’ habeas
proceeding Boumediene requires under the Suspension
Clause.” 590 F.3d at 879. Thus, the question before the district
court is not whether to admit the hearsay evidence, “but what
probative weight to ascribe to whatever indicia of reliability it
exhibits.” Id. We also noted that the typical concerns
surrounding hearsay are mitigated in this context because
“district judges are experienced and sophisticated fact finders”
whose “eyes need not be protected from unreliable information
                                20
in the manner the Federal Rules of Evidence aim to shield the
eyes of impressionable juries.” Id. at 880.

     Here, the district court found the challenged evidence
reliable after an ex parte, in camera review of the source
material. Al Hela, No. 05-cv-1048, unclass. slip op. at 25–26.
As official government records, intelligence reports receive a
rebuttable “presumption of regularity,” even when they include
layered hearsay information from non-governmental sources.
Latif v. Obama, 677 F.3d 1175, 1178 (D.C. Cir. 2011) (quoting
Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C.
Cir. 2007)). In any event, layers of anonymous hearsay do not
deprive a detainee of “meaningful” proceedings so long as the
district court determines the underlying classified sources
contain more than “bottom-line assertions” and reasonably
specify the who, what, and where of the detainee’s conduct.
Parhat v. Gates, 532 F.3d 834, 846–47 (D.C. Cir. 2008); see
also Khan, 655 F.3d at 31 (approving intelligence reports that
contained sufficient indicia of reliability); Awad, 608 F.3d at 7
(noting that “hearsay evidence is admissible in this type of
habeas proceeding if the hearsay is reliable”). Ex parte, in
camera review allows the district court to consider the
government’s underlying sources to ensure the final
intelligence report is sufficiently reliable. We identify no clear
error in the district court’s thorough analysis of the intelligence
reports in this case.

     Second, Al Hela claims that personal access to the charges
and evidence against him is essential to the “meaningful
opportunity” guaranteed by the Suspension Clause and that the
district court erred by denying his motion for personal access
to classified information. See Al Hela, 2016 WL 2771804, at
*2 (denying discovery motion). The Suspension Clause,
however, does not guarantee an absolute right personally to
access the government’s evidence in a habeas proceeding.
                              21
Rather, we have encouraged the “search for reasonable
alternatives” to the disclosure of sensitive information,
including the use of summaries that “accurately represent[] the
information contained in the [intelligence] reports.” Khan, 655
F.3d at 31. The government has a compelling interest in
protecting classified information. Dep’t of Navy v. Egan, 484
U.S. 518, 527 (1988). We have sought to respect this interest
by disclosing certain classified information only to attorneys
with a security clearance, see Al Odah v. United States, 559
F.3d 539, 544–45 (D.C. Cir. 2009), and we have never required
such disclosure directly to a detainee. Here, the government
“provide[d] specific and persuasive reasons to believe that
further disclosure of the allegations against petitioner and the
factual bases therefor would risk revealing U.S. intelligence
sources and methods.” Al Hela, 2016 WL 2771804, at *3. The
government’s unclassified summary provided Al Hela a “broad
overview of many (but not all) of the facts and allegations”
against him. Id. at *1. The district court managed classified
information in a manner consistent with our precedents on the
requirements of habeas review.

     Third, Al Hela claims the district court violated the
Suspension Clause by denying his cleared counsel access to
certain sensitive classified information in the government’s ex
parte filings. See Order of Nov. 19, 2014, Al Hela, No. 05-cv-
1048 (denying discovery motion). Yet it is well established that
“the government may withhold classified national security
material consistent with its ‘legitimate interest in protecting
sources and methods of intelligence gathering.’” Obaydullah v.
Obama, 688 F.3d 784, 796 (D.C. Cir. 2012) (quoting
Boumediene, 553 U.S. at 796). We have repeatedly approved
ex parte filings as an essential procedural mechanism for
protecting classified information critical to national security.
See id.; Khan, 655 F.3d at 31 (noting that “where the source of
classified information is ‘highly sensitive’” it can be shown to
                               22
the court alone (quoting Parhat, 532 F.3d at 849)). As
discussed above, Al Hela’s cleared counsel had access to the
government’s factual return and supporting exhibits. When
denying Al Hela’s habeas petition, the district court relied on
the ex parte filings primarily to corroborate the reliability of
redacted sources underlying the intelligence reports available
to Al Hela’s counsel. See, e.g., Al Hela, No. 05-cv-1048,
unclass. slip op. at 26. We affirm the district court’s decision
to allow the government’s ex parte filings because such filings
are well within our precedents and Al Hela points to nothing in
the record suggesting an abuse of discretion.

     In the wake of Boumediene, Guantanamo detainees are
entitled to a “meaningful opportunity” to challenge the basis
for their detention, not a perfect one. The court is not tasked to
“administrate a complicated clash of adversarial viewpoints to
synthesize a process-dependent form of Hegelian legal truth.”
Al Bihani, 590 F.3d at 880. While courts in this context must
confirm the government acted within its authority, they must
apply Suspension Clause standards with sensitivity to national
security interests and with respect for the war powers vested in
the political branches. We are satisfied the district court
properly ensured Al Hela a “meaningful opportunity” to
challenge the basis for his detention on habeas review.

                               IV.

    Finally, Al Hela urges this court to extend the due process
protections of the Fifth Amendment to noncitizen detainees at
Guantanamo Bay. Relying on our decision in Qassim v. Trump,
927 F.3d 522 (D.C. Cir. 2019), Al Hela separates his due
process claim into two parts: first, a “substantive” challenge to
his indefinite detention; and second, several “procedural”
challenges to his habeas proceedings. We first set out the
                               23
framework for due process challenges and then address each of
Al Hela’s arguments in turn.

                               A.

     The Due Process Clause of the Fifth Amendment provides
“[n]o person shall … be deprived of life, liberty, or property,
without due process of law.” U.S. CONST. amend. V. The
Amendment’s protections apply to all “person[s]” within the
United States, citizens and noncitizens alike. Mathews v. Diaz,
426 U.S. 67, 77–80 (1976); see also Yick Wo v. Hopkins, 118
U.S. 356, 369 (1886) (“The[] provisions [of the Fourteenth
Amendment] are universal in their application, to all persons
within the territorial jurisdiction.”). In Johnson v. Eisentrager,
the Court held the Fifth Amendment does not apply to aliens
located outside the United States: “[T]he Constitution does not
confer a right of personal security or an immunity from military
trial and punishment upon an alien enemy engaged in the
hostile service of a government at war with the United States.”
339 U.S. 763, 785 (1950); see also United States v. Curtiss-
Wright Export Corp., 299 U.S. 304, 318 (1936) (“Neither the
Constitution nor the laws passed in pursuance of it have any
force in foreign territory unless in respect of our own
citizens.”).

    Eisentrager addressed whether the Fifth Amendment
applies to aliens abroad—specifically, enemy combatants
detained by American military forces in Germany. In
answering this question categorically in the negative, the Court
noted:

       If the Fifth Amendment confers its rights on all
       the world except Americans engaged in
       defending it, the same must be true of the
       companion civil-rights Amendments, for none
       of them is limited by its express terms,
                               24
       territorially or as to persons. Such
       a construction … could require the American
       Judiciary to assure them freedoms of speech,
       press, and assembly as in the First Amendment,
       right to bear arms as in the Second, security
       against ‘unreasonable’ searches and seizures as
       in the Fourth, as well as rights to jury trial as in
       the Fifth and Sixth Amendments.

       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 government is
       opposed to it.

