The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed February 1, 2008
No. 06-1197
Haji Bismullah a/k/a Haji Bismillah, and a/k/a Haji Besmella,
Haji Mohammad Wali, Next Friend of Haji Bismullah,
Petitioners
v.
Robert M. Gates, Secretary of Defense,
Respondent
_______
No. 06-1397
Huzaifa Parhat, et al.,
Petitioners
v.
Robert M. Gates, Secretary of Defense, et al.,
Respondents
________
2
No. 07-1508
Abdusabour,
Petitioner
v.
Robert M. Gates, U.S. Secretary of Defense, et al.,
Respondents
______
No. 07-1509
Abdusemet,
Petitioner
v.
Robert M. Gates, U.S. Secretary of Defense, et al.,
Respondents
_______
No. 07-1510
Jalal Jalaldin,
Petitioner
v.
Robert M. Gates, U.S. Secretary of Defense, et al.,
Respondents
_______
3
No. 07-1511
Khalid Ali,
Petitioner
v.
Robert M. Gates, U.S. Secretary of Defense, et al.,
Respondents
_______
No. 07-1512
Sabir Osman,
Petitioner
v.
Robert M. Gates, U.S. Secretary of Defense*, et al.,
Respondents
_______
No. 07-1523
Hammad,
Petitioner
v.
Robert M. Gates, Secretary of Defense and Wade F. Davis,
Colonel, USA,
Respondents
_______
4
On Petition for Rehearing En Banc and Motions
_______
BEFORE: GINSBURG, Chief Judge, and SENTELLE,
HENDERSON, RANDOLPH, ROGERS, TATEL,
GARLAND, BROWN, GRIFFITH, and
KAVANAUGH, Circuit Judges
ORDER
Respondents’ petition for rehearing en banc and the
response thereto were circulated to the full court, and a vote
was requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing and the motion to expedite
review of the petition for rehearing en banc and any
subsequent proceedings; the motion for leave to file ex
parte/in camera top secret-SCI declarations for judges’ review
only and the joint opposition thereto; and the letters filed
pursuant to Federal Rule of Appellate Procedure 28(j), it is
ORDERED that the petition for rehearing en banc be
denied. It is
FURTHER ORDERED that the motion to expedite be
dismissed as moot. It is
FURTHER ORDERED that the motion for leave to file
ex parte/in camera top secret-SCI declarations for judges’
review only be granted.
5
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Deputy Clerk
Circuit Judges SENTELLE, HENDERSON, RANDOLPH,
BROWN, and KAVANAUGH would grant the petition for
rehearing en banc.
A separate statement concurring in the denial of rehearing
en banc filed by Chief Judge GINSBURG, with whom Circuit
Judges ROGERS, TATEL, and GRIFFITH join, is attached.
A separate statement concurring in the denial of rehearing
en banc filed by Circuit Judge GARLAND is attached.
A separate statement dissenting from the denial of
rehearing en banc filed by Circuit Judge HENDERSON, with
whom Circuit Judges SENTELLE, RANDOLPH, and
KAVANAUGH join, is attached.
A separate statement dissenting from the denial of
rehearing en banc filed by Circuit Judge RANDOLPH, with
whom Circuit Judges SENTELLE, HENDERSON, and
KAVANAUGH join, is attached.
A separate statement dissenting from the denial of
rehearing en banc filed by Circuit Judge BROWN is attached.
GINSBURG, Chief Judge, with whom Circuit Judges
ROGERS, TATEL, and GRIFFITH join, concurring in the denial of
rehearing en banc: The panel that heard this case held that “the
record on review must include all the Government Information,”
which the controlling DoD Regulations define as “reasonably
available information in the possession of the U.S. Government
bearing on the issue of whether the detainee meets the criteria to
be designated as an enemy combatant.” Bismullah v. Gates
(Bismullah II), 503 F.3d 137, 138-39 (2007); Bismullah v. Gates
(Bismullah I), 501 F.3d 178, 185-86 (2007); E-1 § E(3). In his
dissent from the court’s denial of rehearing en banc, Judge
Randolph says of the panel’s ruling that it “is contrary to the rule
and the statute governing the contents of the record in cases such
as these, it violates the restrictions on our jurisdiction in the
Detainee Treatment Act [(DTA), Pub. L. No. 109-148, §
1005(e)(2), 119 Stat. 2680, 2742-43 (Dec. 30, 2005) (codified as
amended at 10 U.S.C. § 801 note)], and it risks serious security
breaches for no good reason.” Stmt. of Randolph, J., at 1. Like
Judge Randolph, I would not ordinarily write a separate opinion
on a denial of rehearing en banc, but his suggestion that the
panel’s decision was not only erroneous but also dangerous
should not go unremarked.
Judge Randolph contends that 28 U.S.C. § 2112(b) and
Federal Rule of Appellate Procedure 16(a), which implements
§ 2112(b), “make crystal clear that ... the record does not include
information never presented to the Combatant Status Review
Tribunal” (CSRT).1 Stmt. of Randolph, J., at 1-2. Section
1
Judge Randolph also implies the panel ignored the provisions
of the DoD Regulations that define the “Record of Proceedings”
before the CSRT, namely, E-2 § C(8) & (10). In fact, the panel not
only epitomized both E-2 § C(8) and E-2 § C(10), see Bismullah I,
501 F.3d at 182; see also Bismullah II, 503 F.3d at 139 (citing E-2 §
C(8)), it expressly rejected the Government’s contention that the
2
2112(b) states: “The record to be filed in the court of appeals ...
shall consist of the order sought to be reviewed or enforced, the
findings or report upon which it is based, and the pleadings,
evidence, and proceedings before the agency, board,
commission, or officer concerned.” Accord FED. R. APP. P.
16(a). The term “agency,” in turn, “includes any department,
independent establishment, commission, administration,
authority, board or bureau of the United States ... unless the
context shows that such term was intended to be used in a more
limited sense.” 28 U.S.C. § 451. Judge Randolph asserts that §
2112(b) applies to our review pursuant to the DTA of a CSRT’s
status determination because a CSRT is within a military
department and a “military department is a ‘department’ under
§ 451, and thus an ‘agency’ under § 2112(b).” Stmt. of
Randolph, J., at 3.
Section 2112(b) does not define the record on review of a
CSRT proceeding because a military department is not an
agency under 28 U.S.C. § 451. Several provisions of Title 28
distinguish between an “agency” and a “military department,”
which necessarily implies that a military department is not an
agency. See 28 U.S.C. § 530D(e) (“executive agencies and
military departments”); 28 U.S.C. § 530C(b)(L)(iv) (“executive
agency or military department”); 28 U.S.C. § 530D(d)
(“executive agency or military department”); cf. 28 U.S.C. §
2671 (defining “[f]ederal agency” specifically to include “the
military departments” for purposes of certain sections of Title 28
Record of Proceedings constitutes the record on review for reasons
stated in the panel’s two opinions. See Bismullah I, 501 F.3d at 184-
86; Bismullah II, 503 F.3d at 139-41.
3
that have no bearing upon § 2112).2
Judge Randolph dismisses these provisions on the ground
that in them the term “agency” is always modified by
“executive” or “federal,” which suggests a more limited
conception of “agency” there than in § 451, where it appears
without modification. Stmt. of Randolph, J., at 3. For
confirmation, he points to § 2 of the Administrative Procedure
Act, 5 U.S.C. § 551(1)(F), which excludes “courts martial and
military commissions” from the definition of “agency” for
purposes of that Act. Stmt. of Randolph, J., at 3 & n.3. Judge
Randolph seems to believe that by defining “agency” broadly
and then excluding courts martial and military commissions, the
APA implies that courts martial and military commissions are
agencies except where “expressly excluded”; because Title 28,
unlike the APA, does not expressly exclude courts martial and
military commissions from its scope, courts martial and military
commissions are presumably agencies for purposes of that title,
including §§ 451 and 2112.
This reasoning tells us nothing about a CSRT, however,
unless a CSRT is a court martial or military commission, which
it assuredly is not. See 10 U.S.C. § 802 (specifying persons
subject to court martial); 10 U.S.C. § 817 (defining jurisdiction
of court martial); 10 U.S.C. §§ 877-934 (enumerating
substantive offenses that may be tried before a court martial);
see 10 U.S.C. § 948b(f) (defining “military commission”); 10
2
See W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 88-92, 100-01
(1991) (holding “attorney’s fees” and “expert fees” distinct for
purposes of 42 U.S.C. § 1988 because “[i]f ... the one includes the
other, dozens of statutes referring to the two separately become an
inexplicable exercise in redundancy”).
4
U.S.C. § 948d(c) (distinguishing military commission from
CSRT); compare DTA § 1005(e)(2) (“Review of decisions of
combatant status review tribunals of propriety of detention”)
with DTA § 1005(e)(3) (“Review of final decisions of military
commissions”).3 Not coming within any exclusion from the
APA, therefore, a CSRT must be either an agency subject to the
APA or, as I believe it is, something sui generis and outside the
contemplation of the APA. If a CSRT were an agency subject
to the APA, then the detainees at Guantánamo would
presumably be entitled to the significant procedural rights
afforded by the APA. The notion that a CSRT is subject to the
APA is completely inconsistent with the Congress’
understanding when, by enacting the DTA, it ratified the
procedural framework for CSRTs established by the DoD
Regulations. In summary, a CSRT can be structured as it is
under the DoD Regulations only because it is not a court martial,
not a military commission, and not an agency.4
3
Judge Randolph says 5 U.S.C. § 551 also expressly excludes
“other military authorities.” Stmt. of Randolph, J., at 3 n.3. In fact,
the exclusion is for “military authority exercised in the field in time of
war or in occupied territory.” 5 U.S.C. § 551(1)(G). Citing his own
concurring opinion in Al Odah v. United States, 321 F.3d 1134, 1149
(2003), Judge Randolph argues a CSRT is a military authority
exercised in the field in a time of war. Stmt. of Randolph, J., at 3 n.3.
No court has ever so held and, in any event, no party to this case has
suggested as much.
4
Of course, if a CSRT were a court martial or a military
commission, then the detainees would be entitled to greater procedural
rights than they have under the DoD Regulations. See 10 U.S.C. §§
830-876b (defining procedures for court martial); 10 U.S.C. §§ 948q-
950j (defining procedures for military commission).
5
It would be particularly untoward to apply § 2112(b)
outside its apparent field of application – and particularly
improbable the Congress so intended – when the result would be
to preclude the court from discharging the review function
assigned to it in the DTA. That review function is broader than
Judge Randolph suggests. The DTA charges the court with
reviewing not only “whether ... the conclusion of the Tribunal
[was] supported by a preponderance of the evidence,” but also
whether it was reached in a manner “consistent with the
standards and procedures specified by the Secretary of Defense”
for CSRTs. DTA § 1005(e)(2)(C).
The DoD Regulations, which establish the “standards and
procedures” to be followed by the Recorder, the detainee’s
Personal Representative, and the CSRTs themselves, require the
Recorder to obtain all the Government Information, E-1 § C(2);
E-2 § C(1), to cull from the Government Information and
forward to the Tribunal such information “as may be sufficient
to support the detainee’s classification as an enemy combatant”
together with all exculpatory information, E-1 § H(4); E-2 §§
B(1), C(6), and to share all the Government Information with the
detainee’s Personal Representative, E-1 § F(8); E-2 § C(4). In
order to review whether the Recorder performed these tasks, the
court obviously must see all the Government Information.5 See
5
The record before the court suggests the Recorder has not
always fulfilled his obligations under the DoD Regulations. See Decl.
of Stephen Abraham, Lieutenant Colonel, U.S. Army Reserve ¶¶ 5-19
(June 15, 2007) (stating “the information comprising the Government
Information and the Government Evidence was not compiled
personally by the CSRT Recorder;” “on a number of occasions” his
request that an originating agency provide “a written statement that
there was no exculpatory evidence ... [was] summarily denied;” the
6
Bismullah I, 501 F.3d at 185-86; Bismullah II, 503 F.3d at 139-
40. Further, the court will be able to assess whether any failure
by the Recorder to perform these tasks affected the weight of the
evidence before the CSRT only if the court can consider that
failure in light of all the information the Recorder was supposed
to collect and forward. See Bismullah I, 501 F.3d at 185-86;
Bismullah II, 503 F.3d at 139-40. Irrespective, therefore, of
what § 2112 might say in general about the scope of a record on
review, the DTA requires that the record on review of a CSRT’s
status determination include all the Government Information,
regardless whether it was all put before the Tribunal.
Judge Randolph lodges two pragmatic objections to this
analysis. First, he argues “it is impossible for us to determine
whether any particular piece of information was obtained or was
not obtained by any particular Recorder in any particular
detainee’s case” because “Recorders ... did not save the
information they obtained unless” they forwarded it “to the
Tribunal.” Stmt. of Randolph, J., at 5-6. Judge Randolph is
correct – which is why the panel held the Government could
people “preparing materials for use by the CSRT board members did
not know whether they had examined all available information or even
why they possessed some pieces of information but not others;” and
“the case writer or Recorder, without proper experience or a basis for
giving context to information, often rejected some information
arbitrarily while accepting other information without any articulable
rationale”); Decl. of James M. McGarrah, Rear Admiral (Ret.), U.S.
Navy ¶¶ 4-6, 10-13 (May 31, 2007) (stating that after September 1,
2004 the Recorder did not “personally collect[] the Government
Information” and that the Recorder withheld from the Tribunal
exculpatory Government Information if in his view it was
“duplicative” or “if it did not relate to a specific allegation being made
against the detainee”).
7
either “reassemble the Government Information it did collect or
... convene a new CSRT.” Bismullah II, 503 F.3d at 141-42.6
Second, Judge Randolph argues that “at most ... the record
on review should consist only of the evidence before the
Tribunal plus any exculpatory information the government has
discovered.” Stmt. of Randolph, J., at 6. Of course, the
Recorder is supposed to forward all the exculpatory Government
Information to the Tribunal. See E-1 § H(4); E-2 §§ B(1), C(6).
