AL QOSI v. UNITED STATES (2020)

PUBLISHED OPINION OF THE COURT

Once more, difficult questions of first impression confront us. Before taking up the merits of appellant Ibrahim Ahmed Mahmoud Al-Qosi's appeal seeking to overturn his conviction, we must decide two preliminary questions.¹ First, what is the extent, if at all, to which our inherent powers permit us to dismiss or abate Al-Qosi's appeal if he (a) is an alien unprivileged enemy belligerent currently engaged in hostilities against the United States and/or its coalition partners or (b) cannot be made to respond to any judgment we may render, or both? Second, if we have such inherent powers, and the factual record would support our use of these powers, should we exercise them?

There is a major impediment, however, to reaching these threshold questions and to even hearing an appeal. On the record before us, we cannot say that Al-Qosi has authorized any appeal or that defense counsel who seek to represent him are authorized to do so regarding an appeal and related proceedings. Until defense counsel can satisfactorily establish that Al-Qosi has authorized an appeal and has authorized specific counsel to represent him in that appeal and related matters, this case may not go forward.

Accordingly, for the reasons set forth in this order, the proceeding before us and all related matters are abated until defense counsel can demonstrate that Al-Qosi has (a) actual notice of these proceedings, (b) authorized an appeal and (c) authorized specific counsel to represent him in the matters pending before the Court, including any future DuBay or other hearings.²

BACKGROUND

In 2010, Al-Qosi pleaded guilty to, and was convicted of, one specification of “conspiracy to commit terrorism and provide material support for terrorism, and ․ [one specification] of providing material support to al Qaeda, a terrorist organization, in violation of 10 U.S.C. §§ 950t(29) and 950t(25) (2009).” United States v. Al-Qosi, 28 F. Supp. 3d 1198, 1200 (CMCR 2014). On August 11, 2010, the military commission sentenced Al-Qosi to confinement for fourteen years. Id. On February 3, 2011, the Convening Authority approved his sentence and, in compliance with his written pretrial agreement, suspended execution of all confinement in excess of two years from July 7, 2010. Id.; Convening Auth. Action (Feb. 3, 2011). At this point, Al-Qosi's conviction was final at the trial level, unless he timely requested a new trial.

Al-Qosi waived his right to appeal in his pretrial agreement. See Order 1 (CMCR Mar. 11, 2017); Al-Qosi, 28 F. Supp. 3d at 1201. On the day he was sentenced, Al-Qosi executed a written waiver of appellate rights. Appellant Br. 3 (Feb. 13, 2017). The Convening Authority did not refer his case to this Court for automatic review pursuant to 10 U.S.C. § 950c(a) because of the waiver. Order 1 (CMCR Mar. 11, 2017). There is no evidence, however, that Al-Qosi filed with the Convening Authority the written waiver of his appellant rights “within ten days following the convening authority's action on his case, as required by 10 U.S.C. § 950c(b)(3).” Al-Qosi, 28 F. Supp. 3d at 1202. On July 10, 2012, upon his release from confinement, “Al Qosi was transferred to his native Sudan.” Id. at 1200; see Tr. 45 (First DuBay July 12, 2017). As discussed below, his current whereabouts are unknown.

In February 2017, nearly five years later, two lawyers detailed by the Chief Defense Counsel (CDC), Military Commissions Defense Organization (MCDO), Suzanne M. Lachelier and Mary R. McCormick, filed a brief seeking to appeal Al-Qosi's conviction, asking this Court to vacate the judgment entered by the commission. Appellant Br. (Feb. 13, 2017); Order 1 (CMCR Mar. 11, 2017). His lawyers argue that (a) his waiver of appeal is ineffective and, as such, the Convening Authority was required to refer Al-Qosi's conviction to this Court and (b) we are now required to hear and decide his appeal under 10 U.S.C. § 950f. See Appellant Br. 5-6 (citing 10 U.S.C. § 950c). We sua sponte raised several issues that must be resolved before deciding whether to take up the proffered appeal; two concerned defense counsel.

First, is there an attorney-client relationship between Al-Qosi and the detailed lawyers, Ms. Lachelier and Ms. McCormick?³ See Order 3 (CMCR Mar. 11, 2017). Second, has Al-Qosi authorized the appeal? Id. We subsequently found that Ms. Lachelier has an attorney-client relationship with Al-Qosi based, in part, on her representations in a declaration filed ex parte, which discussed conversations Ms. Lachelier had with Al-Qosi between 2010 and 2012 that counsel identified as partially privileged.⁴ Order 1 (CMCR June 19, 2017); see Lachelier Decl. (redacted) (Mar. 23, 2017). We deferred, however, addressing whether Al-Qosi has authorized the appeal that counsel seeks to prosecute. Order 2 (CMCR June 19, 2017).

In our March 2017 order, we also wrote the press had reported that “since his release in 2012, al Qosi ha[d] joined Al-Qaida of the Arabian Peninsula and [ ] urged attacks on the United States.” Order 2 (CMCR Mar. 11, 2017). We noted that if the reports were true, the Court would need to address “[w]hat impact any post-release participation in hostilities against the United States or its coalition partners, if any, may have on the instant appeal.” Id.

In June 2017, we ordered a DuBay hearing (first DuBay hearing) “to make findings of fact and conclusions of law regarding whether (a) al Qosi is currently an unprivileged enemy belligerent, and (b) under present circumstances whether al Qosi can be made to respond to any judgment that the Court may render in response to his appeal.” Order 3 (CMCR June 19, 2017). We ordered this hearing to create a competent factual record upon which we could address “what inherent power this Court may or may not have [to abate or dismiss] al Qosi's appeal if he is an unprivileged enemy belligerent (as the Government contends), or [if he] cannot be made to respond to this Court's judgment.” Id. at 2.