339 U.S. at 784–85 (citation omitted). Building on earlier
cases, the Court held in no uncertain terms that the Fifth
Amendment could not be interpreted to apply to aliens outside
the territory of the United States. Id. at 785. In reaching this
conclusion, the Court explicitly rejected the decision and
reasoning of this court, which interpreted the term “person” to
cover “any person who is deprived of his liberty by officials of
the United States.” Eisentrager v. Forrestal, 174 F.2d 961, 963
(D.C. Cir. 1949); see also id. at 965 (reasoning that
“constitutional prohibitions … are not conditioned upon
persons or territory”).

    The Supreme Court has repeatedly affirmed Eisentrager’s
holding as to the Fifth Amendment and its Due Process Clause.
See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“It is well
                               25
established that certain constitutional protections available to
persons inside the United States are unavailable to aliens
outside of our geographic borders. But once an alien enters the
country, the legal circumstance changes, for the Due Process
Clause applies to all ‘persons’ within the United States.”
(citing, inter alia, Eisentrager, 339 U.S. at 784)); United States
v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (“Indeed, we
have rejected the claim that aliens are entitled to Fifth
Amendment rights outside the sovereign territory of the United
States.” (citing Eisentrager, 339 U.S. at 770, 784)). Just this
past Term, the Supreme Court noted that, subject to tightly
limited exceptions, “it is long settled as a matter of American
constitutional law that foreign citizens outside U.S. territory do
not possess rights under the U.S. Constitution.” USAID v. All.
for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (citing,
inter alia, Eisentrager, 339 U.S. at 784–85); see also DHS v.
Thuraissigiam, 140 S. Ct. 1959, 1982 (2020) (rejecting
application of Due Process Clause to non-resident aliens as
“contrary to more than a century of precedent”). Today, as
when Eisentrager was decided, extraterritorial application of
the Fifth Amendment would constitute a significant innovation
at odds with longstanding precedent and the Constitution’s
separation of powers.

     Relying on Eisentrager and its progeny, this court has
consistently refused to extend extraterritorial application of the
Due Process Clause. See, e.g., Kiyemba I, 555 F.3d at 1026–27
(“[T]he due process clause does not apply to aliens without
property or presence in the sovereign territory of the United
States.” (citing, inter alia, Eisentrager, 339 U.S. at 783–84));
Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004) (“The
Supreme Court has long held that non-resident aliens who have
insufficient contacts with the United States are not entitled to
Fifth Amendment protections.” (citing, inter alia, Eisentrager,
339 U.S. at 771)); 32 Cnty. Sovereignty Comm. v. Dep’t of
                              26
State, 292 F.3d 797, 799 (D.C. Cir. 2002) (“[A] foreign entity
without property or presence in this country has no
constitutional rights, under the due process clause or
otherwise.” (quoting People’s Mojahedin Org. of Iran v. Dep’t
of State, 182 F.3d 17, 22 (D.C. Cir. 1999))); Nat’l Council of
Resistance of Iran v. Dep’t of State, 251 F.3d 192, 201–02
(D.C. Cir. 2001) (holding foreign organizations possess due
process rights only if they develop “substantial connections”
within the United States (quoting Verdugo-Urquidez, 494 U.S.
at 271)); Harbury v. Deutch, 233 F.3d 596, 603–04 (D.C. Cir.
2000), rev’d on other grounds sub nom. Christopher v.
Harbury, 536 U.S. 403 (2002) (holding Verdugo-Urquidez and
Eisentrager foreclosed due process claim for actions taken
against alien abroad); Pauling v. McElroy, 278 F.2d 252, 254
n.3 (D.C. Cir. 1960) (per curiam) (“The non-resident aliens
here plainly cannot appeal to the protection of the Constitution
or laws of the United States.” (citing Eisentrager, 339 U.S. at
763)). With this framework in mind, we proceed to Al Hela’s
due process claims.

                              B.

     Al Hela argues the “substantive” component of the Due
Process Clause bars indefinite detention without trial and that
“his continued deprivation of liberty is excessive and is
therefore punitive.” Al Hela Unclass. Br. 62 (citing United
States v. Salerno, 481 U.S. 739, 747–48 (1987)); Al Hela
Unclass. Reply Br. 32, 35 (citing Foucha v. Louisiana, 504
U.S. 71, 80 (1992)). We need not assess whether Al Hela has
articulated a cognizable due process right because longstanding
precedent forecloses any argument that “substantive” due
process extends to Guantanamo Bay. See Ali v. Trump, 959
F.3d 364, 368–69 (D.C. Cir. 2020) (recognizing precedent
forecloses the argument that substantive due process applies to
Guantanamo Bay); Qassim, 927 F.3d at 528 (same); Kiyemba
                                 27
I, 555 F.3d at 1026 (“The due process clause does not apply to
aliens without property or presence in the sovereign territory of
the United States.”); see also Eisentrager, 339 U.S. at 785.
Al Hela is an alien held outside the sovereign territory of the
United States and therefore may not invoke the protections of
the Due Process Clause to challenge his detention.5

     The district court applied well established case law to
reject Al Hela’s due process arguments in the proceedings
below. Al Hela, No. 05-cv-1048, unclass. slip op. at 23–24. To
distinguish these precedents on appeal, Al Hela presses several
arguments that the Supreme Court’s decision in Boumediene
altered the longstanding rule barring extraterritorial application
of the Due Process Clause.

     First, Al Hela argues that Boumediene’s extension of the
Suspension Clause to Guantanamo Bay abrogated Eisentrager
because due process rights are implied by and inextricably
intertwined with access to the habeas writ. On this view, habeas
is a jurisdictional vehicle for presenting substantive claims
rooted in the Fifth Amendment, and Boumediene could not
have extended one without the other. Yet the Court in
Boumediene clearly differentiated between the Suspension and
Due Process Clauses and carefully limited its holding to the
Suspension Clause by noting “our opinion does not address the
content of the law that governs petitioners’ detention” and
“holds only that petitioners before us are entitled to seek the
5
  The U.S. Naval Station at Guantanamo Bay “is not part of the
sovereign territory of the United States.” Kiyemba I, 555 F.3d at 1026
n.9; see also Boumediene, 553 U.S. at 754. Our court has adhered to
Eisentrager’s holding that the Fifth Amendment’s Due Process
Clause does not apply outside the territorial United States and
therefore cannot be invoked by detainees at Guantanamo Bay,
notwithstanding Boumediene’s holding that de facto sovereignty was
relevant to the extraterritorial reach of the Suspension Clause.
                                28
writ.” 553 U.S. at 795, 798. The Court also recognized the
exceptional nature of its holding, recognizing “[i]t is true that
before today the Court has never held that noncitizens detained
by our Government in territory over which another country
maintains de jure sovereignty have any rights under our
Constitution.” Id. at 770.

     In Boumediene, the Court established for the first time that
the Suspension Clause guarantees Guantanamo detainees
a “meaningful opportunity” to challenge their detention before
a court with “the power to order the conditional release of an
individual unlawfully detained.” Id. at 779. Thus, a writ of
habeas corpus provides a procedure—a “mechanism” or
a “device”—that detainees may use to challenge their
detention. Id. at 740, 743, 745, 765; see also id. at 798
(“[P]etitioners may invoke the fundamental procedural
protections of habeas corpus.”); id. at 802 (Roberts, C.J.,
dissenting) (“Habeas is most fundamentally a procedural right,
a mechanism for contesting the legality of executive
detention.”); Hawk v. Olson, 326 U.S. 271, 274 (1945)
(“[H]abeas corpus … is a proper procedure ‘to safeguard the
liberty of all persons within the jurisdiction of the United States
against infringement through any violation of the
Constitution.’” (citation omitted)). The writ also provides
a judicial remedy, namely, the power to order “conditional
release” when the Executive has exceeded its recognized
detention authority, which here primarily rests on the AUMF
and the 2012 NDAA. Boumediene, 553 U.S. at 779.