But the court is no more able than the CSRT itself to determine
whether the Recorder withheld any exculpatory Government
Information from the CSRT – unless, that is, subject to the
national security limitations discussed below, counsel may see
and draw the attention of the court to any arguably exculpatory
Government Information the Recorder did not put before the
Tribunal. See Decl. of Stephen Abraham, Lieutenant Colonel,
U.S. Army Reserve ¶¶ 10-17 (June 15, 2007) (“asked to confirm
and represent in a statement to be relied upon by the CSRT
board members that the [originating intelligence] organizations
did not possess ‘exculpatory information’ relating to [detainees
who were] the subject of the CSRT, ... [I could not] reach [such]
a conclusion ... without knowing that I had seen all information,
[but I] was never told that the information that was provided [to
me by the originating organizations] constituted all available
information”).
6
The Government is reportedly now “review[ing] ... whether to
conduct new hearings” out of concern that it may not have “take[n]
everything into consideration when [it] did the original” CSRTs.
William Glaberson, New Detention Hearings May Be Considered,
N.Y. TIMES, Oct. 14, 2007 (quoting Capt. Theodore Fessel, Jr.),
available at
http://www.nytimes.com/2007/10/14/us/14cnd-gitmo.html.
8
One need not impute to the Recorder negligence much less
bad faith to see that the DTA requires the court to review his
adherence to the DoD Regulations. Because the DoD
Regulations assign to the Recorder a central role in the CSRT
process, to ignore the actions of the Recorder – and especially
to ignore the evidence the Recorder did not put before the
Tribunal – would render utterly meaningless judicial review
intended to ensure that status determinations are made
“consistent with” the DoD Regulations. DTA § 1005(e)(2)(C).
Unlike the final decision rendered in a criminal or an agency
proceeding, which is the product of an open and adversarial
process before an independent decisionmaker, a CSRT’s status
determination is the product of a necessarily closed and
accusatorial process in which the detainee seeking review will
have had little or no access to the evidence the Recorder
presented to the Tribunal, little ability to gather his own
evidence, no right to confront the witnesses against him, and no
lawyer to help him prepare his case, and in which the
decisionmaker is employed and chosen by the detainee’s
accuser. See E-1 §§ A, B, C(1), C(3), E(2), E(4), F, G(2), G(8),
G(9), H(7).7 As a result, the Recorder’s failure to adhere to the
DoD Regulations can influence the outcome of the proceeding
to a degree that a prosecutor or an agency staff member cannot;
as a practical matter, the Recorder may control the outcome.
For this court to ignore that reality would be to proceed as
though the Congress envisioned judicial review as a mere
7
The detainee obviously cannot be given access to the classified
portion of the Government Information. The detainee’s Personal
Representative, who is “neither a lawyer nor [the detainee’s]
advocate,” E-3 § D, is not obligated to but “may share the unclassified
portion of the Government Information with the detainee.” E-1 §§
F(8), G(8), H(7).
9
charade when it enacted the DTA. Thus, the analogy Judge
Henderson draws between our review of status determinations
under the DTA and our review of agency decisions, Stmt. of
Henderson, J., at 3-4, is inapt.
Judge Henderson’s comparison of a status determination
proceeding before a CSRT to a probable cause hearing for a
criminal defendant is likewise wide of the mark. She asks, “If
we can determine whether the preponderance of the evidence
supports a probable cause finding sufficient to hold an arrestee
for trial without knowing (much less, reviewing) all the evidence
in the prosecutor’s possession, can we not do so in reviewing the
evidence supporting the ‘enemy combatant’ designation?” Stmt.
of Henderson, J., at 2-3. The critical question, however, is not
whether it is possible for the court to review the determination
of a CSRT based solely upon the evidence that was before the
CSRT, but whether that would be the presumably meaningful
review the Congress prescribed. Note also that a panoply of
constitutional and statutory protections ensures that a person
imprisoned after a probable cause hearing will receive a speedy
trial and be convicted or released, thereby mitigating the impact
of an erroneous finding of probable cause predicated upon
limited and possibly one-sided evidence. In contrast, the
determination of a CSRT is only a determination of the
detainee’s status as an enemy combatant.8 Thereafter, it may be
8
The DoD Regulations define an enemy combatant as “an
individual who was part of or supporting Taliban or al Qaida forces,
or associated forces that are engaged in hostilities against the United
States or its coalition partners.” E-1 § B; see also Hamdi v. Rumsfeld,
542 U.S. 507, 518 (2004): “The purpose of detention is to prevent
captured individuals from returning to the field of battle and taking up
arms once again.” The Government reportedly “hope[s] to try
10
that nothing prevents the Government from holding an enemy
combatant “for the duration of the relevant conflict.” Hamdi v.
Rumsfeld, 542 U.S. 507, 518-21 (2004)9; see Boumediene v.
Bush, 476 F.3d 981, 988-94 (D.C. Cir. 2007) (holding alien
detained as enemy combatant at Guantánamo Bay has no
constitutional right to writ of habeas corpus), cert. granted, 127
S. Ct. 3078 (June 29, 2007) (No. 06-1195).
Finally, Judge Randolph raises the concern that “sharing
[the Government Information] with private counsel [will] give[]
rise to a severe risk of a security breach.” Stmt. of Randolph, J.,
at 6. The panel, however, accommodated, to the full extent
requested by the Government, its position that certain types of
eventually as many as 80 of the 305 detainees at Guantánamo,”
William Glaberson, Witness Names to Be Withheld From Detainee,
N.Y. TIMES, Dec. 1, 2007, available at
http://www.nytimes.com/2007/12/01/us/nationalspecial3/01gitmo.h
tml, which suggests that, if the Government intends to continue
holding the remaining 225 detainees, it intends to do so solely upon
the basis of their status determinations.
9
The Supreme Court left open the question whether the
Government may subject an enemy combatant to an “indefinite or
perpetual detention.” Hamdi, 542 U.S. at 521 (“[W]e understand
Congress’ grant of authority for use of ‘necessary and appropriate
force’ to include the authority to detain for the duration of the relevant
conflict, and our understanding is based on longstanding law-of-war
principles. If the practical circumstances of a given conflict are
entirely unlike those of the conflicts that informed the development of
the law of war, that understanding may unravel. But that is not the
situation we face as of this date.”) (quoting Authorization for Use of
Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)).
11
Government Information cannot be disclosed to the petitioners’
counsel without jeopardizing national security. The panel
“provid[ed], just as the Government urged, that it may withhold
from the petitioners’ counsel any Government Information that
is either ‘highly sensitive information, or ... pertain[s] to a
highly sensitive source or to anyone other than the detainee,’” as
long as the Government makes the withheld information
available to the court for review in camera. Bismullah II, 503
F.3d at 142 (quoting Bismullah I, 501 F.3d at 187). The panel
also stressed that, under the DoD Regulations, “‘information in
the possession of the U.S. Government bearing on the issue of
whether the detainee meets the criteria to be designated as an
enemy combatant’ comes within the definition of Government
Information only if it is ‘reasonably available.’” Bismullah II,
503 F.3d at 141 (quoting E-1 § E(3)); see also Bismullah I, 501
F.3d at 180, 192. And, as the panel observed, an “originating
agency” may, pursuant to the DoD Regulations, “decline[] to
authorize [classified information] for use in the CSRT process,”
presumably for reasons of national security, in which case that
classified information is deemed “not reasonably available” and
accordingly is not Government Information. E-1 § D(2); see
Bismullah II, 503 F.3d at 142-43. If these options are
insufficient to safeguard national security, then the Secretary of
Defense, to whom the DTA assigns responsibility for
establishing the standards and procedures that govern CSRTs,
may revise the DoD Regulations.
Judge Brown criticizes the panel’s “reliance” upon the term
“reasonably available” because it “provides not a process-based
definition, but an abstract legal standard.” Stmt. of Brown, J.,
at 1. The panel, however, did not invent the “reasonably
available” standard; it is a feature of the controlling DoD
Regulations. Further, the “reasonably available” standard is not
12
as open-ended as Judge Brown suggests, in important part
because, as just noted, the national security agencies may
withhold classified information from the Recorder, thereby
rendering it “not reasonably available.”
In closing, I note that the Supreme Court, in the order
granting a writ of certiorari in Boumediene, stated that “it would
be of material assistance to consult any decision” reached by this
court in Bismullah. Judge Henderson contends that “we do the
Supreme Court no favor by not fully considering potentially
determinative matters.” Stmt. of Henderson, J., at 6 n.6. After
merits briefing, oral argument, an opinion by the panel (in which
Judge Henderson joined), a petition for rehearing and a response
thereto, the petitioners’ post-argument letter filed pursuant to
FRAP 28(j) and the Government’s response thereto, and a
supplemental opinion by the panel (in which Judge Henderson
again joined), there can be no doubt that all the issues presented
in the parties’ procedural motions have been aired and fully
considered.
GARLAND, Circuit Judge, concurring in the denial of
rehearing en banc: On June 29, 2007, the Supreme Court
granted the detainees’ petition for certiorari in Boumediene v.
Bush, 476 F.3d 981 (D.C. Cir. 2007). In granting that petition,
the Court advised the parties that “it would be of material
assistance to consult any decision in Bismullah, et al. v. Gates,
. . . currently pending in the United States Court of Appeals for
the District of Columbia Circuit,” and that “supplemental
briefing will be scheduled upon the issuance of any decision” in
that case. Boumediene v. Bush, 127 S. Ct. 3078 (2007). The
Supreme Court heard oral argument in Boumediene on
December 5, 2007. Were we to grant en banc review in
Bismullah, we would plainly delay our decision and hence the
Supreme Court’s disposition of Boumediene. As delaying the
latter is contrary to the interests of all of the parties, as well as
to the public interest, I concur in the denial of rehearing en banc
without reaching the merits.
KAREN LECRAFT HENDERSON, Circuit Judge, with whom
Circuit Judges SENTELLE, RANDOLPH, and KAVANAUGH join,
dissenting from the denial of rehearing en banc: The Detainee
Treatment Act of 2005 (DTA) gives exclusive jurisdiction to
this Court “to determine the validity of any final decision of
[the] Combatant Status Review Tribunal that an alien is properly
detained as an enemy combatant.” Pub. L. No. 109-148
§ 1005(e)(2)(A), 119 Stat. 2680, 2742 (Dec. 30, 2005). While
the DTA is not unique in this respect, to me our exclusive
jurisdiction underscores the charge given to our entire Court to
hear and weigh all issues fairly encompassed in determining the
validity of the CSRT’s decision. Granted, we are now only at
the preliminary stage of that determination, that is, resolving
procedural motions. In two respects, however, I am convinced
that our entire Court should hear and consider the protective
order which both sides have asked us to enter. Accordingly, I
dissent from the en banc denial.1
I. The Scope of the Record on Review.
Bismullah II attempts to correct the Government’s
overreading of Bismullah I’s description of the record on review
by, first, repeating the panel’s reading of the Government
Information (defined by DoD Regulation E-1 § E(3)) as
including only information “reasonably available” (again,
specified by DoD Regulation E-1 § E(3)) and, then, by
concluding that “information without regard to whether it is
‘reasonably available’ is clearly not required by Bismullah I.”
Bismullah II, 503 F.3d at 141. Bismullah II, however, leaves
1
I note that, as a member of the panel whose original opinion
issued on July 20, 2007, Bismullah v. Gates, 501 F.3d 178 (D.C. Cir.
2007) (Bismullah I), and whose opinion denying the Government’s
petition for panel rehearing issued on October 3, 2007, Bismullah v.
Gates, 503 F.3d 137 (D.C. Cir. 2007) (Bismullah II), I joined both
opinions. Nevertheless, as set forth hereinbelow, matters remain that
were unaddressed at the panel level—matters that may be
determinative and should at least be heard and weighed by all of us.
2
intact the panel’s original conclusion that “whether the
preponderance of the evidence supported the conclusion of the
Tribunal, cannot be ascertained without consideration of all the
Government Information.” Id. at 140 (citing Bismullah I, 501
F.3d at 185-86.)
Why we are unable to otherwise conduct our limited review
of the validity of the CSRT’s decision is left largely
unexplained.2 But in the criminal context—where the
protections accorded the arrestee are greater and our review is,
accordingly, more searching—our Court is plainly able to
review the conduct of a preliminary hearing without knowing all
the evidence the prosecution has gathered. The reason, of
course, is that the preliminary hearing is limited in scope.
Coleman v. Burnett, 477 F.2d 1187, 1201 (D.C. Cir. 1973)
(“The preliminary hearing is not a minitrial of the issue of guilt,
. . . ‘A preliminary hearing,’ the Supreme Court has said, ‘is
ordinarily a much less searching exploration into the merits of
a case than a trial, simply because its function is the more
limited one of determining whether probable cause exists to hold
the accused for trial.’” (quoting Barber v. Page, 390 U.S. 719,
725 (1968))). So too is the CSRT’s mission: that is, at this
stage, it must decide simply whether the detainee is an enemy
combatant. Only if he is one can he, presumably, then be held
for trial before a military commission. If we can determine
whether the preponderance of the evidence supports a probable
cause finding sufficient to hold an arrestee for trial without
knowing (much less, reviewing) all the evidence in the
prosecutor’s possession, can we not do so in reviewing the
2
Bismullah I does note that “the court cannot, as the DTA charges
us, consider whether a preponderance of the evidence supports the
Tribunal’s status determination without seeing all the evidence, any
more than one can tell whether a fraction is more or less than one half
by looking only at the numerator and not at the denominator.”
Bismullah I, 501 F.3d at 186.
3
evidence supporting the “enemy combatant” designation?3 And
should not all of us at least hear the arguments for and against,
especially in the national security context? And especially given
the showing the Government has made in both its unclassified
and ex parte and in camera submissions? Bismullah II, 503 F.3d
at 138 n.1.