We emphasize that we have made no decisions regarding whether this Court must hear Al-Qosi's appeal, if properly before us, or whether we have discretion to dismiss or abate any appeal.⁵

The military judge terminated the first DuBay hearing at its inception. Tr. 60 & AE 018 (First DuBay). Ms. Lachelier had asserted a conflict that precluded her from participating as counsel in the hearing. Tr. 37-38 (First DuBay). The CDC then detailed new lawyers to represent Al-Qosi at the hearing. Order 2 (CMCR Dec. 14, 2018). The military judge properly found that there was no attorney-client relationship between Al-Qosi and the new lawyers. Id. (citing AE 018 at 5). Therefore, the new lawyers could not represent Al-Qosi, and the hearing ended. Id.; AE 018 at 5-6.

We then entered an order in December 2018 directing Ms. Lachelier, Ms. McCormick, or counsel detailed for the purposes of our December order, “to make all reasonable attempts to contact Al Qosi” to determine his wishes regarding who, if anyone, should represent him regarding the DuBay hearing. Order 2-3 (CMCR Dec. 14, 2018). In response to our order, Ms. Lachelier requested assistance from the government. Appellant Status Rep. (Jan. 28, 2019). The Office of the Chief Prosecutor responded by providing instructions for access to a classified document (AE 014A) available to the defense but offered that efforts to contact Al-Qosi would be futile. Id. at Attach. A. Ms. Lachelier provided no further information about her attempts to contact Al-Qosi; rather, she stated she was ready to authorize Ms. McCormick, as associate counsel, to represent Al-Qosi at a new DuBay hearing. See id. at 2. Our order directing a second DuBay hearing followed. Order 1-2 (CMCR Feb. 13, 2019). Defense counsel, however, objected to the hearing going forward. They argued that Al-Qosi was entitled to “sufficient notice” of the hearing and that the government was obligated to “prov[e his] voluntary absence” from sessions that involved the issues raised by our Order. AE 009A at 1.

After the hearing, the military judge made findings of fact and conclusions of law. See AE 43. In our August 22, 2019, order, we summarized them as follows:

The military judge first held that Al Qosi was entitled to notice of the DuBay hearing and to either attend or waive his attendance. AE 43 at 9-12. He found that Al Qosi was not given “proper notice,” id. at 12, nor did he waive his right to attend the hearing, id. at 11-12. The military judge concluded “there was no immediate legal or statutory authority to conduct the hearing in [Al-Qosi's] absence.” Id. at 12. Rather than end the opinion at this point, the military judge proceeded to answer the questions we specified to avoid “protract[ing] the already deliberate appellate process should [our Court] differ with this Commission's analysis” of Al Qosi's right to attend the hearing. Id. at 12.

The military judge took judicial notice that Al Qosi currently is a “non-resident alien,” id. at 3, and found that he is an “unprivileged enemy belligerent,” id. at 14. He also “took judicial notice ․ [that] the U.S. Secretary of State has designated al Qaeda in the Arabian Peninsula (AQAP) as a Foreign Terrorist Organization ․,” id. at 3, and found that AQAP is “a Yemen-based al Qaeda affiliate,” id. at 6. The military judge further found that the evidence established:

Mr. al Qosi is part of al Qaeda and has purposefully and materially supported al Qaeda by, inter alia: (1) recruiting for AQAP; (2) encouraging lone-wolf attacks against the United States and its allies; (3) providing training in terrorism; (4) contributing to Inspire magazine; (5) acting as a spokesperson for AQAP in audio and video recordings published by Al Malahem; and (6) acting as a leader and member of the AQAP Shura Council.

Id. at 13-14 (footnote omitted).

Order 3 (CMCR Aug. 22, 2019) (alterations in original). We also stated in our August 2019 order:

Inspire is an English language al Qaeda internet publication that provides instruction on how to commit mass-casualty “lone-wolf” attacks in the United States. [AE 43] at 7. The Shura Council is a leadership council that assists Qassim al-Raimi, AQAP's current leader, in AQAP's ongoing hostilities against the United States and/or its coalition partners. Id. at 6-7.

Finally, the military judge concluded that Al Qosi could be made to respond to the judgment of this Court because “military commissions [have] global jurisdiction.” Id. at 15.

Id. at 4 (second alteration in original).⁶ We next specified a series of questions for counsel to answer to aid us in determining the appropriate subsequent steps in the matter before us. Id. at 4-5.

In its response to our questions, the government argued that Ms. Lachelier's attorney-client relationship with Al-Qosi terminated in December 2012 when she was demobilized from active duty. Appellee Br. 2, 47-49 (Oct. 4, 2019). This relationship “was not revived upon her hiring by MCDO, nor could it be revived without Mr. Al Qosi's consent.” Id. at 49. Al-Qosi's counsel did not respond to this argument. See Appellant Reply (Oct. 18, 2019). Although not raised before, we necessarily must consider the government's argument as it goes to Ms. Lachelier's authority to represent Al-Qosi at the DuBay hearing and before this Court. See generally Al-Qosi, 28 F. Supp. 3d at 1203-04 (discussing what more beyond CDC appointment as appellate counsel “is required to establish a post-trial attorney-client relationship for collateral litigation”). The issue of authority to represent Al-Qosi also relates to whether notice of the DuBay hearing to defense counsel is notice to Al-Qosi.

SUMMARY OF THE DECISION

Given the totality of the circumstances, the Court is not convinced that Ms. Lachelier is Al-Qosi's counsel for the purpose of the instant appeal or has the authority to represent him at any DuBay hearing or, in the event of a conflict, designate associate counsel to represent appellant. We also conclude that Al-Qosi, himself, is entitled to notice of the DuBay hearing. Thus, we cannot say that notice of the DuBay hearing to defense counsel was notice to Al-Qosi.