     Beyond extending the writ’s procedure and remedy,
however, the Supreme Court explicitly “disclaimed any
intention to disturb existing law governing the extraterritorial
reach of any constitutional provisions, other than the
Suspension Clause.” Rasul v. Myers, 563 F.3d 527, 529 (D.C.
Cir. 2009) (per curiam) (citing Boumediene, 553 U.S. at 798);
                                 29
accord Al Bahlul v. United States, 840 F.3d 757, 796 (D.C. Cir.
2016) (en banc) (Millett, J., concurring); Ali v. Rumsfeld, 649
F.3d 762, 771 (D.C. Cir. 2011).

     Second, Al Hela argues Boumediene established
a universal three-factor test for the extraterritorial extension of
constitutional rights, and that under this test we must extend the
Due Process Clause of the Fifth Amendment to Guantanamo
Bay. Since Boumediene derived the factors of its “functional
test” from “pragmatic concerns” animating the Eisentrager
decision, Al Hela maintains we should distinguish Eisentrager
by concluding that these factors apply differently to
Guantanamo Bay, Cuba, than they did to Landsberg Prison,
Germany. This argument overshoots the mark. Boumediene did
not create a new framework for lower courts to incorporate
constitutional rights beyond our nation’s borders. See Rasul,
563 F.3d at 529 (rejecting the argument that “Boumediene
prescribes a multi-factor ‘functional’ test to determine whether
aliens” can invoke constitutional rights).6


6
   In support of a wider application of the functional test in
Boumediene, Al Hela points to separate opinions in Al Bahlul that
stated the Ex Post Facto Clause would apply to Guantanamo Bay in
light of Boumediene. See Al Bahlul v. United States, 767 F.3d 1, 63,
65 n.3 (D.C. Cir. 2014) (en banc) (Kavanaugh, J., concurring in the
judgment in part and dissenting in part); see also id. at 49 (Rogers,
J., concurring in the judgment in part and dissenting). The en banc
court, however, explicitly declined to decide the issue and instead
relied on the government’s concession that Al Bahlul was entitled to
bring ex post facto claims. See id. at 18 (“[W]e will assume without
deciding that the Ex Post Facto Clause applies at Guantanamo. In so
doing, we are ‘not to be understood as remotely intimating in any
degree an opinion on the question.’” (citations omitted)). Moreover,
in Al Bahlul we had no occasion to consider the extraterritoriality of
the Due Process Clause, the issue presented for decision here.
                                 30
     To be sure, Boumediene applied a “functional test” to
determine when and where the Suspension Clause follows
United States forces abroad. See 553 U.S. at 766 (“[W]e
conclude that at least three factors are relevant in determining
the reach of the Suspension Clause.”). But nothing in
Boumediene suggests this functional test applies beyond the
Suspension Clause. To the contrary, the Court emphasized the
limited and exceptional nature of its holding, a conclusion
bolstered by the fact that the Court has never applied
Boumediene’s “functional test” to any other constitutional
provision. Nor has this court applied Boumediene to
constitutional provisions other than the Suspension Clause or
extended the extraterritorial reach of the Suspension Clause
beyond Guantanamo Bay. See Al Maqaleh, 605 F.3d at 99
(finding the Suspension Clause inapplicable to alien detainees
at Bagram Airfield in Afghanistan); see also Al Maqaleh v.
Hagel, 738 F.3d 312, 323–35 (D.C. Cir. 2013), vacated in part
sub nom. Al Najar v. Carter, 575 U.S. 908 (2015) (reaffirming
inapplicability of the Suspension Clause to Bagram Airfield
despite new factual developments).7


7
   Other courts of appeals have recognized similar limits to
Boumediene’s reach. See, e.g., Thuraissigiam v. DHS, 917 F.3d
1097, 1111–12 (9th Cir. 2019), rev’d on other grounds 140 S. Ct.
1959 (2020) (“Although often conflated, the rights protected by the
Suspension Clause are not identical to those under the Fifth
Amendment’s guarantee of due process. … Boumediene itself clearly
recognized the distinction between the Fifth Amendment’s due
process rights and the Suspension Clause.”); Hernandez v. Mesa, 885
F.3d 811, 817 (5th Cir. 2018) (en banc) (“[E]ven nine years later, no
federal circuit court has extended the holding of Boumediene either
substantively to other constitutional provisions or geographically to
locales where the United States has neither de facto nor de jure
control. Indeed, the courts have unanimously rejected such
extensions.”); Ameur v. Gates, 759 F.3d 317, 324 (4th Cir. 2014)
                                 31
     Al Hela effectively asks us to expand Boumediene and
abrogate Eisentrager as well as longstanding circuit precedent.
Yet Boumediene recognized only the availability of habeas
relief to detainees in Guantanamo Bay. The “Privilege of the
Writ of Habeas Corpus” is a “procedural protection” for
challenging unlawful detention but does not include
substantive rights. Boumediene, 553 U.S. at 798. The Court
addressed only the availability of the writ and specifically
declined to go further. Therefore, Eisentrager and the cases
that follow remain good law, and we have no authority to
undermine or to ignore controlling decisions of the Supreme
Court. Rather, lower courts “should follow the case which
directly controls, leaving to [the Supreme] Court the
prerogative of overruling its own decisions.” Agostini v.
Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas
v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989)).

     Our concurring colleague contends that applying these
well established precedents barring extraterritorial application
of “substantive” due process is an “additional ground” that we
need not reach. Concurring Op. 3 (Griffith, J.). Yet it is unclear
how applying binding precedent to answer a threshold question
is a “new ground” when compared with the concurrence’s
resolution of difficult constitutional questions “on the merits.”
Id. at 2–8. The concurrence goes astray by interpreting Qassim
and Ali as implicitly extending “substantive” due process to
detainees at Guantanamo Bay. In Qassim, we explicitly
acknowledged that prior decisions of our court barred
application of “substantive” due process and questioned only


(“Boumediene relied on law exclusive to habeas corpus and therefore
should be applied only to the habeas-corpus context in which it
arose.”); Igartua v. United States, 626 F.3d 592, 600 (1st Cir. 2010)
(“[T]he Boumediene court was concerned only with the Suspension
Clause, and not with … any other constitutional text.”).
                              32
“what constitutional procedural protections apply to the
litigation of a detainee’s habeas corpus petition in the first
instance.” 927 F.3d at 524 (emphasis added); see also id. at 530
(collecting cases for the proposition that “no subsequent
decision of this court has read Kiyemba [I] as walling off
Guantanamo Bay detainees from all constitutional procedural
protections”). Likewise, in Ali, we rejected the argument that
“substantive” due process applies to Guantanamo Bay, which
we concluded would run “crosswise with this court’s decision
in Kiyemba [I].” 959 F.3d at 369. The concurrence extends our
court’s limited reservation of whether “procedural” due
process applies at Guantanamo Bay to now reserve the question
of whether “substantive” due process may apply at
Guantanamo Bay. With the rallying cry of judicial restraint, the
concurrence would thus open a gaping hole in the foundation
of our longstanding due process jurisprudence.

     The Supreme Court has not revisited the extraterritorial
application of the Due Process Clause. Accordingly, we have
taken the Supreme Court at its word that Boumediene
concerned only the availability of the writ of habeas corpus.
See, e.g., Ali, 649 F.3d at 771 (noting in a qualified immunity
context that the applicability of due process rights to
Guantanamo is not clearly established); Al Madhwani v.
Obama, 642 F.3d 1071, 1077 (D.C. Cir. 2011) (noting on
habeas review that our court has rejected the application of due
process rights to Guantanamo). While we must enforce
constitutional limits on the Executive Branch in this context as
in any other, it would be well beyond our authority to extend
or to create new constitutional limits on the conduct of wartime
detention by the political branches.
                                33
                                C.

