It concluded that Petitioner's detention remained lawful and that the District Court proceedings had satisfied what was required under the Suspension Clause. Al Hela v. Trump, 972 F.3d 120, 127 (D.C. Cir. 2020). But the panel went a step further.

See, e.g., United States v. McCormick, Crim. No. 18-0359 (JDB), 2019 WL 6311898, at *2 (D.D.C. Nov. 25, 2019) (citing United States v. Marion, 404 U.S. 307, 324 (1971)). But this type of claim is not currently available to Bin Lep, given the D.C. Circuit's recent pronouncement in Al-Hela v. Trump that Guantanamo detainees lack any due process rights.See 972 F.3d 120, 150 (D.C. Cir. 2020) ("[T]he Due Process Clause cannot be invoked by Guantanamo detainees, whether those due process rights are labeled 'substantive' or 'procedural.'"). Bin Lep instead argues that the government's unreasonable pre-referral delay has obstructed his habeas rights under the Suspension Clause because "the looming threat of potential prosecution prevents him from developing the record he needs" to challenge the legality of his detention under the AUMF.

TABLE OF AUTHORITIES Al Hela v. Trump, 972 F.3d 120 (D.C. Cir. 2020) ....................................................................... 14 Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988) ................................................................................ 10, 11 Andrx Pharm., Inc. v. Biovail Corp. Int'l, 256 F.3d 799 (D.C. Cir. 2001) ......................................................................... 9 Banneker Ventures, LLC v. Graham, 798 F.3d 1119 (D.C. Cir. 2015) ..................................................................... 10 Barwick v. U.S., Dep't of Interior, No. 89-5478, 1991 WL 65477 (D.C. Cir. Mar. 21, 1991) ............................. 13 Bechtel & Cole v. Graceland Broad. Inc., 18 F.3d 953 (D.C. Cir. 1994) ........................................................................... 4 Chaidez v. United States, 568 U.S. 342 (2013) ......................................................................................... 9 Citizens for Responsibility & Ethics in Washington v. Fed. Elec

Cases Al Hela v. Trump, 972 F.3d 120 (D.C. Cir. 2020)...968 Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988)...966, 967

Moreover, whether and what process is due to a Guantanamo detainee is currently in flux: the issue of whether Fifth Amendment protections apply to Guantanamo detainees is currently pending before the en banc D.C. Circuit. See Al Hela v. Trump, No. 19-5079 (D.C. Cir.); see also Al Hela v. Trump, 972 F.3d 120, 138-46 (D.C. Cir. 2020), reh'g and reh'g en banc granted, judgment vacated sub nom. Al -Hela v. Biden, No. 19-5079, 2021 WL 6753656 (D.C. Cir. Apr. 23, 2021). Here, however, even assuming Bin Lep is entitled to the Fifth Amendment's full protection, he fails to plead facts sufficient to state such a claim.

Additionally, in a now vacated decision of the D.C. Circuit, the court considered the substantial support prong as applied not to a member of an enemy force but to a prominent businessman with "contact with several known and suspected affiliates of Al Qaeda and two associated terrorist organizations." Al Hela v. Trump , 972 F.3d 120, 127 (D.C. Cir. 2020), reh'g granted & opinion vacated , Order, No. 19-5079 (D.C. Cir. Apr. 23, 2021). To be sure, none of these cases grappled directly with the legal question of whether a member of an associated force can be detained for providing substantial support to al Qaeda.

These facts are significant because “[a] foreign entity without property or presence in this country has no constitutional rights, under the due process clause or otherwise, ” People's Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17, 22 (D.C. Cir. 1999), and the D.C. Circuit “has consistently refused to extend extraterritorial application of the Due Process Clause, ” Al Hela v. Trump, 972 F.3d 120, 139 (D.C. Cir. 2020). To this point, the State Department explicitly argues that “Plaintiffs [are] nonresident aliens without connections to the United States” and, therefore, “do not possess due process rights.

Either path requires addressing an important constitutional question. Cf.Al Hela v. Trump , 972 F.3d 120, 144 (D.C. Cir. 2020) ("Even if we were to assume without deciding that ‘procedural’ due process ... applied extraterritorially, the procedural standards are not clearly settled in this specific context."). But here, the Court will follow the D.C. Circuit's example in Jifry by assessing whether Olenga received all the process due under the Fifth Amendment, while assuming that the due process clause applies.