These conclusions demand that before proceeding further, we assure ourselves that (a) Al-Qosi is aware of the effort to appeal his conviction and of the related DuBay hearing, and (b) defense counsel have established to our satisfaction their authorization to represent Al-Qosi in these matters. We leave to defense counsel to determine the manner in which this will be accomplished. However, based on their lack of communication with Al-Qosi for nearly eight years, defense counsel must clearly demonstrate (a) that Al-Qosi has actual notice of these proceedings, (b) he has authorized specific lawyers to appear on his behalf, and (c) what authority, if any, he has given those lawyers. Thus, we abate the proffered appeal and all related matters until this is accomplished.

DISCUSSION

The extent of Ms. Lachelier's authority to represent Al-Qosi is intertwined with his entitlement to notice of the DuBay hearing. Before turning to these issues, we briefly address the military judge's determination that the DuBay hearing this Court ordered on February 13, 2019, is a post-trial session pursuant to Rule for Military Commissions (R.M.C.) 804, Manual for Military Commissions, United States (MMC) (2019 rev. ed.), at which Al-Qosi is required to be present. AE 43 at 9. We disagree with the military judge's determination.

Rule for Military Commissions 804 addresses the presence of the accused with respect to a post-trial session. Such sessions are defined by R.M.C. 1102. They are limited (1) “to correct[ing] an apparent error, omission, or improper or inconsistent action by the military commission” and (2) to addressing “any matter which arises after trial and which substantially affects the legal sufficiency of any findings of guilty or the sentence.” R.M.C. 1102(b). Either the military judge or the convening authority, id., not this Court, orders such post-trial sessions.

The DuBay hearings that we ordered do not fall into either category (1) or (2). Instead, they were collateral and independent factual inquiries to aid this Court in determining whether we should exercise our appellate jurisdiction. They have nothing to do with the adjudication of guilt, sentence, or any action by the military commission. R.M.C. 804 is inapplicable.

This is not to say, however, that an accused has no right to appear at a DuBay hearing. The Supreme Court has held that whether a defendant should be present at “an independent and collateral [post-trial] inquiry into the validity of the conviction”—as opposed to “where the guilt of the defendant is in issue”—is within the sound discretion of the trial court and “depends upon the issues raised by the particular case.” United States v. Hayman, 342 U.S. 205, 222-23, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (stating production of prisoner is required at 28 U.S.C. § 2255 hearing to vacate sentence when there are “substantial issues of fact” about events in which prisoner participated); United States v. Law, 528 F.3d 888, 904-05 (D.C. Cir. 2008) (per curiam) (concluding no error in court not “hold[ing] an evidentiary hearing” and in “denying Law an opportunity to be present” to contest search when his motion was decided on question of law); Wade v. Calderon, 29 F.3d 1312, 1325-26 (9th Cir. 1994) (affirming decision that accused's presence not required at evidentiary hearing related to filed habeas petition where accused “not expected to testify”). “[F]undamental justice” or fairness is the standard by which this discretion is exercised. See Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (involving analysis under Fourteenth Amendment), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 2 & n.1, 14, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Oken v. Warden, 233 F.3d 86, 96 (1st Cir. 2000) (concluding “fundamental fairness” did not require accused's presence at state post-conviction proceeding where “procedures used were not fundamentally unfair”).

We leave to the DuBay judge at any future hearing to address the extent to which Al-Qosi must be present, if at all, absent an effective waiver, for purposes of a “fair and just hearing.” Snyder, 291 U.S. at 108, 54 S.Ct. 330.

Al-Qosi also is entitled to fundamental fairness in the manner in which we decide whether to entertain his appeal. This concept derives from the Due Process Clause that “guarantees the fundamental elements of fairness in a criminal trial.” Spencer v. Texas, 385 U.S. 554, 563-64, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). Thus, ordinarily, we would look to due process jurisprudence in deciding whether Al-Qosi is entitled to notice of the DuBay hearing.

The military judge assumed that Al-Qosi has a procedural due process right to notice. See AE 043 at 9-10. The government argues the accused is not entitled to any such right. Appellee Br. 24 & n.126 (Oct. 4, 2019) (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.” (alteration in original) (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990))); see also Appellee Reply 4-8 (Oct. 19, 2019). Verdugo-Urquidez, however, dealt with substantive due process involving search of a residence in Mexico belonging to a Mexican citizen and resident that would be illegal under the Fourth Amendment if done on American soil. See 494 U.S. at 262-64, 110 S.Ct. 1056. Here, we deal with an issue of procedural due process concerning the manner in which the adjudication of Al-Qosi's appellate rights will unfold.⁷

Until last year, many would read the law in the D.C. Circuit to foreclose any claim that Al-Qosi had any due process rights, procedural or substantive, because “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.” Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C. Cir. 2009), vacated, 559 U.S. 131, 130 S.Ct. 1235, 175 L.Ed.2d 1070 (2010) (per curiam), judgment reinstated as modified, 605 F.3d 1046 (D.C. Cir. 2010) (per curiam).

However, in Qassim v. Trump, 927 F.3d 522, 528 (D.C. Cir.), en banc review denied, 938 F.3d 375 (D.C. Cir. 2019) (per curiam), the D.C. Circuit said that whether Guantanamo detainees have any procedural due process rights is an open question. That issue arose in the context of a detainee's habeas corpus petition. The Circuit said, it neither was before nor decided by Kiyemba, id., despite what could be read to be a clear holding otherwise. Rather, the Qassim court determined that Kiyemba only held that detainees had no substantive due process rights. See id. at 528-29. See also Ali v. Trump, 959 F.3d 364, 367-69 (D.C. Cir. 2020). En banc review of Qassim was denied over a vigorous dissent arguing that Supreme Court and D.C. Circuit decisions have established that Guantanamo detainees have no rights under the due process clause. See Qassim, 938 F.3d at 376-79 (Henderson & Rao, JJ., dissenting from denial of rehearing en banc). See also Ali v. Trump, 959 F.3d at 372-80 (same) (Randolph, Senior Circuit Judge concurring in judgment).