     Al Hela further argues that three of the district court’s
discovery and evidentiary rulings—the same three he
challenges under the Suspension Clause—violated
“procedural” due process. Al Hela seeks to expand on
a suggestion in Qassim v. Trump that precedent might not
explicitly foreclose the extraterritorial application of
“procedural” due process requirements. See 927 F.3d at 530. In
Qassim, we noted for the first time that whether the
constitutional procedural protections applicable to habeas
review derive from “the Fifth Amendment’s Due Process
Clause, the Suspension Clause, both, or elsewhere” is an “open
and unresolved” question. Id. Yet we declined to resolve the
issue in that instance because the “parties never tested the
disclosure procedures in the case management and protective
orders.” Id. at 531. Further, the government had conceded on
appeal that “some of the sought-after information may properly
be disclosed” under the case management order and existing
law. Id. at 525. With the benefit of full briefing and “specific
discovery requests [that were] made and ruled upon,” id. at
531, this case squarely presents the question whether
procedural due process applies extraterritorially.

                                1.

    Before reaching that threshold question, however, we must
address the government’s contention that we need not decide
whether procedural due process applies extraterritorially
because the district court satisfied all applicable procedural due
process requirements. Courts should not decide constitutional
questions when alternative grounds for decision are fairly
available. See Lyng v. Nw. Indian Cemetery Protective Ass’n,
485 U.S. 439, 445 (1988) (“A fundamental and longstanding
principle of judicial restraint requires that courts avoid reaching
                               34
constitutional questions in advance of the necessity of deciding
them.”); Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (“[W]e
must have ‘due regard to the fact that this Court is not
exercising a primary judgment but is sitting in judgment upon
those who also have taken the oath to observe the
Constitution.’” (citation omitted)). This principle applies with
particular force in the context of foreign affairs and national
security, which are entrusted to the political branches and
should be approached by the judiciary with great care. See
Trump v. Hawaii, 138 S. Ct. 2392, 2419–20 (2018) (“‘Any rule
of constitutional law that would inhibit the flexibility’ of the
President ‘to respond to changing world conditions should be
adopted only with the greatest caution,’ and our inquiry into
matters of … national security is highly constrained.” (quoting
Diaz, 426 U.S. at 81–82)). Our court has taken this approach in
several other cases by assuming a threshold constitutional point
and then determining the case on other grounds. See, e.g.,
Aamer v. Obama, 742 F.3d 1023, 1039 (D.C. Cir. 2014);
Al Madhwani, 642 F.3d at 1077; Rasul, 563 F.3d at 529. But
see Thuraissigiam, 140 S. Ct. at 1981–83 (rejecting due process
claims by deciding the threshold question whether non-resident
aliens are entitled to constitutional due process protections).

     In this case, however, we would be forced to decide
difficult constitutional questions regardless of which path we
take. Even if we were to assume without deciding that
“procedural” due process could be separated from
“substantive” due process and applied extraterritorially, the
procedural standards are not clearly settled in this specific
context. “[D]ue process is flexible and calls for such procedural
protections as the particular situation demands.” Morrissey v.
Brewer, 408 U.S. 471, 481 (1972). When analyzing due
process claims, courts generally consider “(A) the private
interest affected; (B) the risk of erroneous deprivation of that
interest through the procedures used; and (C) the governmental
                               35
interest at stake.” Nelson v. Colorado, 137 S. Ct. 1249, 1255
(2017) (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
In the context of wartime detention, the Court has stated that a
citizen detained within the territorial United States “must
receive notice of the factual basis for his classification, and a
fair opportunity to rebut the Government’s factual assertions
before a neutral decisionmaker.” Hamdi, 542 U.S. at 533
(plurality opinion).

     No previous decision of this court or the Supreme Court
has set forth the particular procedural due process standards
that would apply to aliens detained abroad. This is likely
because, prior to Qassim, this court never suggested
a separation between the extraterritorial application of
“procedural” and “substantive” due process. Instead, our court
and the district courts have developed procedures for
meaningful habeas review under the Suspension Clause in the
wake of Boumediene. Here, while readily resolved under our
habeas standards, see supra Part III, at least two of Al Hela’s
procedural due process claims raise questions not squarely
addressed by due process precedents and would require that we
articulate and apply distinct constitutional standards. Assuming
without deciding the extraterritorial reach of “procedural” due
process therefore does not allow us to avoid deciding Al Hela’s
challenges on constitutional grounds.

     First, Al Hela claims the district court violated due process
by crediting anonymous, multi-layered hearsay in the
intelligence reports offered by the government. The district
court deemed the evidence reliable after ex parte, in camera
consideration of underlying sources and materials. Al Hela, No.
05-cv-1048, unclass. slip op. at 25–26. According to Al Hela,
this decision violated the constitutional bar on unreliable
evidence, see Al Hela Unclass. Br. 72 (citing Michigan v.
Bryant, 562 U.S. 344, 370 n.13 (2011)), as well as the due
                              36
process right to confront witnesses and evidence against him
when liberty is at stake, see id. at 72–73 (citing Gardner v.
Florida, 430 U.S. 349, 360–62 (1977), Morrissey, 408 U.S. at
485–86, and Specht v. Patterson, 386 U.S. 605, 608–09
(1967)). The government argues Hamdi held that hearsay
evidence is consistent with due process in the context of
wartime detention. But Hamdi’s observation that hearsay “may
need to be accepted as the most reliable available evidence
from the Government” falls short of conclusively allowing the
multiple layers of anonymous hearsay relied upon in this case.
542 U.S. at 533–34 (plurality opinion) (emphasis added).
Given the “flexible” and “particular” nature of the procedural
due process inquiry, Morrissey, 408 U.S. at 481, we would
need to identify what private interests Al Hela may assert as an
alien detained abroad and the competing interests of the
government with respect to national security. We cannot
simply assume the same interests and balance identified in
Hamdi, which involved a citizen detained on United States soil,
would apply to noncitizens detained outside the territory of the
United States.

     Second, Al Hela argues the district court violated due
process by denying him personal access to the charges and
evidence against him. Al Hela’s counsel received access to the
government’s factual return and supporting exhibits under a
protective order that barred discussing the information with his
client. Al Hela received little more than a short summary of the
classified material. Al Hela, 2016 WL 2771804, at *1. Al Hela
argues that this limited access deprived him of the ability to
rebut the government’s case with relevant evidence and
hamstrung his counsel’s ability to mount a defense. Al Hela
Unclass. Br. 68 (claiming the Due Process Clause guarantees
Guantanamo detainees a “reasonable opportunity to know the
claims of the opposing party and to meet them” (quoting
Morgan v. United States, 304 U.S. 1, 18 (1938))). While we
                               37
have conclusively rejected these claims and upheld similar case
management orders under the Suspension Clause, existing law
does not conclusively settle the question whether procedural
due process requires that Al Hela receive additional access to
the evidence against him under these circumstances.

     In order to assess Al Hela’s challenges on the merits, we
would need to create a distinct framework for procedural due
process in the Guantanamo detention context. We cannot
simply assume extraterritorial application here for the sake of
efficiency. Evaluating Al Hela’s claims would require the court
to assess constitutional questions including the scope of
Al Hela’s cognizable private interests, the government’s
interests in national security and protecting classified
information, and the proper balance of those interests in the
context of wartime detention.