Even if we use the administrative agency analogy instead,
the Supreme Court has made clear that we have no license to
“create” a record consisting of more than the agency itself had
before it. Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[t]he focal
point for judicial review should be the administrative record
already in existence, not some new record made initially in the
reviewing court.”); Doraiswamy v. Sec’y of Labor, 555 F.2d
832, 839-40 (D.C. Cir. 1976) (“This circumscription [that
review be confined to the administrative record], which the
Court has consistently honored in other cases, stems from well
ingrained characteristics of the administrative process. The
administrative function is statutorily committed to the agency,
not the judiciary. A reviewing court is not to supplant the agency
3
A detainee is not a criminal defendant. “The capture and
detention of lawful combatants and the capture, detention, and trial of
unlawful combatants, by ‘universal agreement and practice,’ are
‘important incident[s] of war.’” Hamdi v. Rumsfeld, 542 U.S. 507,
518 (2004) (quoting Ex parte Quirin, 317 U.S. 1, 28, 30 (1942)).
“The purpose of detention is to prevent captured individuals from
returning to the field of battle and taking up arms once again.” Id.
(citing Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red
Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor
punishment, but solely protective custody, the only purpose of which
is to prevent the prisoners of war from further participation in the
war’” (quoting decision of Nuremberg Military Tribunal, reprinted in
41 Am. J. Int’l L. 172, 229 (1947))); W. Winthrop, Military Law and
Precedents 788 (rev. 2d ed. 1920) (“‘A prisoner of war is no convict;
his imprisonment is a simple war measure’” (citations omitted))).
4
on the administrative aspects of the litigation. . . . The grounds
upon which an administrative order must be judged are those
upon which the record discloses that its action was based . . . .”)
(internal citations, quotations and footnotes omitted); Walter O.
Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 793 (D.C. Cir.
1984) (explaining that the record for the reviewing court is
limited to “that information before the [agency] at the time of
[its] decision, . . . thus excluding ex post supplementation of the
record by either side.”); Mail Order Ass’n of Am. v. U.S. Postal
Serv., 2 F.3d 408, 433-34 (D.C. Cir. 1993) (same). Again,
should we not at least hear and weigh the arguments for and
against in the national security context?
II. Detainees’ Counsel’s Access to Classified Government
Information.
Bimullah II also attempts to corral the Government
Information, much of which, as the Government’s submissions
make clear, is classified, that must be disclosed to the detainees’
counsel by emphasizing the exceptions from disclosure for
information that is “‘highly sensitive . . . or . . . pertain[s] to a
highly sensitive source or to anyone other than the detainee.’”
Bimullah II, 503 F.3d at 142 (quoting Bismullah I, 401 F.3d at
187) (alteration in original).4 Bismullah II, however, may be
unrealistically sanguine about the Government’s resulting
burden if the presumption is that it must disclose all Government
Information except what fits within the exceptions; according to
the Government’s submissions, which, I submit, we are ill-
equipped to second-guess, the exceptions swamp the disclosable
information. Cf. Krikorian v. Dep’t of State, 984 F.2d 461, 464
4
Bismullah I had“presume[d] counsel for a detainee has a ‘need
to know’ all Government Information concerning his client, not just
the portions of the Government Information presented to the
Tribunal.” Bismullah I, 501 F.3d at 187 (emphases added).
5
(D.C. Cir. 1993).5 But the alternative is not necessarily limited
to what Bismullah II describes, namely, “the only solution is [for
the Government] to turn over none of [the Government
Information].” Bismullah II, 503 F.3d at 142. If the record on
review is more limited as discussed supra, the detainees’
counsel’s access likewise contracts. Again, should we not all
consider this alternative?
We have heard by unclassified declarations from Michael V.
Hayden, Director of the Central Intelligence Agency; Gordon
England, Deputy Secretary of the Department of Defense; Keith
Alexander, Director of the National Security Agency; Robert
Mueller, Director of the Federal Bureau of Investigation; and J.
Michael McConnell, Director of National Intelligence. We have
heard by Secret declaration from FBI Director Mueller. And we
have heard ex parte and in camera by Top Secret-SCI
declarations from CIA Director Hayden and NSA Director
Alexander. In the unclassified declarations, the five
officials—charged with safeguarding our country while we are
now at war—have detailed the grave national security concerns
the Bismullah I holding presents. “Without doubt, our
Constitution recognizes that core strategic matters of warmaking
belong in the hands of those who are best positioned and most
politically accountable for making them.” Hamdi, 542 U.S. at
531 (citing Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988)
(noting reluctance of courts “to intrude upon the authority of the
Executive in military and national security affairs”)). In Hamdi,
the Government represented that “military officers who are
engaged in the serious work of waging battle [will] be
5
I leave aside this Court’s likely burden if we do not consider en
banc the scope of the Government Information disclosable to the
detainees’ counsel. As Bismullah II itself notes, “if it is true that most
of the Government Information . . . come[s] within an exception . . .,
the practical effect . . . may yet be that our review . . . is in large part
ex parte.” Bismullah II, 503 F.3d at 143 n.7.
6
unnecessarily and dangerously distracted by litigation half a
world away, and discovery into military operations [will] both
intrude on the sensitive secrets of national defense and result in
a futile search for evidence buried under the rubble of war.”
Hamdi, 542 U.S. at 531-32. The High Court agreed, declaring
“[t]o the extent that these burdens are triggered by heightened
procedures, they are properly taken into account.” Id. at 532. I
believe our Court should likewise take these burdens into
account sitting en banc.6 For the foregoing reasons I dissent
from the denial of rehearing en banc and join Judge Randolph’s
dissent.
6
I note, in granting the detainees’ certiorari petition in Boumediene
v. Bush, 476 F.3d 981 (D.C. Cir. 2007), the Supreme Court advised
that “[a]s it would be of material assistance to consult any decision in
Bismullah et al. v Gates, No. 06-1197, . . . supplemental briefing will
be scheduled” once our Court’s decision issues. Boumediene v. Bush,
127 S. Ct. 3078 (2007). En banc review would plainly delay our
decision and thus tighten the time frame for the supplemental briefing
the Boumediene parties must submit. Nonetheless we do the Supreme
Court no favor by not fully considering potentially determinative
matters, including these herein discussed. Although, as Chief Judge
Ginsburg lists, Stmt. of Ginsburg, C.J., at 12, we have shuffled much
paper in this case, we have yet to consider—with the benefit of
briefing and oral argument—any of the issues raised by the three
dissents from the en banc denial.
RANDOLPH, Circuit Judge, with whom Circuit Judges
SENTELLE, HENDERSON and KAVANAUGH join, dissenting from
the denial of rehearing en banc: It has long been my practice not
to write or join opinions on denials of rehearing en banc. See
Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080
(D.C. Cir. 1992). I must now depart from that practice.
According to affidavits of the Directors of the Central
Intelligence Agency, the Federal Bureau of Investigation, and
the National Security Agency and the Director of National
Intelligence, the court’s ruling in these cases endangers national
security. The cases deserve to be reheard and reexamined by the
full court. I therefore dissent from the denial, by a vote of 5 to
5, of rehearing en banc. Here are the reasons.
The panel opinion denying rehearing asserts that the
agencies just mentioned and the Department of Justice,
including the Solicitor General, do not understand the original
opinion. We think these executive departments understand full
well what the panel ordered. The government must file, as the
“record” in each detainee review case, vast reams of classified
information to be shared presumptively with private defense
counsel, regardless whether any of this information was ever
presented to the Combatant Status Review Tribunal, whose
decision is the subject of judicial review. That order is contrary
to the rule and the statute governing the contents of the record
in cases such as these, it violates the restrictions on our
jurisdiction in the Detainee Treatment Act, and it risks serious
security breaches for no good reason.
The Detainee Treatment Act does not specify what shall be
in the record when we review Tribunal decisions. This is
understandable because a separate statute governs “the contents
of the record in all proceedings instituted in the courts of appeals
to enjoin, set aside, suspend, modify, or otherwise review or
enforce orders of administrative agencies, boards, commissions,
and officers.” 28 U.S.C. § 2112(a). Subsection (b) of this
statute, and Rule 16(a) of the Federal Rules of Appellate
2
Procedure, which is based on it, make crystal clear that –
contrary to the panel’s opinions – the record does not include
information never presented to the Combatant Status Review
Tribunal.1 Yet neither of the panel’s two opinions even
mentions Rule 16(a) or § 2112(a).2
Chief Judge Ginsburg, in his opinion concurring in the
denial of rehearing en banc, offers two explanations. The first
is that several other provisions in Title 28 – not applicable here
– differentiate between an “executive agency” and a “military
department.” Stmt. of Ginsburg, C.J., at 2-5. While intended to
show that a Combatant Status Review Tribunal is not an
1
The statute provides that the “record to be filed in the court of
appeals . . . shall consist of the order sought to be reviewed or
enforced, the findings or report upon which it is based, and the
pleadings, evidence, and proceedings before the agency, board,
commission, or officer concerned . . ..” 28 U.S.C. § 2112(b) (italics
supplied). Rule 16(a) of the appellate rules states the same. The
government’s merits brief not only cited Rule 16 but also discussed
why the record it filed was in compliance with the rule. Respondent
Br. 54-55. That discussion sufficiently alerted the panel not only to
the rule but also to the statute: the Advisory Committee Notes to Rule
16 state that “[s]ubdivision (a) is based upon 28 U.S.C. § 2112(b).”
2
The Department of Defense regulation directly on point provides
that the “official record of the Tribunal’s decision” shall consist of:
“(a) A statement of the time and place of the hearing, persons present,
and their qualifications; (b) The Tribunal Decision Report cover sheet;
(c) The classified and unclassified reports detailing the findings of fact
upon which the Tribunal decision was based; (d) Copies of all
documentary evidence presented to the Tribunal and summaries of all
witness testimony. If classified material is part of the evidence
submitted or considered by the Tribunal, the report will be properly
marked and handled in accordance with applicable security
regulations; and (e) A dissenting member’s summary report, if any.”
E-2 §§ (C)(10), (C)(8).
3
“agency” for the purposes of § 2112(b), it indicates the opposite.
In Title 28, “‘agency’ includes any department, independent
establishment, commission, administration, authority, board or
bureau of the United States . . . unless the context shows that
such term was intended to be used in a more limited sense.” 28
U.S.C. § 451. Chief Judge Ginsburg’s citations illustrate how
Congress has limited “agency” in other contexts by using
modifiers such as “executive” and “federal.” Section 2112(b)
contains no such limit. A military department is a “department”
under § 451, and thus an “agency” under § 2112(b). Therefore,
§ 2112(b) applies to a Combatant Status Review Tribunal, which
certainly falls within the ambit of the broad definition of
“agency” in Title 28. The framers of the Administrative
Procedure Act concluded that military commissions would be
covered as “agencies,” unless they were expressly excluded
from the Act. 5 U.S.C. § 551(1)(F).3
3
The Attorney General’s Manual refers to courts martial, military
commissions, and other military authorities as “agencies of the United
States,” Attorney General’s Manual on the Administrative Procedure
Act 10 (1947), and then explains that they have been “specifically
exempted” from the APA in what is now 5 U.S.C. § 551(1)(F), Id. at
12.
Chief Judge Ginsburg argues that Combatant Status Review
Tribunals are sui generis and for that reason are exempt from the
requirements of the APA. We agree that the APA exempts Combatant
Status Review Tribunals, but not because they are sui generis.
Instead, the detention of enemy combatants, and the review processes
related to them, are military “functions” the APA specifically exempts.
The writer’s opinion in Al Odah v. United States, 321 F.3d 1134, 1149
(D.C. Cir. 2003), attached hereto as an addendum, explains why. In
any event, Chief Judge Ginsburg’s argument misses the point. Our
review in this case is controlled not by the APA, but by 28 U.S.C.
§ 2112. The Chief Judge does not explain why the broad, unmodified
term “agency” in § 2112 excludes a Combatant Status Review
4
The Chief Judge’s second explanation for disregarding
§ 2112(b) exposes still another problem with the panel’s
reasoning. He writes that to follow § 2112(b)’s law governing
the contents of the record “would be to preclude the court from
discharging the review function assigned to it in the” Detainee
Treatment Act. Stmt. of Ginsburg, C.J., at 5. What exactly is
this “review function”? Apparently the idea is that the court will
look at how well the Recorder did his job in gathering
“Government Information” and how well he culled it in
presenting the information to the Tribunal as “Government
Evidence.”4 Id. at 5-9.
Tribunal.
4
Under Defense Department regulations, “Government
Information” is “reasonably available information in the possession of
the U.S. Government bearing on the issue of whether the detainee
meets the criteria to be designated as an enemy combatant.” E-1
§ (E)(3). “Government Evidence” is “such evidence in the
Government Information as may be sufficient to support the detainee’s
classification as an enemy combatant.” E-1 § (H)(4).
The panel did not seem to appreciate the large difference between
“information” and “evidence.” It stated that “whether the
preponderance of the evidence supported the conclusion of the
Tribunal, cannot be ascertained without consideration of all the
Government Information.” Bismullah v. Gates, slip op. at 5
(Bismullah II), citing Bismullah v. Gates, 501 F.3d 178, 186 (D.C. Cir.