Only once has the Supreme Court recognized a constitutional right afforded an accused tried before a military commission. See Boumediene v. Bush, 553 U.S. 723, 770-71, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (invoking Suspension Clause, Art. I, § 9, cl. 2, of the Constitution, to permit habeas action). As we pointed out previously, it nonetheless appears that the D.C. Circuit would hold that the Ex Post Facto clause applies to commission cases, see Al Bahlul v. United States, 840 F.3d 757, 791-92 (D.C. Cir. 2016) (en banc) (Millet, J. concurring), cited in United States v. Mohammad, 398 F. Supp. 3d 1233, 1240-41 & n.7 (CMCR 2019) (CMCR noting Judge Millet's comment on the “settled roots” of joint criminal enterprise offense in Ex Post Facto discussion); Al Bahlul v. United States, 767 F.3d 1, 18 n.9 (D.C. Cir. 2014) (en banc), cited in Ali v. United States, 398 F. Supp. 3d 1200, 1215 (CMCR 2019) (CMCR remarking that majority of Al-Bahlul panel “would have held” Ex Post Facto Clause applicable in military commissions). In addition, the government has conceded the issue of the applicability of the Ex Post Facto Clause. Al-Bahlul, 767 F.3d at 8.

Given the unsettled state of the law in the D.C. Circuit, this Court could decide whether Al-Qosi is entitled to notice of the Second DuBay hearing as a procedural due process right under the Fifth Amendment. However, if we can, it is our duty to avoid answering that question. As we recently said, “We must follow the ‘longstanding principle of judicial restraint requir[ing] that courts avoid reaching constitutional questions in advance of the necessity of deciding them.’ ” Ali, 398 F. Supp. 3d at 1216 (alteration in original) (quoting Camreta v. Greene, 563 U.S. 692, 705, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011)); see also Qassim, 927 F.3d at 530 (stating a court “must ‘avoid’ ” a constitutional issue “ ‘unless such adjudication is unavoidable’ ” (quoting Matal v. Tam, ––– U.S. ––––, 137 S. Ct. 1744, 1755, 198 L.Ed.2d 366 (2017))). We, again, adhere to this mandate as we must.

As in Ali, we can decide the process to which Al-Qosi is entitled without deciding the constitutional issue. Ali involved whether a Guantanamo accused had a qualified right to a public hearing in a pretrial matter involving the unclassified testimony of a witness. 398 F. Supp. 3d at 1209. The commission ordered a closed hearing with a transcript redacted by the government and released afterwards. Id. at 1210. The accused objected, and asserted a right to a public hearing under the Sixth Amendment. Id. Had this dispute arisen in a court-martial or in federal district court, the Sixth Amendment right to a public trial would be the primary controlling law. See id. at 1215. In Ali, there was no reason to decide whether the Sixth Amendment applies to a military commission trial as other Supreme Court precedent, and the Manual for Military Commissions, R.M.C. 806(a), separately afforded the accused a qualified right to a public trial. See id. at 1216-18. Our prior holding based on controlling Supreme Court law supplies the “governing principle” for resolving Al-Qosi's right to notice. See S. Nuclear Operating Co. v. NLRB, 524 F.3d 1350, 1356 (D.C. Cir. 2008).

We concluded in Ali “that a personal right to a public trial is necessary to comply with the holding in Hamdan v. Rumsfeld, 548 U.S. 557, 126 S. Ct. 2749, 165 L. Ed. 2d 723 (2006).” Id. at 1217.⁸ The Supreme Court in Hamdan held that Guantanamo military commission accuseds are to be “afford[ed] all the judicial guarantees which are recognized as indispensable by civilized peoples.” 548 U.S. at 632, 126 S.Ct. 2749 (quoting Geneva Convention Relative to the Treatment of Prisoners of War art. 3, ¶ 1(d), opened for signature Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (Common Article 3)). These guarantees are incorporated into the “procedural and evidentiary rules” that govern military commission cases.⁹ Rule for Military Commissions 102(a) states that these procedures “are intended to provide for the just determination of every proceeding relating to trial by military commission.”

What is included in the “judicial guarantees” afforded a Guantanamo military commission accused is undefined. Hamdan, 548 U.S. at 633, 126 S.Ct. 2749. In Ali, we discussed Supreme Court law tracing the centuries-long history of public trials. 398 F. Supp. 3d at 1218-19. Based on this history, we concluded that a qualified right to a public trial was required in order to comply with the Hamdan holding that Guantanamo military commission accuseds shall be afforded the “judicial guarantees ․ recognized as indispensable by civilized peoples.” Id. at 1219 (quoting Hamdan, 548 U.S. at 632, 126 S.Ct. 2749). In assessing what specific rights attached, we looked to public trial jurisprudence under the First and Sixth Amendments to guide our analysis. See id. at 1219-28.