     Our concurring colleague demonstrates the hazards of
assuming the applicability of constitutional due process rights.
Sidestepping the question whether “procedural” due process
applies extraterritorially to aliens, he would create out of whole
cloth a new standard defining what process is due to detainees
at Guantanamo Bay. Without explanation, he asserts that these
due process protections are coextensive with the process
required by the Suspension Clause and that “[a]nalyzing
Al Hela’s three specific claims under the Due Process Clause
adds nothing” to our analysis under the Suspension Clause.
Concurring Op. 7 (Griffith, J.). Yet we have never intimated
that these constitutional standards require the same protections,
either as a general matter or as to the specific confrontation and
evidentiary access claims Al Hela raised below. See, e.g.,
Boumediene, 553 U.S. at 785 (emphasizing “the Suspension
Clause remains applicable and the writ relevant” even when
procedures satisfy due process standards). The concurrence
would assume without deciding that “procedural” due process
                               38
applies to detainees at Guantanamo and then also decide the
particular content of the process owed. To declare that the
procedural requirements of the Due Process Clause are
applicable and equivalent to those of the Suspension Clause is
no act of judicial humility. It is a momentous constitutional
holding.8

    After Boumediene, the lower courts took up the Supreme
Court’s command to balance the right of detainees to
“meaningful review” of their habeas claims with the
government’s “legitimate interest in protecting sources and
methods of intelligence gathering,” all while according “proper
deference … to the political branches.” Boumediene, 553 U.S.
at 796; see Al Bihani, 590 F.3d at 870 (“The Supreme Court
has provided scant guidance on these questions, consciously
leaving the contours of the substantive and procedural law of
detention open for lower courts to shape in a common law
fashion.”). More than a decade later, this court and the district
court have developed a substantial body of law under the
Suspension Clause to govern habeas review for Guantanamo
detainees. The Supreme Court has declined further review.9
Assuming the extraterritorial application of “procedural” due
process hardly puts us on a narrow path, because such an

8
   The concurrence’s equation of two different constitutional
provisions runs against the reasoning of Qassim and Ali. In both
cases, our court left open the question whether “procedural” due
process protections extend to Guantanamo detainees. Such
a reservation would have been irrelevant if the standards for
“procedural” due process have always been the same as those under
the Suspension Clause. The concurrence’s conclusory assertions
simply have no basis in law.
9
  Congress has similarly left the field. Congress last articulated
standards for the review of detainee claims when it reaffirmed the
President’s AUMF detention authority in the 2012 NDAA.
                                 39
assumption would require us to create a standard specifically
for aliens detained abroad, forcing this court into unchartered
territory.10

                                 2.

     Rather than embark on a journey to discover new judicial
standards, we instead address the threshold question whether
the “procedural” component of the Due Process Clause applies
to aliens detained abroad—a question readily answered by
existing precedent.

     Al Hela maintains that Qassim interpreted Boumediene to
establish a distinction between “procedural” and “substantive”
due process such that procedural due process rights apply to
detainees at Guantanamo Bay. He argues that we must now
apply procedural due process rules developed in other contexts
to his habeas petition. Yet Qassim ushered in no such
constitutional revolution. In that case, we repeatedly noted that
deciding procedural due process questions would be
“premature,” 927 F.3d at 530, and remanded for the district
court to consider “Qassim’s claimed constitutional right to
access the classified information in the government’s hands
and the constitutional source (if any) of such a right,” id. at 525.
We explicitly declined to determine whether Qassim had
procedural due process rights and, if so, the content and
application of such rights. We held the district court applied
“an erroneous legal framework” when it assumed, without
further analysis of the question, that Kiyemba I’s broad
10
   Nothing in this opinion should be construed to affirmatively
suggest that Al Hela’s procedural due process claims would be
successful if he were entitled to the Fifth Amendment’s protections.
We merely note that the questions presented would be ones of first
impression and that existing precedent would not directly resolve his
constitutional challenges.
                                  40
statements of law must be read as “a categorial bar on
constitutional procedural protections in habeas litigation for
foreign detainees at Guantanamo Bay.” Id. at 527–28.

     Qassim did not, however, identify or create a new legal
framework. Rather, we remanded for the district court to
consider in the first instance “whether and how the Due Process
Clause applies,” id. at 528, and noted “[c]ircuit precedent
leaves open and unresolved the question of what constitutional
procedural protections apply to the adjudication of detainee
habeas corpus petitions,” id. at 530; accord Ali, 959 F.3d at 368
(“Circuit precedent has not yet comprehensively resolved
which ‘constitutional procedural protections apply’ … and
whether those ‘rights are housed’ in the Due Process Clause,
the Suspension Clause, or both.” (quoting Qassim, 927 F.3d at
530)). Qassim’s suggestion that procedural due process might
apply to detainees at Guantanamo Bay was, as the panel
emphasized, based on an incomplete record and briefing. 927
F.3d at 531–32.

     The question whether procedural due process applies
extraterritorially is not premature here because Al Hela raised
it below, both before and during his merits hearing.11

11
  Al Hela sought access to the government’s ex parte filings on the
grounds that withholding the information constituted a “violation of
due process.” See Al Hela Unclass. Reply Br. 33–34 (citing Dkts.
294, 299); Order of Nov. 19, 2014, Al Hela, No. 05-cv-1048. He also
sought personal access to classified information in the government’s
factual return. Al Hela, No. 05-cv-1048, 2016 WL 2771804, at *1.
Finally, he argued that his indefinite detention violated “substantive”
due process and that the hearsay evidence against him was
insufficiently reliable to support detention. See Al Hela, No. 05-cv-
1048, unclass. slip op. at 23–28. Al Hela raised each of these
objections during or prior to a full hearing on the merits of whether
the government’s evidence supported his detention. This
                                 41
Moreover, the issue is a pure question of law on which we have
detailed briefing and the benefit of both open and closed oral
argument to discuss the implications of the unclassified and
classified records in this case. Unlike in Qassim, remand to the
district court is unnecessary. With the constitutional question
squarely before us, we conclude that the protections of the Due
Process Clause, whether labeled “substantive” or “procedural,”
do not extend to aliens without property or presence in the
sovereign territory of the United States.

     Resolving the constitutional question raised by Qassim
requires a more exhaustive consideration of Supreme Court and
circuit precedent.12 We begin with Eisentrager, in which the
Supreme Court focused on the meaning of the term “person” in
the Fifth Amendment, rejecting our court’s conclusion that the
term encompasses aliens abroad. See Eisentrager, 339 U.S. at
781–84, rev’g Eisentrager, 174 F.2d at 963. The Supreme
Court’s conclusion remains true no matter what kind of due
process is at issue.


distinguishes the instant case from Ali, for example, which did not
involve a hearing on the merits of the evidence supporting detention
but instead considered the petitioner’s argument that the government
owed him additional process to justify the duration of detention. 959
F.3d at 371–72. Al Hela’s specific challenges to evidentiary and
discovery rulings by the district court provide an adequate record to
resolve whether “procedural” due process protections apply
extraterritorially.
12
  Qassim held only that the district court resolved a habeas petition
under an “erroneous legal framework” when it misapplied our
decision in Kiyemba I to foreclose “procedural” due process claims.
927 F.3d at 527. Thus, Qassim did not examine other circuit
precedents or the Supreme Court’s holding in Eisentrager, except to
note that Kiyemba I did not directly address “procedural” due
process. Id. at 529 n.5.
                               42
     Indeed, Eisentrager made no distinction between
“substantive” and “procedural” due process, nor between the
Due Process Clause and other provisions of the Fifth
Amendment. Rather in Eisentrager, the Court built on earlier
precedents that declined to review the adequacy of procedures
granted to enemy combatants and limited judicial inquiry to
whether the government acted within its authority. See, e.g., In
re Yamashita, 327 U.S. 1, 23 (1946); Ex parte Quirin, 317 U.S.
1, 25 (1942). The Supreme Court’s reasoning barring
extraterritorial application of the Due Process Clause applied
without distinction, and therefore with equal force, to
“substantive” and “procedural” claims.