2007) (Bismullah I). That rationale could not hold and the Chief Judge
seems to have abandoned it. In legal proceedings before courts and
other adjudicative bodies, the classic definition of “evidence” is “any
matter of fact which is furnished to a legal tribunal otherwise than by
reasoning, as the basis of inference in ascertaining some other matter
of fact.” James B. Thayer, Presumptions and the Law of Evidence, 3
HARV. L. REV. 141, 143 (1889). Moreover, the Detainee Treatment
Act, in speaking of a preponderance of the evidence, refers to “the
requirement” that the Tribunal’s conclusion be so supported. DTA
5
Forget for the moment that the Detainee Treatment Act
limits our jurisdiction to review of the Tribunal’s status
determination. DTA § 1005(e)(2)(C)(i). Ignore as well that
under the controlling regulations it is the Tribunal, not the court,
who supervises the Recorder. E-1 § (C)(2). Even so the
question remains – how does the court’s order requiring the
government to assemble a record consisting of all “reasonably
available” information bearing on the detainee’s status enable
the court to determine whether the Recorder adequately
performed his job in gathering information? This is an essential
question and neither the panel nor Chief Judge Ginsburg has
ever given a satisfactory answer to it.
Perhaps the panel envisioned our court examining the
thousands of documents5 making up the “record” on review and
seeing how much of this information escaped the Recorder’s
attention. But the government has pointed out the fallacy in that
vision, which contemplates a comparative judgment. The
Recorders, operating before Congress passed the Detainee
Treatment Act, did not save the information they obtained unless
it became part of the permanent record when they presented it to
the Tribunal. So even if this were a proper function for our
court, it is impossible for us to determine whether any particular
§ 1005(e)(2)(C)(i). The reference is to Defense Department regulation
E-1 § (G)(11) dealing with the burden of proof. In context it is clear
as a bell that the “evidence” in the regulation and in the Act means the
evidence before the Tribunal, not some pile of information the
Recorder decided not to present. The panel thus erred in saying that
to determine whether there was enough evidence to support the
Tribunal’s decision, the court had to look through information the
Tribunal never saw.
5
The government predicts that for each detainee, the record
envisioned by the panel will consist of “hundreds of thousands[] of
documents.” Pet. for Rehearing 10.
6
piece of information was obtained or was not obtained by any
particular Recorder in any particular detainee’s case.
The original panel opinion offered a different rationale than
the one the Chief Judge now proposes. It was that the detainee’s
counsel would need to see Government Information “to present
an argument that the Recorder withheld exculpatory
information.” Bismullah I, 501 F.3d at 185-86. But the panel’s
remedy far outruns this rationale. Even if one accepted the
exculpatory information rationale – which would require the
court to disregard § 2112(b) and Rule 16(a) – this would at most
lead to a conclusion that the record on review should consist
only of the evidence before the Tribunal plus any exculpatory
information the government has discovered. Yet the panel has
required all information, exculpatory and incriminatory alike,
bearing on the detainee’s status to be deposited with the court
and presumptively made available to defense counsel.
Why? We can be sure that the assembled information
cannot be used in our judicial review of the Tribunal’s status
determination. And we can also be sure that its assembly and
filing in this court, and potential sharing with private counsel,
gives rise to a severe risk of a security breach. That is the
position of the agencies charged with protecting the country
against terrorist attacks, who warn that foreign intelligence
services will cease cooperating with the United States if the
panel opinion stands. Their concerns deserve the attention of
the full court on rehearing en banc.
One final point. Judge Garland votes against en banc, not
because he thinks the case unimportant, but because he believes
it is more important to advance our decision-making in order to
assist the Supreme Court. Stmt. of Garland, J., at 1. We think
that it is more important to decide the case correctly and that a
correct decision would be of more assistance to the High Court.
7
For the foregoing reasons we dissent from the denial of
rehearing en banc.
ADDENDUM
RANDOLPH, Circuit Judge, concurring:
***
The United States or its officers may be sued only if there
is a waiver of sovereign immunity. See, e.g., Dep’t of Army v.
Blue Fox, Inc., 525 U.S. 255, 260 (1999). We have held that the
Alien Tort Act, whatever its meaning, does not itself waive
sovereign immunity. Industria Panificadora, S.A. v. United
States, 957 F.2d 886, 886 (D.C. Cir. 1992) (per curiam);
Sanchez-Espinoza, 770 F.2d at 207; see Canadian Transp. Co.
v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980). The
detainees therefore rely on the waiver provision in the
Administrative Procedure Act, 5 U.S.C. § 702, which states:
“An action in a court of the United States seeking relief other
than money damages and stating a claim that an agency or an
officer or employee thereof acted or failed to act in an official
capacity . . . shall not be dismissed . . . on the ground that it is
against the United States . . ..”
Although relying on the APA's waiver for agencies, the
detainees do not identify which “agency” of the United States
they have in mind. They have sued the President in each case,
but the President is not an “agency” under the APA and the
waiver of sovereign immunity thus does not apply to him. See
Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992);
Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). This
leaves the military. The APA specifically excludes from its
definition of “agency” certain functions, among which is
8
“military authority exercised in the field in time of war or in
occupied territory.” 5 U.S.C. §§ 551(1)(G), 701(b)(1)(G); see
id. §§ 553(a)(1) & 554(a)(4), exempting military “functions”
from the APA's requirements for rulemaking and adjudication;
United States ex rel. Schonbrun v. Commanding Officer, 403
F.2d 371, 375 n.2 (2d Cir. 1968) (Friendly, J.). The district
court ruled, in an alternative holding, that because of the military
function exclusion, the APA does not waive sovereign
immunity. Rasul v. Bush, 215 F. Supp. 2d 55, 64 n.10 (D.D.C.
2002). I believe this is correct.
Each of the detainees, according to their pleadings, was
taken into custody by American armed forces “in the field in
time of war.” I believe they remain in custody “in the field in
time of war.” It is of no moment that they are now thousands of
miles from Afghanistan. Their detention is for a purpose
relating to ongoing military operations and they are being held
at a military base outside the sovereign territory of the United
States. The historical meaning of “in the field” was not
restricted to the field of battle. It applied as well to “organized
camps stationed in remote places where civil courts did not
exist,” Kinsella v. United States ex rel. Singleton, 361 U.S. 234,
274 (1960) (Whittaker, J., joined by Stewart, J., concurring in
part and dissenting in part). To allow judicial inquiry into
military decisions after those captured have been moved to a
“safe” location would interfere with military functions in a
manner the APA's exclusion meant to forbid. We acknowledged
as much in Doe v. Sullivan, 938 F.2d 1370, 1380 (D.C. Cir.
1991), when then-Judge Ruth Bader Ginsburg stated for the
court that the APA's military function exclusion applied to cases
in which a court was asked to “review military commands made
. . . in the aftermath of [ ] battle.” It is also of no moment that
the detainees were captured without Congress having declared
war against any foreign state. “Time of war,” as the APA uses
it, is not so confined. The military actions ordered by the
9
President, with the approval of Congress, are continuing; those
military actions are part of the war against the al Qaeda terrorist
network; and those actions constitute “war,” not necessarily as
the Constitution uses the word, but as the APA uses it. See
Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000)
(Randolph, J., concurring in the judgment); Mitchell v. Laird,
488 F.2d 611, 613 (D.C. Cir. 1973). The detainees are right not
to contest this point. To hold that it is not “war” in the APA
sense when the United States commits its armed forces into
combat without a formal congressional declaration of war would
potentially thrust the judiciary into reviewing military
decision-making in places and times the APA excluded from its
coverage.
***
Al Odah v. United States, 321 F.3d 1134, 1149-50 (D.C. Cir.
2003) (Randolph, J., concurring).
BROWN, Circuit Judge, dissenting from the denial of
rehearing en banc: I appreciate the panel’s efforts to clarify
the Government’s production burden in these CSRT reviews.
The panel assumes the phrase “reasonably available”
adequately defines the scope of the record because that phrase
comes from the CSRT regulations. However, because the
record so defined does not arise naturally from the
proceedings, the panel may have left much to litigate. The
Government is clearly uncertain about what information is
“reasonably available,” and is searching laboriously through
“all relevant federal agencies” to make sure it gathers at least
that much information. Pet. at 10. The panel has, naturally,
refused to opine on whether the results of such an exhaustive
search are reasonably available, Bismullah v. Gates, 503 F.3d
137, 141 n.3 (D.C. Cir. 2007) (denial of panel rehearing)
(Bismullah II), but it seems to think that too intensive a search
would be unreasonable, see id. at 142. The panel avers that it
did not require “[a] search for information without regard to
whether it is ‘reasonably available.’” Id. at 141. But reliance
on this sort of verbal formulation may confuse rather than
clarify the obligation. Using the phrase “reasonably
available” provides not a process-based definition, but an
abstract legal standard. If the Government must populate the
record based on this standard, it will have to conduct a new
search for materials that satisfy it. Under the panel’s order,
the record may be congruent with the universe of information
identified by the regulations, but it bears no direct relationship
to the CSRT process—or any process at all. Although the
panel might have been right to reject the Government’s offer
of only the record that a CSRT considered, that version of the
record is at least the definite product of a process that actually
happened.1 The likely result of relying on a theoretical record
1
As a corollary, reconvening a CSRT, as the panel proposes,
Bismullah II, 503 F.3d at 141, will only postpone the issue, because
the abstract set of Government Information will have no relation to
2
will be continued litigation over the inclusion or exclusion of
various pieces of information, so that any review of the merits
of these cases will be substantially delayed. This would be
fair to neither the Government nor the detainees.
The denial of rehearing has generated four separate
opinions disputing the proper scope of production; this
continuing debate suggests the court has not yet found the
right paradigm. Although we strain for familiar analogies to
guide us, none of them is apt, because they all miss a central
point: CSRTs are not adversarial proceedings. Detainees are
not represented by advocates, but only by Personal
Representatives whose sole duty is to assist, not defend, them.
Conversely, the Recorders and the CSRTs have an obligation,
under the procedures, to find and examine exculpatory
evidence. That being so, it seems improbable that the
Government need turn over only the Record of Proceedings
compiled after the CSRT, as it originally urged, Bismullah v.
Gates, 501 F.3d 178, 185 (D.C. Cir. 2007) (Bismullah I). On
the other hand, to demand everything means engaging this
court in de novo review of the CSRTs, as the panel
acknowledges. See Bismullah II, 503 F.3d at 139–40. Is such
review what Congress intended when it passed the Detainee
Treatment Act?
Congress mandated this court to review the CSRTs. An
adversarial appeal from a nonadversarial hearing is an
unfamiliar process in this country, but it is common in other
parts of the world. Indeed, since the military’s prisoner-of-
war procedures were developed to implement international
law, Army Reg. 190-8 §§ 1-1(b)(3), 1-6(a) (citing Geneva
that proceeding either. The court will still review whether the
Recorder for the new panel gathered all reasonably available
information. Bismullah I, 501 F.3d at 185; Stmt. of Ginsburg, C.J.,
at 5–6.
3
Convention Relative to the Treatment of Prisoners of War
art. 5, Aug. 12, 1949, 6 U.S.T. 3316), it is conceivable that
they were intentionally modeled on traditional inquisitorial
procedures. Many aspects seem similar, including the role of
the Recorder as both judge and investigator. Not only does he
prepare the “official record of the Tribunal’s decision,”
Memo. from the Sec’y of the Navy on Implementation of
Combatant Status Review Tribunal Procedures Encl. 2
§ C(10) (July 29, 2004); he also gathers the Government
Information, which includes all “reasonably available
information. . . bearing on. . . whether the detainee” is an
enemy combatant, id. Encl. 1 § E(3), including evidence both
for and against that determination. Cf. JACQUELINE
HODGSON, FRENCH CRIMINAL JUSTICE 30 (2005)
(investigating magistrate must “gather[] evidence which
might exculpate as well as incriminate the suspect”). Most
important for this case, a civil-law inquisition prepares a well-
defined record for review, consisting of the material that the
magistrate actually gathered. Bron McKillop, Anatomy of a
French Murder Case, 45 AM. J. COMP. L. 527, 544–46
(1997). Naturally, this record contains significantly less
information than what the magistrate could have gathered
because it was available.
My point is not to hold out continental criminal
procedure as the perfect model for CSRT review, although it
may be the closest (and may actually have been the original)
model for the military’s prisoner-of-war tribunals. Nor, of
course, is it a source of law, although it can be a useful source
of ideas given that the military’s prisoner-of-war regulations
expressly advert to international law. Nevertheless, this court
could define the record in other ways than the “all” required
by the panel or the “nothing” offered by the Government, and
this definition is one of a set of decisions this court should
make about how we are to conduct this novel form of review.
4
I am now convinced we should have begun by discussing the
problems much more thoroughly en banc. Accordingly, I
dissent from the denial of rehearing.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided October 3, 2007
No. 06-1197
HAJI BISMULLAH A/K/A HAJI BISMILLAH, AND A/K/A HAJI
BESMELLA,
HAJI MOHAMMAD WALI, NEXT FRIEND OF HAJI BISMULLAH,
PETITIONERS
v.
ROBERT M. GATES, SECRETARY OF DEFENSE,
RESPONDENT
No. 06-1397
HUZAIFA PARHAT, ET AL.,
PETITIONERS
v.
ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
RESPONDENTS
On Petition for Rehearing
Peter D. Keisler, Acting Attorney General, Paul
Clement, Solicitor General, Gregory G. Katsas, Acting
2
Associate Attorney General, Gregory G. Garre, Deputy
Solicitor General, Jonathan F. Cohn, Deputy Assistant Attorney
General, and Douglas N. Letter, Robert M. Loeb, August E.
Flentje, and Catherine Y. Hancock, Attorneys, U.S. Department
of Justice, were on the petition for rehearing for respondent.
John B. Missing, Jeffrey I. Lang, and Jennifer R. Cowan,
for Huzaifa Parhat, et al., and Sabin Willett, Rheba Rutkowski,
Neil McGaraghan, Jason S. Pinney, and Susan Baker Manning
for Haji Bismullah, et al., were on the joint opposition to the
petition for rehearing.