Hamdan also tells us to look to Article 75 of Protocol I to the Geneva Conventions of 1949 concerning international armed conflicts, adopted in 1977 (Protocol I), as a guide to identifying those “judicial guarantees.” 548 U.S. at 633, 126 S.Ct. 2749. Here, we look to Part IV of Protocol I, paragraphs 3 and 4 of Article 75. Both have provisions requiring notice to an accused regarding his or her arrest or prosecution. Paragraph (4)(j) tells us that the guarantees to which a military commission accused is entitled extend to post-conviction “judicial and other remedies.” Further, “it appears that the Government ‘regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.’ ” Hamdan, 548 U.S. at 633, 126 S.Ct. 2749 (alteration in original) (quoting William H. Taft, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int'l L. 319, 322 (2003)). We also note that an appeal of a conviction by military commission is a proceeding for which there should be a “just determination.” R.M.C. 102(a).

Thus, we again look to constitutional teachings as a guide in determining what notice of the Second DuBay hearing, if any, is required to be given to Al-Qosi to comply with Hamdan. In doing so, we consider the right to notice as required by procedural due process.¹⁰ This is consistent with affording Al-Qosi “the judicial guarantees which are recognized as indispensable by civilized peoples,” as required by Common Article 3 and incorporated into the Manual for Military Commissions. Ali, 398 F. Supp. 3d at 1217-18.

“Due process of law requires that the proceedings shall be fair, but fairness is a relative, not an absolute, concept. It is fairness with reference to particular conditions or particular results.” Snyder, 291 U.S. at 116, 54 S.Ct. 330. In a context analogous to the purpose of the DuBay hearing, the Supreme Court has addressed what notice due process requires. Wisconsin v. Constantineau involved a state statute that, without notice or hearing, permitted designated state actors to post notices forbidding the sale or gift of intoxicating liquors to individuals who “by excessive drinking” could inter alia endanger themselves, their family, or the community. 400 U.S. 433, 434 & n.2, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) (citation omitted). The Supreme Court struck down the law. It held, “Where a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Id. at 437, 91 S.Ct. 507.

In contrast, the Supreme Court in Paul v. Davis held that notice or hearing was not required when “the interest in reputation asserted ․ is neither ‘liberty’ nor ‘property’ guaranteed against state deprivation without due process of law.” 424 U.S. 693, 712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In this case, two chiefs of police, on their own authority, circulated notices to the local business community claiming that the respondent (and others) were “ACTIVE SHOPLIFTERS” without prior notice to respondent. Id. at 694-95, 96 S.Ct. 1155. The Supreme Court held that this state conduct would be defamatory under common law, see id. at 697, 96 S.Ct. 1155, but it did not give rise to a federal claim for which there are procedural due process rights because it did not “depriv[e]” respondent of rights under state or federal law or “change [his] status” under state law, id. at 712, 96 S.Ct. 1155.

The distinction between Constantineau and Paul was analyzed by the D.C. Circuit in Nat'l Council of Resistance of Iran v. Dep't of State, 251 F.3d 192, 203-04 (D.C. Cir. 2001), a case that closely mirrors the substantive issues in the DuBay hearing at issue. Nat'l Council involved a challenge to the State Department's classification of the petitioners as a “foreign terrorist organization” under the Anti-Terrorism and Effective Death Penalty Act of 1996 without prior “notice of the materials used against” petitioners or a right to “comment on such materials.” Id. at 195-96. “The consequences of [a foreign terrorist organization] designation are dire.” Id. at 196. It deprived petitioners “of the previously held right to--for example--hold bank accounts, and to receive material support or resources from anyone within the jurisdiction of the United States.” Id. at 204. The D.C. Circuit explained “the appropriate rule of law is that where the government issues a stigmatizing posting (or designation) as a result of which the stigmatized individual is ‘deprived ․ of a right previously held under state law,’ due process is required.” Id. (quoting Paul, 424 U.S. at 708, 96 S.Ct. 1155 (ellipsis in original)).

The D.C. Circuit went on to say that the “procedures which have been held to satisfy the Due Process Clause have ‘included notice of the action sought,’ along with the opportunity to effectively be heard.” Id. at 208 (quoting Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)). As such, before the Secretary acted, petitioners in Nat'l Council were entitled to both (a) notice of any contemplated designation (including unclassified documents intended to be used) and (b) an opportunity to be meaningfully heard, absent “a showing of particularized need” for less process. Id. at 208-09. This is consistent with settled law. See id. at 206-09 (discussing the three Mathews factors on “specific dictates of due process” (quoting Mathews, 424 U.S. at 335, 96 S.Ct. 893)); Mathews, 424 U.S. at 348-49, 96 S.Ct. 893 (“The essence of due process is the requirement that ‘a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.’ ” (alteration in original) (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171-72, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring))); Fuentes v. Shevin, 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (“Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” (citation omitted)); Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (“[T]here can be no doubt that at a minimum [the Due Process Clause] require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”); Acosta v. Artuz, 221 F.3d 117, 124 (2d Cir. 2000) (stating it is improper for a court to dismiss a claim sua sponte “without affording the petitioners notice and an opportunity to be heard”).

Here, we ordered a DuBay hearing “to make findings of fact and conclusions of law regarding whether (a) al Qosi is currently an unprivileged enemy belligerent” waging war on the United States, and “(b) ․ whether al Qosi can be made to respond to any judgment that the Court may render in response to his appeal.” Order 3 (CMCR June 19, 2017). Al-Qosi's right to be heard in this Court may be adversely affected depending on the facts that are found and our conclusions concerning what inherent powers we have, if any, to abate or dismiss his appeal based on those facts. Thus, there may be state action that alters or extinguishes a right or status afforded Al-Qosi previously recognized by law, i.e., his asserted right to “plenary review under 10 U.S.C. § 950f” of his conviction. Appellant Br. 1 (Feb. 13, 2017); see Paul, 424 U.S. at 711, 96 S.Ct. 1155 (discussing Supreme Court authority supporting this general proposition); Constantineau, 400 U.S. at 435-37, 91 S.Ct. 507 (stating posted police flyers required notice and opportunity to be heard); Nat'l Council, 251 F.3d at 204, 209 (stating terrorist designation required notice and opportunity to be heard). Accordingly, in the circumstances of his case Al-Qosi is entitled to valid notice of the DuBay hearing and an opportunity to be heard, consistent with the “judicial guarantees” in Common Article 3, and the Manual for Military Commissions. See Ali, 398 F. Supp. 3d at 1217-18.