     The Court’s more recent decisions have relied upon
Eisentrager without distinguishing between substance and
procedure. In Zadvydas, for example, the Court considered
both “substantive” and “procedural” due process issues related
to detention of aliens within the United States and cited
Eisentrager as foreclosing the extraterritorial application of the
Due Process Clause as a whole. See 533 U.S. at 690–94.
Likewise in Verdugo-Urquidez, the Court noted Eisentrager’s
“rejection of extraterritorial application of the Fifth
Amendment was emphatic” and understood its holding to cover
the “Fifth Amendment rights” of aliens outside the United
States without recognizing any distinction between the
“substantive” and “procedural” components of those rights.
494 U.S. at 269. And recently the Court relied on Eisentrager
and its progeny to declare without any distinction between
“substantive” and “procedural” rights that “foreign citizens
outside U.S. territory do not possess rights under the U.S.
Constitution.” All. for Open Soc’y, 140 S. Ct. at 2086 (citing,
inter alia, Eisentrager, 339 U.S. at 784). Were this not the rule,
“actions by American military, intelligence, and law
enforcement personnel against foreign organizations or foreign
citizens in foreign countries would be constrained by the
                               43
foreign citizens’ purported rights.” Id. (citing, inter alia,
Eisentrager, 339 U.S. at 784–85).

     Similarly, this circuit has consistently cited Eisentrager
for the proposition that procedural due process protections are
unavailable to aliens and organizations without property or
presence in the United States. For example, we rejected
a foreign entity’s challenge to the Secretary of State’s terrorism
designation because the foreign entity was not entitled to
procedural due process protections. See 32 Cnty. Sovereignty
Comm., 292 F.3d at 799; see also People’s Mojahedin, 182
F.3d at 22. After Boumediene, our court continued to
understand the Eisentrager rule as foreclosing extraterritorial
application of the Due Process Clause in its entirety. In the
Rasul litigation, we categorically rejected procedural due
process claims brought by Guantanamo detainees in a decision
later vacated in light of Boumediene. See Rasul v. Myers, 512
F.3d 644, 663–65 (D.C. Cir.), vacated by 555 U.S. 1083
(2008). On remand, we reaffirmed our pre-Boumediene
rejection of the claims on the same ground, concluding that the
Court had done nothing to disrupt its holding in Eisentrager
that the Fifth Amendment and its Due Process Clause are
inapplicable to aliens abroad. See 563 F.3d at 529, cert. denied
558 U.S. 1091 (2009). Likewise, in Al Madhwani, we
considered a procedural due process challenge to improper
reliance on evidence outside the record. We noted “[t]his Court
has ... stated that the detainees [at Guantanamo Bay] possess
no constitutional due process rights” before resolving the case
on the narrower ground that the district court had not in fact
relied on the evidence. 642 F.3d at 1077 (quoting Kiyemba v.
Obama, 561 F.3d 509, 518 n.4 (D.C. Cir. 2009) (“Kiyemba II”)
(Kavanaugh, J., concurring)). In Qassim, we noted that our
decision in Kiyemba I applied Eisentrager to address
a remedial question pertaining to petitioners’ release. 927 F.3d
at 529 & n.5 (quoting Kiyemba I, 555 F.3d at 1026–27). That
                              44
observation, however, did not unravel our longstanding
precedent in this area. After Boumediene, our court’s detention
decisions have not distinguished between the extraterritorial
reach of “substantive” and “procedural” due process.

    Thus, except for the question raised but not answered by
Qassim, neither the Supreme Court nor this court have
recognized or suggested any grounds for a legal distinction
between the extraterritorial application of “substantive” and
“procedural” due process rights. Rather, the Supreme Court
and this circuit have asserted that the Fifth Amendment and its
Due Process Clause more specifically do not extend to aliens
without property or presence in the United States.

     In the course of deciding dozens of Guantanamo detainee
cases, we have on occasion assumed without deciding that
certain due process rights might apply to Guantanamo. See
Qassim, 927 F.3d at 530. In those cases, we chose to decide the
claims on grounds other than the threshold question of
extraterritoriality. See Aamer, 742 F.3d at 1039–41 (assuming
without deciding that the right to be free from unwanted
medical treatment applies but denying the claim as foreclosed
by precedent); Al Madhwani, 642 F.3d at 1077 (finding that
even if procedural due process applied, any error would be
harmless beyond a reasonable doubt because it did not impact
the district court’s decision); Rasul, 563 F.3d at 529–30
(rejecting due process and Eighth Amendment claims on
qualified immunity grounds); Kiyemba II, 561 F.3d at 514 &
n.4 (rejecting due process challenge to Executive transfer
determination as clearly foreclosed by precedent). Those cases,
which explicitly declined to decide the issue, may not now be
used to support the extraterritorial extension of procedural due
process rights. The Supreme Court has consistently barred
extraterritorial application of the Due Process Clause. Repeated
                               45
reservation of a legal question cannot later settle that question
and unravel binding Supreme Court precedent.

     Al Hela places great weight on language in Qassim noting
that Boumediene “pointed to” both the Due Process and
Suspension Clauses when discussing the scope of habeas
review. 927 F.3d at 529. Nonetheless, the Supreme Court never
suggested the Due Process Clause applies to Guantanamo
detainees. Boumediene, 553 U.S. at 785. Instead, the Court
focused on determining the “necessary scope of habeas
review,” which it noted would “in part depend[] upon the rigor
of any earlier proceedings.” Id. at 781. Thus, the Court did not
incorporate or develop any procedural due process standards or
elaborate on the applicability or scope of such standards, but
instead focused its analysis entirely on the extent of habeas
review. Boumediene explained that the Suspension Clause
imposes distinct requirements for habeas review in the context
of wartime detention and tasked the lower courts with
developing standards for that review. Id. at 798. Procedures
developed by this court and the district court after Boumediene
have provided for “meaningful review” of the lawfulness of
detention at Guantanamo Bay. The Supreme Court has
repeatedly denied certiorari in cases challenging these
procedures. See, e.g., Hussain v. Obama, 572 U.S. 1079
(2014); Al Madhwani v. Obama, 567 U.S. 907 (2012); Kiyemba
v. Obama, 563 U.S. 954 (2011); Al Bihani v. Obama, 563 U.S.
929 (2011); Rasul v. Myers, 558 U.S. 1091 (2009).
Determining that procedural due process rights apply
extraterritorially would require us to read Boumediene to
effectuate an implied repeal of Eisentrager and its progeny. In
the absence of direction from the Supreme Court, we decline to
reverse binding precedent and extend new constitutional
protections to alien detainees at Guantanamo Bay.
                               46
      At bottom, Al Hela presses us to recognize and create
a new body of constitutional law for alien detainees held
outside the sovereign territory of the United States. Yet judicial
innovation in this sphere would have far reaching
consequences for the government’s detention and national
security policies in this and future wars. As the Supreme Court
has explained, we must accord “proper deference … to the
political branches” when assessing “detention to prevent acts
of terrorism.” Boumediene, 553 U.S. at 796. Our court has
carefully followed this command by declining to craft
additional judicial standards to govern the War on Terror. See,
e.g., Al Maqaleh, 738 F.3d at 335 (“[R]espect for the separation
of powers impels us to stay our hand.”). Instead, for over
a decade we have faithfully applied the Supreme Court’s
directive in Boumediene by developing a distinct body of law
that guarantees a “meaningful opportunity” for habeas review
while respecting the national security prerogatives of the
political branches. The Executive Branch has relied upon these
procedural standards and neither Congress nor the Supreme
Court have suggested we should embellish further
constitutional limits on the detention of terrorists abroad.