Before: GINSBURG, Chief Judge, and HENDERSON and
ROGERS, Circuit Judges.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: The petitioners are eight men
detained at the Naval Station at Guantánamo Bay, Cuba. Each
petitioner seeks review under the Detainee Treatment Act
(DTA), Pub. L. No. 109-148, § 1005(e)(2), 119 Stat. 2742-43
(Dec. 30, 2005), of the determination by a Combatant Status
Review Tribunal (CSRT or Tribunal) that he is an “enemy
combatant.” In our opinion of July 20, 2007, we addressed
various procedural motions filed by the Government and the
petitioners to govern our review of the merits of the detainees’
petitions. Bismullah v. Gates (Bismullah I), No. 06-1197. The
Government then petitioned for rehearing or, in the alternative,
suggested rehearing en banc. The petition for rehearing
addresses two distinct aspects of Bismullah I: the scope of the
record on review before the court; and the extent to which the
Government must disclose that record to the petitioners’
3
counsel.1 We deny the Government’s petition for rehearing for
the reasons discussed below.
I. The Scope of the Record on Review.
As we explained in Bismullah I, the Secretary of
Defense, in a July 2004 Memorandum for the Secretary of the
Navy, established skeletal procedures for the conduct of a CSRT
proceeding with respect to a foreign national held at
Guantánamo to “review the detainee’s status as an enemy
combatant.” Slip Op. 4. The Secretary of the Navy then issued
a memorandum elaborating upon those procedures in three
enclosures, known as E-1, E-2, and E-3 (collectively, the DoD
Regulations). See id. The DoD Regulations provide that the
Tribunal is “authorized,” insofar as is relevant here, to
[r]equest the production of such reasonably available
information in the possession of the U.S. Government
bearing on the issue of whether the detainee meets the
criteria to be designated as an enemy combatant,
including information generated in connection with the
1
In support of its petition for rehearing, the Government attached
the unclassified declarations of Michael V. Hayden, Director of
Central Intelligence; Gordon England, Deputy Secretary of
Defense; Keith Alexander, Director of the National Security
Agency; Robert Mueller, Director of the Federal Bureau of
Investigation; and J. Michael McConnell, Director of National
Intelligence. The Government also attached the Secret declaration
of Mr. Mueller. In addition, the Government sought leave to file ex
parte and in camera the Top Secret-SCI declarations of Mr.
Alexander and Mr. Hayden for review by judges only. Because the
Top Secret-SCI declarations are not material to our disposition of
the Government’s petition for rehearing, we deny the motion for
leave to file the Top Secret-SCI declarations insofar as it pertains to
the Government’s petition for rehearing by the panel.
4
initial determination to hold the detainee as an enemy
combatant and in any subsequent reviews of that
determination, as well as any records, determinations, or
reports generated in connection with such proceedings
(cumulatively called hereinafter “Government
Information”).
E-1 § E(3); see Slip Op. 5. The Recorder must collect the
Government Information, examine it, and then decide which
information to pass on to the Tribunal. Slip Op. 5; E-2 § C(1).
The Recorder is required to
present to the Tribunal such evidence in the Government
Information as may be sufficient to support the
detainee’s classification as an enemy combatant ... (the
evidence so presented shall constitute the “Government
Evidence”) ... [and, in] the event the Government
Information contains evidence to suggest that the
detainee should not be designated as an enemy
combatant, the Recorder shall also separately provide
such evidence to the Tribunal.
E-1 § H(4); E-2 § B(1), C(6).
In Bismullah I the Government argued that the record on
review should consist solely of the Record of Proceedings,
which, under the DoD Regulations, includes only such
Government Information as the Recorder forwarded to the
Tribunal. See Slip Op. 6, 12; E-1 § I(4); E-2 § C(8). Taking the
view that the record on review should consist of “all evidence
reasonably available to the Government,” the petitioners
contended that the record should include all of the Government
Information. Slip Op. 10. We held the record on review must
include all the Government Information because the DTA
requires the court to review the CSRT determination to ensure
5
it is “consistent with the standards and procedures specified by
the Secretary of Defense ... (including the requirement that the
conclusion of the Tribunal be supported by a preponderance of
the evidence ... ).” DTA § 1005(e)(2)(C).2 Slip Op. 13.
Whether the Recorder selected to be put before the Tribunal all
exculpatory Government Information, as required by the DoD
Regulations, and whether the preponderance of the evidence
supported the conclusion of the Tribunal, cannot be ascertained
without consideration of all the Government Information. Slip
Op. 13-15.
In its petition for rehearing, the Government asserts that
Bismullah I defined the record on review to include “a broad and
amorphous class of material” out of “a desire to ensure that
exculpatory information was properly considered.” The
Government accordingly objects to Bismullah I on three
grounds.
First, the Government contends that the Congress
“modeled” the DTA on Army Regulation 190-8, which governs
how the Army determines the status of an enemy detainee who
claims prisoner-of-war status under the Geneva Conventions.
The Government asserts that Army Regulation 190-8 does not
require “that the military turn over all information in any file
concerning a detainee” to the military tribunal that determines
his status as a prisoner of war. Putting aside a most obvious
distinction that status determinations made pursuant to Army
Regulation 190-8 are not subject to direct judicial review, we
believe the more important point is that neither does Bismullah
2
We also held the record on review includes any evidence submitted
to the Tribunal by the detainee or his Personal Representative, Slip
Op. 15, a matter not in dispute here. Nor is it disputed that any
material requested by the Tribunal pursuant to the DoD Regulations
is part of the record on review.
6
I require the Government to turn over to the CSRT all
information in its files concerning a detainee; adopting the
definition of Government Information exactly as it appears in
the DoD Regulations themselves, the court in Bismullah I
required the Government to collect (and preserve for judicial
review) only the relevant information in its possession that is
reasonably available. Slip Op. 13-15. In any event, Army
Regulation 190-8 is irrelevant because this court is bound not by
it but by the DTA, which charges the court to ensure that the
CSRT’s determination is consistent with the DoD Regulations
and that the conclusion of the Tribunal is supported by a
preponderance of the evidence.
Second, the Government contends that Bismullah I
imposed upon the Government a greater obligation to “turn
over” exculpatory evidence for a detainee than the Due Process
Clauses of the Constitution impose upon prosecutors in criminal
trials. See Brady v. Maryland, 373 U.S. 83 (1963). Whether the
Government is correct – a matter upon which we express no
view – is irrelevant for the same reason that Army Regulation
190-8 is irrelevant: as just noted, the DTA requires that the
record on review include all the Government Information.
Third, the Government argues – and this seems to be its
only real and practical concern – that if Bismullah I “is allowed
to stand, the Government ... will be required to undertake
searches of all relevant Department of Defense (‘DoD’)
components and all relevant federal agencies in an effort to
recreate a ‘record’ that is entirely different from the record
before the Tribunal that made the decision at issue in a DTA
case.” The burden of collecting all these materials, the
Government says, would be so great that it would “divert limited
resources and sidetrack the intelligence community from
performing other critical national security duties during a time
of war.” For example, the Government reports that its searches
7
of certain databases for relevant documents are yielding “tens of
thousands, and in many cases hundreds of thousands, of
documents” relating to a given detainee. According to Deputy
Secretary of Defense Gordon England, two offices within the
DoD have expended well over 2000 man-hours in a recent effort
to collect material relating to six detainees who have petitioned
for review of their status determination.
The Government, it seems, is overreading Bismullah I
and underreading the DoD Regulations. Those regulations
provide that “information in the possession of the U.S.
Government bearing on the issue of whether the detainee meets
the criteria to be designated as an enemy combatant” comes
within the definition of Government Information only if it is
“reasonably available.” E-1 § E(3); see Slip Op. 5. In its
petition for rehearing, the Government adverts repeatedly to this
limitation upon the scope of Government Information. Yet, the
Government reports that it “is now conducting ... entirely new
searches of all relevant DoD components and all relevant federal
agencies.” A search for information without regard to whether
it is “reasonably available” is clearly not required by Bismullah
I.
Indeed, the Government states elsewhere in its petition
for rehearing that it does “not believe that the information” it is
now seeking “is properly considered ‘reasonably available.’”3
Apparently, the Government is searching for all relevant
information without regard to whether it is reasonably available
because it did not retain all the Government Information that the
3
We express no view as to whether any of the information the
Government is seeking is not “reasonably available.”
8
Recorder collected.4 The Government has consequently
determined that it must now search for relevant information
without regard to whether the information is reasonably
available “because [it] can conceive of no other comprehensive
method to ensure that [it] identif[ies] information that the
Recorder could have examined.” The Government explains that
it did not retain all the Government Information because, “[a]t
the time, Recorders had no reason to believe that DoD would be
required to produce (or explain post hoc) what was not provided
to the Tribunal.” We note in the Government’s defense that
CSRTs made hundreds of status determinations, including those
under review in the present cases, before the DTA was enacted
in December 2005 and therefore without knowing what the
Congress would later specify concerning the scope and nature of
judicial review.
Be that as it may, if the Government cannot, within its
resource constraints, produce the Government Information
collected by the Recorder with respect to a particular detainee,
then this court will be unable to confirm that the CSRT’s
determination was reached in compliance with the DoD
Regulations and applicable law. See Slip Op. 13 n.*. The
Government does have an alternative: It can abandon its present
course of trying to reconstruct the Government Information by
surveying all relevant information in its possession without
regard to whether that information is reasonably available, and
instead convene a new CSRT. If the Government elects to
4
The Government tells us “there is no readily accessible set of
Government Information for completed CSRTs” and that the
Government Information is not “sitting in a file drawer.” Thus, it
seems that, having collected the Government Information and selected
the Government Evidence for the Tribunal to see, the Recorder then
did not retain that portion of the Government Information he did not
forward to the Tribunal.
9
convene a new CSRT, it will have to collect only the
Government Information specified by the DoD Regulations –
that is, the relevant information in its possession that is then
reasonably available.5
In summary, the record on review must include all the
Government Information, as defined by the DoD Regulations.
If the Government did not preserve that entire body of
information with respect to a particular petitioner, then it will
have either to reassemble the Government Information it did
collect or to convene a new CSRT, taking care this time to retain
all the Government Information.
II. Access by the Petitioner’s Counsel to Classified Government
Information.
The Government also objects to Bismullah I insofar as it
requires the Government to turn over Government Information
5
The Government apparently has convened a second or successive
CSRT for a number of detainees. See Mark Denbeaux et al., No-
Hearing Hearings, CSRT: The Modern Habeas Corpus? An Analysis
of the Proceedings of the Government’s Combatant Status Review
Tribunals at Guantánamo 37-39. In addition, pursuant to the DTA,
Department of Defense regulations provide that a new CSRT may be
convened in the event that material “new evidence” comes to light.
DTA § 1005(a)(3); Department of Defense, Office for the
Administrative Review of the Detention of Enemy Combatants
(OARDEC) at U.S. Naval Base Guantánamo Bay, Cuba, Instruction
5421.1(4)-(5) (May 7, 2007). According to its Director, Frank
Sweigart, OARDEC has convened at least one new CSRT pursuant to
Instruction 5421.1. See Al Ginco v. Gates, No. 07-1090 (D.C. Cir.),
Decl. of Frank Sweigart ¶ 4 (Sept. 13, 2007). We express no view as
to the availability of any other type of relief in a case in which the
Government did not preserve the Government Information with
respect to a particular detainee.
10
to the petitioners’ counsel. The Government sees two problems
with this: The disclosure of classified Government Information
“could seriously disrupt the Nation’s intelligence gathering
programs”; and the burden of reviewing all the Government
Information to determine whether it must be turned over is so
great that it will “divert limited resources and sidetrack the
intelligence community from performing other critical national
security duties during a time of war.”
In Bismullah I, we dealt with the Government’s concern
about disclosure by providing, just as the Government urged,
that it may withhold from the petitioners’ counsel any
Government Information that is either “highly sensitive
information, or ... pertain[s] to a highly sensitive source or to
anyone other than the detainee.” Slip Op. 16-17.6 The
Government’s need to review the Government Information in
order to determine whether it fits within any of these three
exceptions gives rise to the Government’s present concern about
the burden of complying with Bismullah I.
Although the Government represented in its brief and at
oral argument in Bismullah I that it would need to withhold
“only a small amount of information” from a detainee’s counsel,
the Government now indicates that a substantial amount of the
Government Information comes within one or another of the
three exceptions, thereby “exponentially increas[ing] the
magnitude of” its review of Government Information to
determine what to withhold. The Government’s petition is
unclear as to why it now anticipates so much more Government
Information will be non-disclosable. Perhaps it is because, as
6
To the extent the Government now suggests that certain information
may be too sensitive to disclose even to the court, we leave that issue
for case-by-case determination upon ex parte motion filed by the
Government.
11
discussed above, the Government has been searching for all
relevant information without regard to whether it is reasonably
available. According to the DoD Regulations, “[c]lassified
information ... which the originating agency declines to
authorize for use in the CSRT process is not reasonably
available.” E-1 § D(2). Consequently, if the Government
convenes a new CSRT and the Recorder collects as Government
Information only the information in its possession that is both
relevant and “reasonably available,” then the amount of
information to be redacted may indeed be as small as the
Government anticipated earlier. We note, however, that,
according to the DoD Regulations, when an originating agency
withholds relevant information, it must “provide either an
acceptable substitute for the information requested or a
certification to the Tribunal that none of the withheld
information would support a determination that the detainee is
not an enemy combatant.” E-1 § E(3)(a).