That Al-Qosi was not given actual notice of the DuBay hearing is undisputed. His whereabouts are not known. See AE 43 at 3-5. The government argues that the notice given to Al-Qosi's counsel is sufficient for the hearing to go forward.¹¹ As a general rule, this would be true. See, e.g., Irwin v. Dep't of Vets. Aff., 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (“Under our system of representative litigation, ‘each party is deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney.” ’ ” (quoting Link v. Wabash R.R. Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 (1880)))); United States v. $6,976,934.65, 554 F.3d 123, 128 (D.C. Cir. 2009) (observing that district court apparently “relied on the well-established principle that a person is ‘considered to have “notice of all facts, notice of which can be charged upon the attorney” ’ ” (quoting Link, 370 U.S. at 634, 82 S.Ct. 1386 (quoting Smith, 101 U.S. at 326))); United States v. Villanueva-Diaz, 634 F.3d 844, 852 n.4 (5th Cir. 2011) (“Imputing notice to counsel to his client is consistent with general principles of agency applicable to the attorney-client relationship ․” (citing Link, 370 U.S. at 633-34, 82 S.Ct. 1386)); Buchanan v. Reliance Ins. Co. (In re Color Tile Inc.), 475 F.3d 508, 513 (3d Cir. 2007) (collecting cases stating that agent's notice is imputed to the principal); see also Restatement (Third) of the Law Governing Lawyers § 28(1) (Am. Law Inst. 2000) [hereinafter Restatement (Third) ] (stating that generally “[i]nformation imparted to a lawyer ․ is attributed to the client” unless “proof of the client's personal knowledge or intentions [is required] or the lawyer's legal duties preclude disclosure of the information to the client”).

The Supreme Court long ago addressed the general rule of imputed knowledge in The Distilled Spirits, saying it “is based on the principle of law, that it is the agent's duty to communicate to his principal the knowledge which he has respecting the subject-matter of negotiation, and the presumption that he will perform that duty.” 78 U.S. 356, 367, 11 Wall. 356, 20 L.Ed. 167 (1871), quoted in Lilly v. Hamilton Bank of New York, 178 F. 53, 56 (3d Cir. 1909). The law, however, also says, “[n]otice is not imputed to the client unless it comes to the attorney within the duration and scope of the attorney-client relationship.” Bell v. Brown, 557 F.2d 849, 856 n.61 (D.C. Cir. 1977); see also Ford Motor Credit Co. v. Weaver, 680 F.2d 451, 457 (6th Cir. 1982) (“Notice or knowledge is imputed where the agent is acting within the scope of his authority and the knowledge pertains to matters within the scope of the agent's authority.” (citing Curtis, Collins & Holbrook Co. v. United States, 262 U.S. 215, 43 S.Ct. 570, 67 L.Ed. 956 (1923))); Restatement (Third) § 28(1) (conditioning imputation on requirement that information be imparted to lawyer “during and relating to the representation of a client” for the purpose of “determining the client's rights and liabilities in matters in which the lawyer represents the client”). Subsumed in the presumption underlying imputation from counsel to client is that counsel knows how to contact the client, and that the client knows that he or she must provide counsel with current contact information.

In this case, we are unwilling to apply the general imputation rule, at least on the record as it now stands. We reach this conclusion because the scope of Ms. Lachelier's authorized representation of Al-Qosi is, at best, uncertain, and more likely does not extend to prosecuting an appeal. Moreover, Ms. Lachelier has not spoken with Al-Qosi in nearly eight years.

We previously concluded that Ms. Lachelier has an attorney-client relationship with Al-Qosi, but did not determine its scope. Order 1 (June 19, 2017). This, principally, was based on the trial record in which she told the commission that she was the lawyer who would be responsible for post-trial matters, and statements in her 2017 declaration concerning (a) her discussions with Al-Qosi before he was released in Sudan about his appellate rights, and (b) Ms. Lachelier's “request [while Al Qosi was still in custody] to the Chief Defense Counsel, Col Jeffrey Colwell, USMC, for the appointment of an appellate attorney to represent Mr. Al-Qosi.” Lachelier Decl. ¶ 7 (Mar. 23, 2017). According to Ms. Lachelier, Colonel Colwell denied her request. Id. About three months later, after Al-Qosi had been repatriated, a new CDC detailed Ms. McCormick as appellate counsel to represent Al-Qosi.¹² Id. at ¶ 8.

Ms. Lachelier's departure from active duty could be interpreted as severing her attorney-client relationship with Al-Qosi. Nevertheless, this is not always the case, as made clear by the Court of Appeals for the Armed Forces:

Our case law does not establish separation from active duty as necessarily establishing good cause [to terminate an attorney-client relationship involving detailed counsel] in every case, nor does our case law establish a specific methodology for considering the relative interests of the government, counsel, and the client. Compare, e.g., United States v. Spriggs, 52 M.J. 235, 246 (C.A.A.F. 2000) (stating that “[a]bsent government misconduct, the routine separation of a judge advocate from active duty normally terminates any attorney-client relationship ․”), with United States v. Eason, 21 C.M.A. 335, 45 C.M.R. 109, 111 (1972) (observing that an attorney-client relationship “may not be severed or materially altered for administrative convenience”). Use of the word “normally” in Spriggs reflects articulation of general guidance, not a restrictive rule. Although separation from active duty normally terminates representation, highly contextual circumstances may warrant an exception from this general guidance in a particular case.