      Under longstanding precedents of this court and the
Supreme Court, the Due Process Clause cannot be invoked by
Guantanamo detainees, whether those due process rights are
labeled “substantive” or “procedural.” The Suspension Clause
provides all the process to which Al Hela is entitled. Thus, we
reject Al Hela’s due process claims on the threshold
determination that, as an alien detained outside the sovereign
territory of the United States, he may not invoke the protection
of the Due Process Clause.
                              47
                          *    *   *

     Al Hela’s detention falls within the scope of the
President’s authority, and the district court’s habeas procedure
comported with applicable constitutional requirements. The
order denying Al Hela’s petition for a writ of habeas corpus is
affirmed.

                                                    So ordered.
     GRIFFITH, Circuit Judge, concurring in part and concurring
in the judgment: “[T]he cardinal principle of judicial restraint”
is that “if it is not necessary to decide more, it is necessary not
to decide more.” PDK Labs. Inc. v. U.S. Drug Enf’t Agency,
362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in
part and concurring in the judgment). With that principle in
mind, I concur only in Parts I, II, and III of the court’s opinion.
Because we can resolve this case without deciding whether
Guantanamo detainees may ever assert rights under the Due
Process Clause, I do not join Part IV.

     Al Hela brings two sets of challenges under the Due
Process Clause—a substantive challenge to the length of his
detention and procedural challenges to the district court’s
evidentiary rulings. Like my colleagues, I would reject those
challenges. But unlike my colleagues, I would do so without
taking on the broader question of whether the Due Process
Clause applies at Guantanamo. That is a question with
immense sweep that our court has repeatedly reserved for a
case in which its answer matters. It does not here. Al Hela’s
challenge to the length of his detention fails under established
case law, regardless of whether he may bring that challenge
under the Due Process Clause in the first place. And his three
procedural challenges fail under our precedent developed
under the Suspension Clause in the wake of Boumediene v.
Bush, 553 U.S. 723 (2008). That precedent provides Al Hela as
much process as he would have been due under the Due Process
Clause with respect to his particular claims.

    “[E]ven when a constitutional question must be joined,
courts must choose the narrowest constitutional path to
decision.” Ass’n of Am. Railroads v. U.S. Dep’t of Transp., 896
F.3d 539, 544 (D.C. Cir. 2018). I cannot join the majority’s
decision to cut a wider path than necessary.
                                2
                                I

     Al Hela first argues that the length of his detention violates
his substantive due process rights. Our circuit has frequently
assumed without deciding that Guantanamo detainees may
assert due process rights before rejecting their claims on the
merits. See Ali v. Trump, 959 F.3d 364, 369-73 (D.C. Cir.
2020) (assuming that a detainee may bring due process
challenges to the length of his detention, the use of hearsay
evidence, and the standard of proof governing his detention and
rejecting those challenges on the merits); Aamer v. Obama, 742
F.3d 1023, 1038-42 (D.C. Cir. 2014) (assuming that the
substantive due process “right to be free from unwanted
medical treatment” applies at Guantanamo and rejecting
detainees’ claims on the merits); Kiyemba v. Obama, 561 F.3d
509, 514 n.4 (D.C. Cir. 2009) (assuming that detainees have the
same due process rights as U.S. citizens with respect to their
transfer to foreign custody and rejecting their claims on the
merits). Following that path here, we need not determine
whether Al Hela can invoke the protection of the Due Process
Clause because Ali forecloses his challenge to the length of his
detention on the merits. See 959 F.3d at 369-71. There, we
rejected a nearly identical claim, holding that “under binding
circuit precedent the Due Process Clause’s substantive
protections . . . offer [Ali] no help.” Id. at 369.

      Like Al Hela, Ali had argued that his detention had
become punitive over time and that its seemingly perpetual
duration violated the Due Process Clause. We disagreed.
Assuming Ali could bring this challenge, we held that “the fact
that hostilities have endured for a long time, without more, does
not render the government’s continued detention” unlawful. Id.
at 371. Given the ongoing conflict with Al Qaeda, “detention
still serves the established law-of-war purpose of preventing
captured individuals from returning to the field of battle.” Id.
                                3
at 370 (internal quotation marks and brackets omitted). Al Hela
contends that his detention no longer serves this preventive
purpose and has instead become unlawfully punitive. But just
as with Ali, the Executive Branch has reviewed Al Hela’s
detention no less than eight times, each time reaffirming that
he represents “a continuing significant threat to the security of
the United States.” Gov’t Unclass. Br. 55; see also Ali, 959
F.3d at 370 & n.3. Because the Government has repeatedly
found that Al Hela’s detention continues to serve this
preventive purpose, his challenge to the length of his
confinement fails under established case law.

     That is all the majority needed to say. Instead, the majority
goes further and finds Al Hela’s claim deficient on the
additional ground that he lacks any rights under the Due
Process Clause. The majority reads our precedent as
“foreclos[ing] any argument that ‘substantive’ due process
extends to Guantanamo Bay.” Maj. Op. at 26. But we have
never made such a far-reaching statement about the Clause’s
extraterritorial application. If we had, we would not have
repeatedly assumed without deciding that detainees could bring
substantive due process claims. See Qassim v. Trump, 927 F.3d
522, 530 (D.C. Cir. 2019) (collecting cases). Likewise, we
would not have evaluated Ali’s substantive challenge to the
length of his detention on the merits; we would have dismissed
it on the ground that he could not bring it at all. See Ali, 959
F.3d at 369-71. Partly in light of those repeated reservations,
we recently rejected the argument that our precedent imposed
a categorial bar on the application of the Due Process Clause at
Guantanamo, explaining that our decision in Kiyemba v.
Obama “ruled only that the Due Process Clause does not invest
detainees who have already been granted habeas corpus with a
substantive due process right to be released into the United
States.” See Qassim, 927 F.3d at 524 (emphasis added) (citing
Kiyemba v. Obama, 555 F.3d 1022 (D.C. Cir. 2009), vacated,
                               4
559 U.S. 131 (2010), judgment reinstated as amended, 605
F.3d 1046 (D.C. Cir. 2010)); see also Ali, 959 F.3d at 369
(rejecting only the argument that “the substantive protections
of the Due Process Clause apply across the board” because
Kiyemba bars detainees from claiming a “right to release into
the United States”) (emphasis added)).

     Because we can resolve Al Hela’s challenge to the length
of his detention on the same merits grounds as Ali, we need
not—and should not—add a new ground, especially one of the
vast scope endorsed by the majority. And if the majority feels
that it must break new ground, it should at least do so
forthrightly, acknowledging that it is taking a significant step
that our court has thus far declined to take.

                               II

    Al Hela next argues that three of the district court’s
evidentiary rulings violated his procedural rights under the Due
Process Clause and his right to a meaningful hearing under the
Suspension Clause. Again, we do not need to decide whether
the Due Process Clause applies at Guantanamo to resolve these
claims. “More than a decade of case law has defined the
procedures required to guarantee detainees the meaningful
opportunity for habeas review required by the Suspension
Clause,” and the district court’s rulings carefully followed that
precedent to ensure Al Hela had a meaningful hearing. Maj.
Op. at 18-22. Analyzing the district court’s rulings under the
Due Process Clause yields the same result.