In any event, the proportion of the Government
Information that may be withheld from the petitioners’ counsel
should not affect to an appreciable degree the burden upon the
Government of producing the Government Information to the
petitioners’ counsel. Regardless of how much ultimately may
be withheld, the Government will have to conduct the same
review of the Government Information in order to make that
determination; so much was inherent in the Government’s
proposed standard for withholding information, which we
adopted. Thus, the real import of the Government’s argument
seems to be that having to review the Government Information
to determine whether it must be disclosed creates a substantial
burden for the Government and therefore, because the
Government obviously cannot indiscriminately turn over all of
the Government Information to the petitioners’ counsel, the only
solution is to turn over none of it. As we explained in Bismullah
I, however, entirely ex parte review of a CSRT determination is
12
inconsistent with effective judicial review as required by the
DTA and should be avoided to the extent consistent with
safeguarding classified information. Slip Op. 13, 16-17.7
7
Nonetheless, if it is true that most of the Government Information
will come within an exception to the requirement that the petitioners’
counsel be given access to the Government Information, then the
practical effect of the exceptions may yet be that our review of a
CSRT determination is in large part ex parte.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 2007 Decided July 20, 2007
No. 06-1197
HAJI BISMULLAH A/K/A HAJI BISMILLAH, AND A/K/A HAJI
BESMELLA,
HAJI MOHAMMAD WALI, NEXT FRIEND OF HAJI BISMULLAH,
PETITIONERS
v.
ROBERT M. GATES, SECRETARY OF DEFENSE,
RESPONDENT
No. 06-1397
HUZAIFA PARHAT, ET AL.,
PETITIONERS
v.
ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
RESPONDENTS
On Motions
Jeffrey I. Lang argued the cause for petitioners Haji
Bismullah, et al. Sabin Willett argued the cause for petitioners
2
Huzaifa Parhat, et al. With them on the briefs were Rheba
Rutkowski, Neil G. McGaraghan, Jason S. Pinney, Susan B.
Manning, John B. Missing, Jennifer R. Cowan, and Jill van
Berg.
Douglas N. Letter, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Peter D. Keisler, Assistant Attorney General, Gregory G. Katsas,
Principal Deputy Associate Attorney General, Jonathan F. Cohn,
Deputy Assistant Attorney General, and Robert M. Loeb and
August E. Flentje, Attorneys.
Before: GINSBURG, Chief Judge, and HENDERSON and
ROGERS, Circuit Judges.
Opinion for the court filed by Chief Judge GINSBURG.
Concurring opinion filed by Circuit Judge ROGERS.
GINSBURG, Chief Judge: Petitioners are eight men detained
at the Naval Station at Guantánamo Bay, Cuba. Each petitioner
seeks review of the determination by a Combatant Status Review
Tribunal (CSRT or Tribunal) that he is an “enemy combatant.”
In this opinion we address the various procedural motions the
parties have filed to govern our review of the merits of the
detainees’ petitions. The petitioners as a group and the
Government each propose the court enter a protective order to
govern such matters as access to and handling of classified
information; the petitioners move to compel discovery and for
the appointment of a special master; and the Government asks
the court to treat the seven petitioners who filed the joint petition
in Parhat v. Gates (No. 06-1397) as though each had filed a
separate petition to review his status determination.
In order to review a Tribunal’s determination that, based
3
upon a preponderance of the evidence, a detainee is an enemy
combatant, the court must have access to all the information
available to the Tribunal. We therefore hold that, contrary to the
position of the Government, the record on review consists of all
the information a Tribunal is authorized to obtain and consider,
pursuant to the procedures specified by the Secretary of Defense,
hereinafter referred to as Government Information and defined
by the Secretary of the Navy as “such reasonably available
information in the possession of the U.S. Government bearing on
the issue of whether the detainee meets the criteria to be
designated as an enemy combatant,” which includes any
information presented to the Tribunal by the detainee or his
Personal Representative.
In addition, we must implement such measures to govern
these proceedings as are necessary to enable us to engage in
meaningful review of the record as defined above. Therefore, we
will enter a protective order adopting a presumption, as proposed
by the petitioners, that counsel for a detainee has a “need to
know” the classified information relating to his client’s case,
except that the Government may withhold from counsel, but not
from the court, certain highly sensitive information. The
protective order also will provide that the Government may
inspect correspondence from counsel to a detainee, including
“legal mail,” and redact anything that does not pertain to the
events leading up to the detainee’s capture and culminating in the
conduct of his CSRT, including such events in between as bear
upon the decision of the Tribunal or our review thereof. Finally,
the protective order will provide that a lawyer offering his or her
services may, as the petitioners propose, have up to two visits
with a detainee in order to obtain the detainee’s authorization to
seek review of the CSRT’s determination of his status.
Before entering the protective order, the court will give the
parties an opportunity to suggest changes.
4
I. Background
Each petitioner is a foreign national captured abroad and
held at Guantánamo, seeking review of a decision of a CSRT
determining that he is an “enemy combatant” and therefore
subject to detention for the duration of hostilities. Haji
Bismullah was captured in Afghanistan in 2003. Huzaifa Parhat
and the six other detainees joining his petition are ethnic Uighurs
who allege they were captured in Pakistan in approximately
December 2001.
A. The Regulations
In a July 2004 Memorandum for the Secretary of the Navy,
the Secretary of Defense established skeletal procedures for the
conduct of CSRT proceedings with respect to foreign nationals
held at Guantánamo to “review the detainee’s status as an enemy
combatant.” The Secretary of the Navy, who was “appointed to
operate and oversee [the CSRT] process,” promptly issued a
memorandum specifying detailed procedures (Navy
Memorandum), which are still in effect.*
Pursuant to those procedures, a CSRT reviews the
determination, made after “multiple levels of review by military
officers and officials of the Department of Defense,” (E-1 § B)
that a detainee is an “enemy combatant,” defined as “an
individual who was part of or supporting Taliban or Al Qaida
forces, or associated forces that are engaged in hostilities against
the United States or its coalition partners.” (E-1 § B) A Tribunal
is composed of “three neutral commissioned officers” who were
*
The Secretary of the Navy attached to his memorandum
three “enclosures,” to which we refer below in our citations to the
CSRT procedures as “E-1,” “E-2,” and “E-3.”
5
not involved in the “apprehension, detention, interrogation, or
previous determination of status of the detainee[].” (E-1 § C(1))
The Tribunal is to “determine whether the preponderance of the
evidence supports the conclusion that each detainee meets the
criteria to be designated as an enemy combatant.” (E-1 § B)
There is a rebuttable presumption that the Government Evidence,
defined as “such evidence in the Government Information as
may be sufficient to support the detainee’s classification as an
enemy combatant” (E-1 § H(4)) is “genuine and accurate” (E-1
§ G(11)).
The Tribunal is authorized to request the production of
“reasonably available information in the possession of the U.S.
Government bearing on the issue of whether the detainee meets
the criteria to be designated as an enemy combatant,” (E-1
§ E(3)) and the Recorder, a military officer, is charged with
obtaining from government agencies and reviewing all such
Government Information (E-2 § C(1)). The Recorder must
present, orally or in documentary form (E-2 § C(6)), both the
Government Evidence and, if any there be in the Government
Information, all “evidence to suggest that the detainee should not
be designated as an enemy combatant.” (E-1 § H(4), E-2 § B(1))
In advance of the Tribunal hearing, the Recorder must prepare an
unclassified summary of the relevant Government Information
and provide the summary to the detainee’s Personal
Representative, also a military officer. (E-2 § C(2), (4))
Each detainee’s Personal Representative reviews the
Government Evidence the Recorder plans to present to the
Tribunal (E-3 § C(3)), has access to the Government Information
(E-3 § C(2)), and meets with the detainee to explain the CSRT
process. The Personal Representative may not, however, share
classified information with the detainee. (E-3 § C(4)) The
Personal Representative “shall present information to the
Tribunal if the detainee so requests” and “may, outside the
6
presence of the detainee, comment upon classified information
submitted by the Recorder.” (E-3 § C(5)) The detainee may
testify or introduce relevant documentary evidence at the
hearing, but may not be compelled to answer questions. (E-1
§ F(6)-(7)) He also may present the testimony of any witness
who is “reasonably available and whose testimony is considered
by the Tribunal to be relevant.” (E-1 § F(6))
After the hearing, the Recorder compiles a “Record of
Proceedings,” consisting of (1) a statement of the time and place
of the hearing and the names of those present; (2) the Tribunal
Decision Report cover sheet,* which is accompanied by (a) the
classified and unclassified reports made by the Recorder “upon
which the Tribunal decision was based” and (b) copies of all
documentary evidence presented to the CSRT; (3) a summary
prepared by the Recorder of each witness’s testimony; and (4)
the summary report written by any dissenting member of the
Tribunal. (E-2 § C(8), E-1 § G(12))
Each Tribunal has a “Legal Advisor” with whom the
members may consult regarding legal, evidentiary, procedural,
and like matters. (E-1 § C(4)) The Legal Advisor reviews for
legal sufficiency both the CSRT’s rulings on whether witnesses
and evidence are reasonably available and its ultimate
determination of the detainee’s status. (E-1 § I(7)) The Legal
Advisor forwards the Record of Proceedings to the “Director,
CSRT,” (E-1 § I(5)) who reviews the decision as well. (E-1
§ I(8), E-2 § C(10)) If approved by the Director, CSRT, then the
decision becomes final. (E-1 § I(8))
*
A Tribunal member designated by the Tribunal President
(E-1 § H(9)) must “document the Tribunal’s decision on the [CSRT]
Report cover sheet ... which [serves] as the basis for the Recorder’s
preparation of the Tribunal record.”
7
B. The Statutes
In December 2005 the President signed into law the
Detainee Treatment Act (DTA), Pub. L. No. 109-148,
§ 1005(e)(2)(A), 119 Stat. 2742-43, which vests in this court
exclusive jurisdiction “to determine the validity of any final
decision of a [CSRT] that an alien is properly detained as an
enemy combatant.” Section 1005(e)(2)(C) of the Act provides:
The jurisdiction of the United States Court of Appeals for
the District of Columbia Circuit on any claims with respect
to an alien under this paragraph shall be limited to the
consideration of —
(i) whether the status determination of the Combatant
Status Review Tribunal with regard to such alien was
consistent with the standards and procedures specified
by the Secretary of Defense for Combatant Status
Review Tribunals (including the requirement that the
conclusion of the Tribunal be supported by a
preponderance of the evidence and allowing a
rebuttable presumption in favor of the Government’s
evidence); and
(ii) to the extent the Constitution and laws of the United
States are applicable, whether the use of such standards
and procedures to make the determination is consistent
with the Constitution and laws of the United States.
Soon after arriving at Guantánamo, many a detainee, either
personally or through a “next friend” acting on his behalf, sought
release by filing a petition for a writ of habeas corpus in the
district court. Beginning in January 2006, after the DTA was
enacted, some detainees, including the petitioners, filed in this
court petitions seeking both review of a status determination by
8
a CSRT and a writ of habeas corpus. See, e.g., Paracha v. Gates,
No. 06-1038. In October 2006 the Congress passed and the
President signed into law the Military Commissions Act (MCA),
Pub. L. No. 109-366, § 7, 120 Stat. 2635-36, which stripped the
district court of jurisdiction over habeas petitions filed by or on
behalf of “an alien detained by the United States who has been
determined by the United States to have been properly detained
as an enemy combatant or is awaiting such determination.”
MCA § 7(a), 28 U.S.C. § 2241(e)(1). Meanwhile, we had stayed
the petitions filed in the court of appeals, including those of
Bismullah and the Parhat Petitioners, pending this court’s
decision in Boumediene v. Bush, 476 F.3d 981, 990-91, cert.
denied, 127 S. Ct. 1478, 167 L. Ed. 2d 578, cert. granted, 75
U.S.L.W. 3707 (U.S. June 29, 2007) (No. 06-1195). In that case
we held that, because the common law writ of “habeas corpus
would not have been available in 1789 to aliens without presence
or property within the United States,” the Congress did not
violate the Suspension Clause of the Constitution, U.S. Const.
art. I, § 9, cl. 2, when it stripped the federal district court of
jurisdiction to hear any habeas petition filed by “an alien
detained by the United States.” We now take up the motions
pending in the petitioners’ DTA cases.
C. The Motions
In order to resolve preliminary issues before this court
reviews the merits of their claims, all the petitioners filed
motions to (1) enter the protective order previously entered by
the district court in all habeas cases brought by Guantánamo
detainees (Status Quo Order); (2) compel discovery, allowing the
petitioners to gather all evidence available to the Government at
the time the CSRT was held and to present to the court such
evidence as was not presented to the CSRT; and (3) appoint a
special master to hold hearings and make factual findings, as
necessary to address disputes arising from the proposed
9
protective and discovery orders. In his motion to compel
discovery, Bismullah also seeks counsel access to (1) the Record
of Proceedings (classified and unclassified) before his CSRT;
(2) the Government Information regarding Bismullah; (3) any
statements or letters in support of Bismullah; (4) other
documents relating to Bismullah’s CSRT, including “records,
notes, memoranda and correspondence of the Tribunal members,
Recorder, Personal Representative, or other person who
participated in Bismullah’s CSRT”; and (5) other “reasonably
available documents or information in the possession of the U.S.
government” bearing upon whether Bismullah meets the criteria
to be designated an enemy combatant.
In their motion to compel discovery, the Parhat Petitioners
seek counsel access to (1) the CSRT records (classified and
unclassified) for all seven Parhat Petitioners and for 13 other
Uighur men allegedly taken into custody at the same time and
place; (2) records created in Kandahar, Afghanistan or
Guantánamo regarding any Parhat Petitioner’s status as an
enemy combatant; (3) records of the State Department’s effort to
persuade foreign governments to grant asylum to any of the 20
Uighurs, including the Parhat Petitioners; (4) the Government’s
files regarding interrogation of each Parhat Petitioner; (5)
records concerning the conduct of the Recorder in all CSRT
proceedings concerning any of the Parhat Petitioners; (6) records
concerning any visit to Guantánamo of any official of the
People’s Republic of China in order to interrogate any Uighur
detainee, upon which interrogation the petitioners are concerned
the Tribunal may have relied in designating them enemy
combatants; and (7) records concerning any Parhat Petitioner’s
affiliation with the East Turkistan Islamic Movement, which the
Government designated a “terrorist organization” pursuant to 8
U.S.C. § 1182(a)(3)(B)(vi)(II) more than two years after the
Parhat Petitioners allege they were captured, see 69 Fed. Reg.