United States v. Hutchins, 69 M.J. 282, 290-91 (C.A.A.F. 2011) (first alteration added).

The prosecution of accused persons held at Naval Station Guantanamo Bay often does not lend itself to normal circumstances. This is true here. There were discussions between Al-Qosi and his defense counsel, Ms. Lachelier about his appellate rights. Her request for appellate counsel was denied. Lachelier Decl. ¶ 4-7. Al-Qosi was repatriated without an appeal being filed. After Al-Qosi was transported to the Republic of the Sudan, a new CDC appointed appellate counsel (Ms. McCormick) on September 12, 2012, to represent Al-Qosi. Al-Qosi, 28 F. Supp. 3d at 1200. The Court has no facts, however, regarding what, if anything, the accused was told about maintaining contact with counsel. Ms. Lachelier also represents to the Court that she continues to represent Al Qosi.

We adhere to our previous finding that Ms. Lachelier has an attorney-client relationship with Al-Qosi. See Order 1 (June 19, 2017). Whether that attorney-client relationship extends to authorizing Ms. Lachelier to seek to overturn Al-Qosi's conviction or represent him at the DuBay hearing we ordered is another question.

The record facts do not clearly demonstrate that Al-Qosi agreed to pursue an appeal, that he authorized Ms. Lachelier to represent him on appeal, or that she has authority to represent him in matters collateral to any appeal. Ms. Lachelier's request to the CDC for assignment of appellate counsel is more consistent with an effort to determine if Al-Qosi wanted to pursue an appeal. This is supported by statements Ms. McCormick made when she unsuccessfully sought funding in October 2012 to travel to Sudan to meet with Al-Qosi and advise him about his post-trial rights. Br. in Support of Pet. for Extraord. Relief in Nature of Writs of Mandamus & Prohib. 35 & App. 24 (Jan. 4, 2013). Ms. McCormick justified this effort as necessary to ascertain whether Al-Qosi even desired to pursue an appeal.

In her mandamus petition seeking travel funds, Ms. McCormick said: “Only after meaningful consultation with counsel will Mr. Qosi be able to make an informed decision about whether to pursue an appeal” in this Court, or direct counsel to take other post-trial action. Id. at 35; see also id. at App. 31, p. 1 ¶ 1 (stating her travel is to advise on “options for post-trial review and to determine [Al-Qosi's] wishes regarding potential challenges to” conviction); Al-Qosi, 28 F. Supp. 3d at 1201 (stating travel request was so Al-Qosi “could make an informed decision on whether he wanted [Ms. McCormick] to represent him and whether she should challenge his military commission conviction”). These statements suggest that, at least in the mind of the detailed appellate defense counsel in 2012 and in January 2013, an appeal was an open question.

The record also is devoid of any evidence indicating that, before he was repatriated, Al-Qosi was told of the need to stay in communication with Ms. Lachelier or any other attorney, or that he needed to keep counsel informed about how to contact him. Thus, we cannot say that Al-Qosi was aware of the importance of enabling his counsel to communicate with him.

Aside from issues related to Al-Qosi's notice of the DuBay hearing, we are not convinced Ms. Lachelier is authorized to prosecute an appeal that might result in Al-Qosi facing (a) prosecution for some or all of the original charges against him, or (b) confinement exceeding the specified term in his pretrial agreement. Counsel's pursuit of an appeal could expose Al-Qosi to more severe punishment. Whether Al-Qosi wishes to take this risk is a decision that he, and he alone, must make after being informed of the relevant facts. See Al-Qosi, 28 F. Supp. 3d at 1203-04 (collecting cases). Accordingly, before defense counsel may take action that could place Al-Qosi in a worse position, we must be assured that Al-Qosi has given his informed consent to that action. See id. We will not presume, merely from the limited attorney-client relationship as it now exists, that Ms. Lachelier has Al-Qosi's permission to pursue an appeal in an attempt to overturn his conviction.

With no clear evidence of Ms. Lachelier's authority to prosecute an appeal of Al-Qosi's conviction and the lack of evidence that Al-Qosi was aware of the need to keep defense counsel apprised of how they could contact him, we conclude that notice of the DuBay hearing given to Ms. Lachelier is not notice to Al-Qosi. Until defense counsel can demonstrate that Al-Qosi has given counsel informed consent to appeal his conviction, the appeal may not proceed. For the same reason, the DuBay hearing cannot go forward. We therefore abate all matters before this Court related to Al-Qosi until defense counsel establish to our satisfaction that the accused (a) has been notified of the effort to appeal his conviction and of our February 13, 2019, order directing a DuBay hearing, (b) confirms he is represented by Ms. Lachelier and/or other counsel, and (c) acknowledges the extent of counsel's authority to represent him before this Court and on matters collateral to any such appeal.

Accordingly, Al-Qosi's appeal is ABATED until further order of the Court.

FOOTNOTES

1.   Previously, at times we have referred to Al-Qosi as a petitioner. The correct reference is appellant based on the procedural posture of the matter before us. However, this does not mean that an appeal is properly before us. That issue remains to be resolved.

2.   United States v. DuBay, 37 C.M.R. 411, 413 n.2, 17 U.S.C.M.A. 147, 149 n.2 (1967) (per curiam).

3.   Ms. Lachelier has not communicated with Al-Qosi since his departure from Guantanamo Bay in July 2012; Ms. McCormick has never communicated with him. Appellant Resp. to Specified Ques. ¶ 5 (Mar. 23, 2017).

4.   A redacted version of Ms. Lachelier's 2017 declaration is filed on the public docket under “Ibrahim Ahmed Mahmoud al Qosi (DuBay).” AE 010B at 18-19 (Attach. C).