     In each of the three areas of process that Al Hela
challenges (hearsay evidence, ex parte evidence, and lack of
personal access to the evidence), we have already afforded
detainees as much protection under the Suspension Clause as
we have afforded non-detainees in similar settings under the
                               5
Due Process Clause. Because Al Hela’s specific claims fail
under both clauses, it makes no difference whether detainees
like Al Hela may ever bring due process claims. The majority
thus had no occasion to reach out and bar all such claims today.

     To start, our Suspension Clause cases have long held that
hearsay evidence is admissible in habeas proceedings at
Guantanamo provided that it is reliable. See, e.g., Awad v.
Obama, 608 F.3d 1, 7 (D.C. Cir. 2010); Al-Bihani v. Obama,
590 F.3d 866, 879-880 (D.C. Cir. 2010). Citing that precedent
in Ali, we rejected a detainee’s challenge to the “use of hearsay
evidence during habeas corpus and other detention
proceedings” under the Due Process Clause. See Ali, 959 F.3d
at 372. That holding makes good sense; the Supreme Court has
suggested that the Due Process Clause would permit the
Government to rely on hearsay evidence to justify the detention
of even American citizens on sovereign U.S. soil during
wartime. Hamdi v. Rumsfeld, 542 U.S. 507, 533-34 (2004). The
protections we have developed for Guantanamo detainees
under the Suspension Clause provide no less, and under those
precedents, the district court found that the hearsay evidence
used against Al Hela was reliable.

     Likewise, our Suspension Clause precedent supports the
submission of ex parte evidence provided that the government
offers the detainee’s counsel “reasonable alternatives” that
provide a “meaningful opportunity” for review. Khan v.
Obama, 655 F.3d 20, 31 (D.C. Cir. 2011) (internal quotation
marks omitted). In applying that precedent, the district court
carefully “reviewed the [Government’s] proposed redactions,
approving some and requesting clarifications or justification of
others,” and rejected at least one proposed substitute “on the
grounds that it did not adequately represent the exculpatory
information in the exhibit.” Al Hela v. Trump, No. 05-cv-01048
(D.D.C. Jan. 13, 2017), Dkt. No. 413-1, at 1.
                               6

     Once again, the Due Process Clause would grant Al Hela
nothing more. The Due Process Clause allows “classified
information to be presented in camera and ex parte to the
court” in cases challenging a party’s designation as a “foreign
terrorist organization” or “drug kingpin.” Nat’l Council of
Resistance of Iran v. Dep’t of State, 251 F.3d 192, 208 (D.C.
Cir. 2001); see also Fares v. Smith, 901 F.3d 315, 324 (D.C.
Cir. 2018); People’s Mojahedin Org. of Iran v. Dep’t of State,
327 F.3d 1238, 1241-43 (D.C. Cir. 2003). Further, we have
held that “the United States enjoys a privilege in classified
information affecting national security so strong that even a
criminal defendant to whose defense such information is
relevant cannot pierce that privilege absent a specific showing
of materiality.” Nat’l Council, 251 F.3d at 207; see also United
States v. Yunis, 867 F.2d 617, 623-24 (D.C. Cir. 1989). Even
then, the court must not disclose the material unless it
“determine[s] that alternatives to disclosure would not
effectively substitute for unredacted access.” Al Odah v. United
States, 559 F.3d 539, 547 (D.C. Cir. 2009). So again, Al Hela’s
challenge fails under established case law.

     Finally, our precedent under the Suspension Clause
encourages the “search for reasonable alternatives” to
disclosure of classified information, including the use of
summaries that “accurately represent[] the information
contained in [classified] reports.” Khan, 655 F.3d at 31. We
have never held that a detainee must have unrestricted personal
access to the evidence against him to guarantee a meaningful
hearing under Boumediene. Similarly, we have never said that
the Due Process Clause requires such unrestricted personal
access in foreign-terrorist-organization and drug-kingpin
designation cases. And other circuits have approved limitations
on disclosure in criminal cases to security-cleared counsel
where the defendant had access to the “relevant facts set forth
                               7
in [the undisclosed] material.” In re Terrorist Bombings of U.S.
Embassies in E. Africa, 552 F.3d 93, 127 (2d Cir. 2008). Here,
the Government provided Al Hela with an unclassified
summary of many of the facts and allegations against him and
offered “specific and persuasive reasons to believe that further
disclosure . . . would risk revealing U.S. intelligence sources
and methods.” Al Hela v. Trump, No. 05-cv-01048 (D.D.C.
May 13, 2016), Dkt. No. 404, at 5. Whether assessed under the
Suspension Clause or the Due Process Clause, the district
court’s rulings provided Al Hela a meaningful opportunity for
review of his detention.

      That the Due Process Clause and the Suspension Clause
provide similar protections to Al Hela should come as no
surprise. We have developed an extensive body of case law
under the Suspension Clause that guarantees detainees “a
meaningful opportunity to demonstrate that [they are] being
held” unlawfully, while still respecting the government’s
“legitimate interest in protecting sources and methods of
intelligence gathering.” Boumediene, 553 U.S. at 779, 796. The
Due Process Clause requires us to conduct a similar balancing.
Under Mathews v. Eldridge, 424 U.S. 319 (1976), we weigh
the detainee’s interest in the “opportunity to be heard at a
meaningful time and in a meaningful manner,” Nat’l Council,
251 F.3d at 208 (internal quotation marks omitted), against the
government’s interest in protecting national security, see
Hamdi, 542 U.S. at 533-35. Analyzing Al Hela’s three specific
claims under the Due Process Clause adds nothing to the
analysis we have already conducted under Boumediene, as a
review of our due process case law demonstrates. Cf. Ali, 959
F.3d at 372 (finding several procedural due process claims
“foreclose[d]” by our Suspension Clause precedent). Although
it is possible that other procedural claims may fare better under
the Due Process Clause than under the Suspension Clause, we
need not address claims not before us today. Whether analyzed
                                8
under the Suspension Clause or the Due Process Clause, Al
Hela’s three specific objections fail. That is all the court needed
to say to resolve this case, and I would not say any more.

                              ***

     The majority argues that its decision is an exercise in
judicial restraint. Maj. Op. at 33-39. I respectfully disagree. It
is considerably more restrained to apply our established
precedents to Al Hela’s narrow claims than it is to make
sweeping proclamations about the Constitution’s application at
Guantanamo. Questions about the application of the
Constitution to Guantanamo have long divided judges on this
circuit. Compare Al Bahlul v. United States, 767 F.3d 1, 18 n.9
(D.C. Cir. 2014) (en banc) (noting that five judges would hold
that the Ex Post Facto Clause applied at Guantanamo under
Boumediene), and Ali, 959 F.3d at 369 (“Boumediene and
Qassim teach that the determination of what constitutional
procedural protections govern the adjudication of habeas
corpus petitions from Guantanamo detainees should be
analyzed on an issue-by-issue basis, applying Boumediene’s
functional approach.”), with Rasul v. Myers, 563 F.3d 527, 529
(D.C. Cir. 2009) (per curiam) (suggesting that Boumediene is
limited to the Suspension Clause). The day may yet come when
we need to resolve the matter because the case before us
demands it. But this is not that case. Because the Due Process
Clause would not provide Al Hela more procedural protections
than he received, the court today had no need to reach the
question of the Clause’s application at Guantanamo.
    RANDOLPH, Senior Circuit Judge, concurring: I agree with
the court’s decision not only for the reasons expressed in its
opinion, but also for the additional reasons stated in my opinion
concurring in the judgment in Ali v. Trump, 959 F.3d 364, 373
(D.C. Cir. 2020).