23,555 (2004), and with which the Parhat Petitioners allege, in
10
apparent anticipation of the Government Evidence, they have no
affiliation.
For its part, the Government moves the court to enter a
substantially revised version of the protective order entered by
the district court (Government’s Proposed Order), before the
entry of which it apparently refuses to turn over to counsel for
the petitioners any classified information and “any information
designated by the Government as protected information.” The
Government also proposes the court treat the petition filed by the
seven Parhat Petitioners as seven separate petitions.
II. Analysis
The parties fundamentally disagree about what constitutes
the record to which this court must look as it reviews a CSRT’s
determination that a petitioner is an enemy combatant. The
parties agree that the court should enter a protective order before
the Government gives counsel for the petitioners (all of whom
have the requisite security clearance) access to classified and
protected information, and that the protective order must provide
a method for counsel to communicate to a detainee nonclassified
but confidential information, in writing and in person. The
parties disagree, however, over several particulars. The
petitioners ask the court to enter the protective order entered by
the district court in the aforementioned habeas cases, and the
Government proposes a substantially different order.
A. The Record
The petitioners argue the court must look beyond the Record
of Proceedings and consider all evidence reasonably available to
the Government, which may include evidence neither the
Recorder nor the detainee’s Personal Representative nor the
detainee put before the CSRT. In addition, they point out that
11
many of the procedures specified by the Department of Defense
for the conduct of a CSRT address steps to be taken before the
hearing, and argue that therefore the court must have available
to it information sufficient to enable review of a detainee’s claim
that the Government did not comply with a pre-hearing
procedure. For example, Bismullah contends, on information
and belief, that the Recorder for his proceeding failed to gather
and examine potentially exculpatory evidence and to present that
evidence to the Tribunal. Bismullah also alleges the Tribunal
acted arbitrarily and capriciously by, for example, ruling that
Bismullah’s brother was not “reasonably available” to testify or
submit an affidavit. The Parhat Petitioners similarly allege the
Recorder failed to present the Tribunal with statements made by
military interrogators advising them as early as 2003 that they
soon would be released. The Parhat Petitioners also seek
information regarding other Uighur detainees in order to support
their claims that the Government acted arbitrarily by finding the
Parhat Petitioners to be enemy combatants while finding
similarly situated detainees were not enemy combatants. Finally,
the petitioners contend that, even if the court does not review the
Government’s compliance with pre-hearing procedures, they are
entitled to discovery directed at determining whether exculpatory
material was withheld from the Tribunal.
The petitioners propose not only to compel discovery but
also to supplement the record with such evidence as they
discover relevant to their claims. As counsel for the petitioners
said at oral argument, their request is “not strictly speaking for
discovery [but] for the court to have the complete record before
it.” Here they rely upon NRDC v. Train, 519 F.2d 287, 291-92
(D.C. Cir. 1975), in which we held that after the plaintiffs made
a “substantial showing” that the EPA had not filed with the court
the entire administrative record of the matter under review, they
were “entitled to an opportunity to determine, by limited
discovery, whether any other documents which [were] properly
12
part of the administrative record had been withheld.” Thus, the
petitioners contend the court appropriately considers
supplemental extra-record information when the “procedural
validity of the [agency’s] decision” is “under scrutiny,” Esch v.
Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), because, for
example, the agency excluded documents that might have been
adverse to its decision, see Kent County, Del. Levy Court v. EPA,
963 F.2d 391, 395-96 (D.C. Cir. 1992).
The Government’s position is that the record before the
court is properly limited to the Record of Proceedings, as
compiled by the Recorder. According to the Government, the
plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 538 (2004),
“rejected free-wheeling discovery” for even a citizen detained as
an alleged enemy combatant as long as there was a formal
military proceeding “akin” to a CSRT in which the detainee
could present his version of the facts. The Government believes
that by directing this court to “determine the validity of any final
decision of a Combatant Status Review Tribunal,” DTA
§ 1005(e)(2)(A), the Congress intended to “evoke[] this Court’s
familiar function of reviewing a final administrative decision
based upon the record before the agency.” In support of that
position and the lack of any need for discovery, the Government
contends the Record of Proceedings is sufficient for meaningful
review by the court, because a ruling on the reasonable
availability of a witness or of evidence must be made on the
record; the Personal Representative’s communication to the
detainee is largely scripted, leaving no need to produce “[his]
notes, memoranda and correspondence”; and the actions of the
Recorder, whose task is routine and subject to a strong
“presumption of regularity,” is subject to challenge by the
detainee, who may testify on his own behalf, and by the
detainee’s Personal Representative, who may review the
Government Information.
13
We approach questions concerning the content of the record
we are to review mindful that the DTA directs this court to
“determine the validity” of a Tribunal’s “status determination”
with particular reference to whether it was made “consistent with
the standards and procedures specified by the Secretary of
Defense, ... including the requirement that the conclusion of the
Tribunal be supported by a preponderance of the evidence.”
DTA § 1005(e)(2). As the petitioners point out, many of the
procedures specified by the Secretary relate to steps the Recorder
and others must take before the Tribunal holds a hearing. In
order to review compliance with those procedures, the court must
be able to view the Government Information with the aid of
counsel for both parties; a detainee’s counsel who has seen only
the subset of the Government Information presented to the
Tribunal is in no position to aid the court. There is simply no
other way for the counsel to present an argument that the
Recorder withheld exculpatory evidence from the Tribunal in
violation of the specified procedures. Even if the Recorder’s
actions are entitled to a presumption of regularity, as the
Government maintains — but which is not at all clear because a
CSRT does not have the transparent features of the ordinary
administrative process and the Recorder is not the final agency
decisionmaker, see Martino v. U.S. Dep’t of Agric., 801 F.2d
1410, 1412-13 (D.C. Cir. 1986) — that presumption is not
irrebuttable,* see, e.g., NRDC v. SEC, 606 F.2d 1031, 1049 n.23
*
Insofar as the task of gathering Government Information
was performed by someone other than the Recorder, Decl. of Rear
Admiral (Retired) James M. McGarrah ¶¶ 4-6 (May 31, 2007), as our
concurring colleague points out may have happened, or the Recorder
has failed altogether to gather certain Government Information, as
Bismullah alleges, a panel reviewing the merits of a CSRT status
determination will be in a position to resolve whether the procedure
followed was “consistent with the standards and procedures specified
by the Secretary of Defense for [a CSRT].” DTA § 1005(e)(2)(C)(i).
14
(D.C. Cir. 1979) (listing methods of rebutting presumption of
regularity); but it would be irrebuttable, in effect, if neither
petitioners’ counsel nor the court could ever look behind the
presumption to the actual facts. In addition, the court cannot, as
the DTA charges us, consider whether a preponderance of the
evidence supports the Tribunal’s status determination without
seeing all the evidence, any more than one can tell whether a
fraction is more or less than one half by looking only at the
numerator and not at the denominator.
The petitioners argue that once counsel have seen the
Government Information relative to a particular detainee, they
may need discovery in order to ensure “the Government has
actually collected all [documents it is required to collect].” They
believe, that is, they may be able to make a particularized
showing of need for specific documents in addition to those
obtained by the Recorder.
We deny the petitioners’ motions to compel discovery,
without prejudice to renewal, because they have not made a
showing sufficient to justify compelling discovery at this stage
of these proceedings. First, the petitioners do not need discovery
in order to challenge a CSRT’s ruling that a requested witness or
item of evidence was not “reasonably available”; as the
Government points out, that ruling must be made on the record,
which should be sufficient to determine whether the Tribunal
acted in accordance with the specified procedures. Nor does a
detainee petitioner need information regarding the conduct of
another detainee’s CSRT proceeding. Such information is not
relevant to our review, and therefore not necessary for a
counsel’s representation of his detainee client; the Act authorizes
this court to “determine the validity of any final decision of a
[CSRT],” DTA § 1005(e)(2)(A), and our jurisdiction under the
Act is expressly “limited to the consideration of” whether a
detainee’s status determination was “consistent with the
15
standards and procedures specified by the Secretary of Defense
for [a CSRT],” including the requirement that the Tribunal’s
status determination be supported by a preponderance of the
evidence, DTA § 1005(e)(2)(C)(i). The Act does not authorize
this court to determine whether a status determination is arbitrary
and capricious because, to use the petitioners’ example, it is
inconsistent with the status determination of another detainee
who was detained under similar circumstances. If a
preponderance of the evidence in the record — broadly
understood to include the Government Information and not just
the Government Evidence, plus any evidence submitted by the
detainee or his Personal Representative — supports the
Tribunal’s finding, then the Tribunal’s status determination must
be upheld, provided, of course, the determination was otherwise
made in accordance with the “standards and procedures specified
by the Secretary of Defense.” DTA § 1005(e)(2)(C)(i).
B. The Protective Order
Pursuant to the All Writs Act, 28 U.S.C. § 1651, which
authorizes the court to issue “all writs necessary or appropriate
in aid of [its] jurisdiction[],” we shall enter a protective order
resolving the points in contention between the parties in such a
way as to ensure the parties do not frustrate the court’s ability to
review a CSRT determination under the DTA. Cf. Telecom.
Research & Action Ctr. v. FCC, 750 F.2d 70, 75-76 (D.C. Cir.
1984) (holding pursuant to All Writs Act that court of appeals
“may resolve claims of unreasonable delay [by agency] in order
to protect its future jurisdiction” to review final agency action).
The order we enter, following an opportunity for the parties to
suggest changes, will be the order proposed by the Government,
as modified to conform to this opinion.
1. Counsel Access to Classified Information
16
The Government proposes to turn over to counsel for a
petitioner only information that was presented to the CSRT and
that “the Government has determined petitioners’ counsel has a
‘need to know,’” which in practice the Government anticipates
will mean turning over all the Government Information with
limited exceptions for information that pertains to anyone other
than the detainee, highly sensitive information, and information
pertaining to a highly sensitive source. Such highly sensitive
information, which the Government represents will rarely be
found and redacted, would be made available to the court ex
parte and in camera in the event the detainee seeks judicial
review of his status determination.
Petitioners’ counsel, each of whom has a security clearance,
contend they have a “need to know” all information about their
clients’ cases and related cases in order effectively to participate
in the adversarial process of review in court. Petitioners argue
that ex parte and in camera review of highly sensitive classified
information, as the Government proposes, is not an adequate
substitute for the judgment of counsel in identifying exculpatory
evidence and evidence that the Tribunal, the Recorder, or the
Personal Representative failed to comply with the procedures
specified for the conduct of a CSRT.
We think it clear that this court cannot discharge its
responsibility under the DTA, particularly its responsibility to
determine whether a preponderance of the evidence supports the
Tribunal’s determination, unless a petitioner’s counsel has access
to as much as is practical of the classified information regarding
his client. Counsel simply cannot argue, nor can the court
determine, whether a preponderance of the evidence supports the
Tribunal’s status determination without seeing all the evidence.
Therefore, we presume counsel for a detainee has a “need to
know” all Government Information concerning his client, not
just the portions of the Government Information presented to the
17
Tribunal.
That presumption is overcome to the extent the Government
seeks to withhold from counsel highly sensitive information, or
information pertaining to a highly sensitive source or to anyone
other than the detainee but presents such evidence to the court ex
parte and in camera. Therefore, as required in the Status Quo
Order, except for good cause shown, the Government shall
provide notice to counsel for the petitioners on the same day it
files such information ex parte. The court does not require the
Government to disclose such information to counsel because,
consistent with our rule of deference, “[i]t is within the role of
the executive to acquire and exercise the expertise of protecting
national security. It is not within the role of the courts to
second-guess executive judgments made in furtherance of that
branch’s proper role.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t
of Justice, 331 F.3d 918, 932 (D.C. Cir. 2003); Stillman v. CIA,
319 F.3d 546, 548 (D.C. Cir. 2003) (“Precisely because it is
often difficult for a court to review the classification of national
security information, ‘[w]e anticipate that in camera review of
affidavits, followed if necessary by further judicial inquiry, will
be the norm’”).
The Government also proposes unilaterally to determine
whether information is “protected,” meaning that petitioners’
counsel must keep it confidential and file under seal any
document containing such information. For example, the
Government would designate as “protected” information
“reasonably expected to increase the threat of injury or harm to
any person” and information already designated by the
Government to be “For Official Use Only” or “Law Enforcement
Sensitive.”
It is the court, not the Government, that has discretion to seal
a judicial record, cf. United States v. El-Sayegh, 131 F.3d 158,
18
160 (D.C. Cir. 1997) (“The decision whether to seal a judicial
record is ... committed to the discretion of the district court”),
which the public ordinarily has the right to inspect and copy,
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978).
Therefore, insofar as a party seeks to file with the court
nonclassified information the Government believes should be
“protected,” the Government must give the court a basis for
withholding it from public view.
2. Counsel Access to Detainees
Both the Status Quo Order and the Government’s Proposed
Order define “legal mail” as correspondence between a detainee
and his counsel with respect to subjects properly within the scope
of counsel’s representation. The parties do not disagree about
the rules governing mail sent by a detainee to his counsel, but
they do disagree about how mail from counsel to the detainee
client should be handled and about the scope of counsel’s
representation under the DTA.
Under both proposed Orders, a Privilege Team composed of
Department of Defense personnel would open an envelope
labeled as legal mail and addressed to a detainee. Under the
Status Quo Order, the Privilege Team would search legal mail
only for contraband, such as staples, paper clips, or other
nonpaper items; under the Government’s Proposed Order,
however, legal mail would be searched for prohibited content,
that is, anything outside the scope of the attorney’s
representation (of which more below). The Government’s
Proposed Order also would limit “legal mail” to:
documents and drafts of documents that are intended
for filing in this action and correspondence directly related
to those documents that —
19
i. are directly related to the litigation of this [DTA]
action [and]
ii. address only (a) those events leading up to this
detainee’s capture or (b) the conduct of the CSRT
proceeding relating to this detainee[,]
thereby implicitly but effectively limiting the scope of counsel’s
representation to the DTA action. The Government’s Proposed
Order also would expressly prohibit counsel from
communicating any information outside the scope of their
representation.