5.   Given the record before us, we do not view Al-Qosi as a fugitive from justice as that term is normally understood. Rather, we will look to the fugitive disentitlement doctrine and the policies underlying this doctrine as the starting point for any analysis regarding the existence, if any, of the Court's discretion and the application of that discretion, if Al Qosi is found to be an unprivileged enemy belligerent. Degen v. United States, 517 U.S. 820, 823, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996); United States v. Awadalla, 357 F.3d 243, 245-47 (2d Cir. 2004). See generally Ortega-Rodriguez v. United States, 507 U.S. 234, 239-40, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993) (discussing history and rationale for “fugitive dismissal rule”); Daccarett-Ghia v. Comm'r, 70 F.3d 621, 626-27 (D.C. Cir. 1995) (discussing scope of fugitive entitlement doctrine under Ortega-Rodriguez).

6.   In November 2019, the United States made a “reward offer [ ] up to 4 million U.S. dollars for information regarding Ibrahim Ahmed Mahmoud al-Qosi. Al-Qosi is known as Sheikh Khubayb al-Sudani․ [and] is part of the leadership team that assists the current emir of AQAP, Qasim al-Rimi.” Michael T. Evanoff, Ass't Sec'y, Bureau of Diplomatic Sec., U.S. Dep't of State, Press Remarks, Assistant Secretary of State for the Bureau of Diplomatic Security Michael Evanoff And Ambassador Nathan A. Sales, Coordinator for Counterterrorism On the State Department's Rewards for Justice (RFJ) Program (Nov. 7, 2019), https://www.state.gov/assistant-secretary-of-state-for-the-bureau-of-diplomatic-security-michael-evanoff-and-ambassador-nathan-a-sales-coordinator-for-counterterrorism-on-the-state-departments-rewards-for-justic/.

7.   Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (“We have emphasized time and again that ‘the touchstone of due process is protection of the individual against arbitrary action of government,’ Wolff v. McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), whether the fault lies in a denial of fundamental procedural fairness, see, e.g., Fuentes v. Shevin, 407 U.S. 67, 82, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972) (the procedural due process guarantee protects against ‘arbitrary takings’), or in the exercise of power without any reasonable justification in the service of a legitimate governmental objective, see, e.g., Daniels v. Williams, 474 U.S.[ 327,] 331, 106 S.Ct. 662, 88 L.Ed.2d 662 [ (1986) ] (the substantive due process guarantee protects against government power arbitrarily and oppressively exercised).” (parallel citations omitted)); Hurd v. District of Columbia, 864 F.3d 671, 682 (D.C. Cir. 2017) (When liberty is at risk, procedural due process requires “some form of process,” such as notice and hearing, before adverse action may occur.).

8.   In Ali v. United States, we also held that the “right to a public trial [is] embedded in the Manual for Military Commissions, 398 F. Supp. 3d 1200, 1216 CMCR 2019. While here we rely on the provision of “judicial guarantees”—another reason given in Ali “for the same conclusion”—each reason is “regarded as authority [unless] directly” overruled. Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340, 48 S.Ct. 194, 72 L.Ed. 303 (1928); cited with approval in Hitchcock v. Sec'y, Fla. Dep't of Corr., 745 F.3d 476, 484 n.3 (11th Cir. 2014) (stating it is “well-established law that an alternative holding is not dicta but instead is binding precedent,” and collecting cases); see also Nat. Res. Def. Council, Inc. v. Nuclear Reg. Comm'n, 216 F.3d 1180, 1189 (D.C. Cir. 2000) (stating that if there are two grounds for a decision and a court adopts both, “each is the judgment of the court, and of equal validity with the other,” not dictum (internal quotation remarks and citations omitted)).

9.   The preamble to the 2019 Manual for Military Commissions, United States (MMC), provides, in relevant part, that the procedures and rules of evidence adopted for military commissions “provide procedural and evidentiary rules ․ which are recognized as indispens[able] by civilized peoples as required by Common Article 3 of the Geneva Conventions of 1949.” MMC, pt. I, ¶ 2.

10.   The parties have not cited any other developed law that would adequately address Al-Qosi's entitlement to notice of the DuBay hearing. While the body of law concerning the Fifth Amendment Due Process Clause guides us in assessing Al-Qosi's entitlement to notice based on just and fair treatment, we do not find that the accused has any rights under the Due Process Clause.

11.   The government contends that notice to his lawyers is sufficient because counsel and their clients have an obligation to communicate about the case. See Appellee Br. 24-27 (Oct. 4, 2019). At the same time, it argues that Ms. Lachelier and Ms. McCormick are not Al-Qosi's lawyers. Id. at 46 & n.216; see id. at 47-49.

12.   Detailing Ms. McCormick as appellate counsel, by itself, did not establish an attorney-client relationship with Al-Qosi. United States v. Al Qosi, 28 F. Supp. 3d 1198, 1203-04 (CMCR 2014). The attorney also must “consult” with the client and “obtain consent” regarding future action. Id. (quoting Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004)). Our superior court has previously held, when discussing Ms. McCormick's asserted representation of Al-Qosi, that absent authorization from Al-Qosi to file an appeal, the D.C. Circuit “lack[ed] a justiciable case or controversy.” In re Al Qosi, 602 Fed. App'x 542, 543 (D.C. Cir. 2015) (per curiam) (unpublished). The D.C. Circuit concluded, “Because al Qosi has not authorized [counsel to file petitions for review or mandamus], we conclude that we lack jurisdiction and dismiss the petitions.” Id.

Opinion for the Court Pollard, Presiding Judge:

Opinion for the Court filed by Pollard, Presiding Judge, with whom Lewis, and Tang, Judges, join.