The petitioners object to this regime, first pointing out that
under the Status Quo Order, counsel have long been prohibited
from telling a detainee about:
ongoing or completed military intelligence, security, or
law enforcement operations, investigations, or arrests ...
or current political events in any country that are not
directly related to counsel’s representation of that
detainee.
Because their counsel have never breached this provision, the
petitioners claim the Government does not need to screen for
content any legal mail their counsel might send them. The
Government responds that while the Status Quo Order was in
effect, some counsel — though the Government does not suggest
counsel for the present petitioners — did use legal mail to inform
their clients about prohibited subjects, including military
operations in Iraq, terrorist attacks, Hezbollah’s attack upon
Israel, and the abuse at Abu Ghraib prison. The Government
asserts such information can “incite detainees to violence” or
cause “unrest,” such as a riot, hunger strike, or suicide — as,
indeed, it has done in the past.
20
At the least, the petitioners contend, counsel may
legitimately represent the detainees in efforts to find alternate
ways of ending their detention, including diplomatic means, and
therefore must be able to correspond with the detainees regarding
such alternatives; for example, they might want to correspond
concerning which countries are suitable for seeking asylum.
Using nonlegal mail is not a good alternative to using legal mail,
they say, because it is very slow and heavily redacted.
Moreover, the petitioners assert the attorney-client privilege,
which is intended to “encourage full and frank communication
between attorneys and their clients and thereby promote broader
public interests in the observance of law and the administration
of justice,” Swidler & Berlin v. United States, 524 U.S. 399, 403
(1998) (internal quotation marks omitted), applies to the
communications between counsel and the detainees.
Without expressing any view as to whether the attorney-
client privilege applies in this context, we must agree that “full
and frank communication” between a detainee and his counsel
will help counsel present the detainee’s case to the court, and
thereby aid the process of review with which we have been
charged by the Congress. Regrettably, however, we cannot
disagree with the Government that past breaches of the Status
Quo Order by some counsel for detainees justify the
Government’s proposal to narrow the topics about which all
counsel may correspond with a detainee and to hold all counsel
accountable by screening the legal mail they send to their
detainee clients.
Relatedly, we agree with the Government that the scope of
representation authorized by the DTA is limited, in the words of
the Act, to the pursuit of judicial review to “determine the
validity of any final decision of a [CSRT].” We read the
Government’s proposal, however, to limit the content of the
correspondence between petitioners and their counsel to “those
21
events leading up to this detainee’s capture” and the “conduct of
the CSRT proceeding relating to this detainee,” so as to include
events occurring between the detainee’s capture and his CSRT
hearing, such as the claim of at least three of the Parhat
Petitioners that they were told by military personnel as early as
2003 they would be released. This is necessary to enable counsel
to follow such leads as his client can provide regarding
exculpatory evidence that might be “reasonably available,” but
which the Recorder nonetheless failed to “obtain and examine.”
In the protective order to be issued, we will include the
Government’s proposal to allow a Privilege Team, composed of
personnel from the Department of Defense, to review legal mail
in order to ensure counsel’s correspondence does not include
content outside the scope of the previous paragraph. The
proposed procedure protects the confidentiality of
communications between counsel and the detainee by providing
that the Privilege Team may not disclose the content of a
communication to anyone unless counsel for a detainee seeks
court intervention to prevent the Privilege Team from screening
or redacting information sent to the detainee, in which event the
Privilege Team “may disclose the material at issue to a Special
Litigation Team [in the Department of Justice and] ... to the
Commander [at Guantánamo] or his representatives, including
attorneys for the Government.” The Special Litigation Team,
none of whose members may litigate the merits of a petition
brought by a detainee, represents the Privilege Team in any
dispute over screened or redacted information.
3. Attorney Access to Prospective Clients
The Government refuses to give counsel access to classified
information or to the legal mail system until counsel provides
“written evidence” that a detainee has personally authorized
counsel to represent him, even when a next friend purports to act
22
on behalf of a detainee. To that end, the Government proposes
to allow a lawyer one visit to Guantánamo to meet with a
potential detainee client for up to a total of eight hours in which
to obtain the detainee’s authorization to pursue a petition for
review of the detainee’s status determination. The Government
asserts the eight-hour limit is needed to prevent an “unwieldy
and unworkable situation,” apparently referring to the burden
upon the base administration of accommodating numerous visits
by lawyers to meet with potential clients.
The Government believes a detainee’s personal
authorization is “strongly [to be] preferred” because a putative
next friend probably does not satisfy the requirements for
standing. See Whitmore v. Arkansas, 495 U.S. 149, 163, 165
(1990) (holding in habeas action “next friend” who is “truly
dedicated to the best interests of the person on whose behalf he
seeks to litigate” has standing to act on behalf of prisoner who is
“unable to litigate his own cause due to mental incapacity, lack
of access to court, or other similar disability”). For one thing,
each detainee has been notified of his right to seek review under
the DTA. In addition, some detainees, according to the
Government, “revel in their status as enemies of the United
States” and should be allowed to choose not to participate in a
DTA action.
The petitioners’ counsel object to the eight-hour limit upon
their effort to persuade a detainee to pursue an action under the
DTA because, they say, the detainees are so distrustful that it can
take longer than that to persuade one to engage counsel. They
propose that a lawyer be allowed to visit a detainee as a potential
client twice, for an unspecified period of time, as has been
allowed until now under the Status Quo Order.
We conclude the requirement of the Status Quo Order that
a lawyer “provide evidence of ... authority to represent the
23
detainee ... after the conclusion of a second visit with the
detainee” is reasonable in that it allows the lawyer time to earn
the detainee’s trust and to discuss whether the detainee wants to
file a petition for judicial review. The Government has not
shown that two visits rather than one will harm its interests or
overburden its resources. On the contrary, the Government itself
has allowed that a detainee represented by counsel should not be
limited to three visits with retained counsel — as the
Government had first proposed in this case — because, based
upon an evaluation of the “resources and needs at Guantanamo”
by Rear Admiral Harry B. Harris, Commander of the Joint Task
Force-Guantánamo, the Government determined such a
limitation “is no longer warranted.” Though the Government
asserts its proposed one visit/eight-hour limitation upon meetings
between a lawyer and a potential client is still “warranted and
appropriate in light of the operations” at Guantánamo, it has
made no showing that a lawyer’s additional visit to see a
potential client imposes any greater burden upon it than does a
lawyer’s additional visit to a client he or she already represents.
Counsel for Bismullah, who represent Bismullah’s putative
next friend, maintain they need present only “evidence of ...
authority to represent the detainee,” rather than the
Government’s proposed consent form bearing the detainee’s
signature. They argue that requiring counsel to produce evidence
both that a detainee authorizes counsel to act on his behalf and
that he authorizes the filing of a petition submitted by a
detainee’s next friend would, in effect, “eliminate next friend
cases” by requiring “that each next friend action become a direct
action.”
In Whitmore, the Supreme Court concluded that the
Congress, in enacting 28 U.S.C. § 2242 (“Application for a writ
of habeas corpus shall be in writing signed and verified by the
person for whose relief it is intended or by someone acting in his
24
behalf”), had codified the historic practice of allowing a “next
friend” to file a petition for habeas corpus on behalf of a
prisoner. 495 U.S. at 162-63. Therefore, when the Congress
later authorized this court to review the status determination of
a CSRT upon the basis of a claim brought “by or on behalf of an
alien [detainee],” DTA § 1005(e)(2)(B), we understand it to have
permitted a next friend to petition for review of a CSRT
determination when the detainee is “unable to litigate his own
cause due to mental incapacity, lack of access to court, or other
similar disability.” Whitmore, 495 U.S. at 165. Hence, we reject
the Government’s proposal to require a detainee personally to
authorize a next friend to act on his behalf when a petitioner
asserting next friend standing can demonstrate the detainee is
under such a disability. After two visits between a lawyer and a
detainee, either the lawyer should be able to obtain the detainee’s
express authorization to represent him in a DTA action or the
would-be next friend should be able to obtain, through the
lawyer, evidence of the detainee’s disability and best interests
sufficient to perfect the next friend’s standing. See id. We reject
the Government’s proposal to require that the detainee sign a
form authorizing the filing of the petition submitted by a putative
next friend; the inquiry into whether a would-be next friend has
standing is necessarily a matter to be determined case by case.
4. Miscellaneous
We do not believe it necessary to appoint a special master to
hold hearings, order discovery, or make factual findings because
we have resolved the pending procedural disputes between the
parties. We therefore deny without prejudice the petitioners’
motion to appoint a special master.
The Government’s motion that the court consider separately
the claims jointly filed by the seven detainee petitioners in
Parhat v. Gates is granted. In order to evaluate the merits of
25
each Parhat Petitioner’s claims, we must review a separate record
of that petitioner’s status determination. Accordingly, each
Parhat Petitioner will be assigned a separate case number and
each case will be separately briefed and assigned to a merits
panel, absent further order of this court, see Handbook of
Practice and Internal Procedures, United States Court of
Appeals for the District of Columbia Circuit §§ V.A. (“[C]ases
involving ... the same, similar, or related issues, may be
consolidated”), III.H. (2007); Fed R. App. P. 3(b).
III. Conclusion
We conclude the record on review consists of the
Government Information, that is, all “reasonably available
information in the possession of the U.S. Government bearing on
the issue of whether the detainee meets the criteria to be
designated as an enemy combatant.” We grant in part and deny
in part, as explained in this opinion, both the petitioners’ and the
Government’s motions for a protective order; deny without
prejudice the petitioners’ motions for discovery and for the
appointment of a special master; and grant the Government’s
motion separately to consider the claims brought by each of the
petitioners in Parhat v. Gates, No. 06-1397.
The Clerk of the Court will enter in each of these cases a
Protective Order consistent with the foregoing opinion and
assign a separate docket number to each Parhat Petitioner.
So ordered.
ROGERS, Circuit Judge, concurring: Today the court sets
forth the procedures to be applied in actions under the Detainee
Treatment Act of 2005, Pub. L. No. 109-148, Div. A, tit. X, 119
Stat. 2739 (“DTA”) by detainees who wish to challenge the
classification decision of a Combatant Status Review Tribunal
(“CSRT”). I offer two observations that emphasize the unique
nature of DTA actions.
First, the court sets two limitations on the attorney-client
relationship. For reasons of national security, the court
authorizes the inspection of legal mail. Op. at 3, 20-21. That
mail, in turn, is restricted in substance to matters “directly
related” to this court’s limited scope of review under the DTA.
DTA § 1005(e)(2)(C); see 5 U.S.C. § 2241(e)(2); Op. at 21.
Ordinarily, legal mail is not screened for content by federal
prison officials, see 28 C.F.R. §§ 540.18, 540.19, and a prison
warden “may not ask the attorney to state the subject matter of
[an] . . . interview,” id. § 543.13(d). However, the posture of
these cases and the questionable applicability of constitutional
norms, see Boumediene v. Bush, 476 F.3d 981, 1011 (D.C. Cir.)
(Rogers, J., dissenting), cert. granted, 75 U.S.L.W. 3707 (U.S.
June 29, 2007) (No. 06-1195), add complexities. The attorney-
client privilege has a common-law basis, see, e.g., In re Lindsey,
158 F.3d 1263, 1266 (D.C. Cir. 1998) (per curiam), but the
Constitution has been used in various cases to enforce attorney
access. See, e.g., Shillinger v. Haworth, 70 F.3d 1132, 1142
(10th Cir. 1995); Bieregu v. Reno, 59 F.3d 1445, 1459 (3d Cir.
1995); Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir.
1985); United States v. Noriega, 752 F. Supp. 1032, 1033 (S.D.
Fla. 1990). Regardless, zealous advocacy is needed in order to
inform the court and to carry out Congress’s grant of review in
the DTA. The court has adopted a pragmatic balance of the
needs of the court and the needs of national security as
determined by the Executive, to whom the court defers. See Op.
at 17; see also id. at 20-21. However, nothing in the opinion
would foreclose restoration of the full attorney-client
2
relationship were the Executive to determine that national
security no longer requires such restrictions in DTA actions or
were the detainees to be in a position to invoke the jurisdiction
of this court beyond the limited scope of the DTA.
Second, the court has defined the scope of the record in
terms of the plain text of the DTA and the Department of
Defense’s CSRT procedures. See Op. at 12-14. Because the
court’s review is for “a preponderance of the evidence,” DTA §
1005(e)(2)(C)(i), the record before this court will consist of “all
the information a [CSRT] is authorized to obtain and consider,
pursuant to the procedures specified by the Secretary of
Defense,” Op. at 3. To the extent this court’s DTA powers are
intended to check the substance of CSRT determinations, the
CSRT record for review will be only a partial record. It is
incomplete for at least two reasons — and possibly a third.
1. Although a detainee has the power to request the
consideration of evidence he may have on-hand and testimony
of “reasonably available” witnesses, he must develop this
rebuttal without knowledge of the classified information that
forms the case against him. He also must do so without the
benefit of counsel. Nonetheless, the detainee bears the burden
of proving that he is not an “enemy combatant,” a term that has
proven to have an elastic nature. See Boumediene, 476 F.3d at
1011 n.14 (Rogers, J., dissenting); In re Guantanamo Detainee
Cases, 355 F. Supp. 2d 443, 468-72, 474-75 (D.D.C. 2005).
2. The “Government Information” consists only of “such
reasonably available information in the possession of the U.S.
Government bearing on the issue of whether the detainee meets
the criteria to be designated as an enemy combatant.” Op. at 3
(quoting Memorandum from Gordon England, Secretary of the
Navy, Regarding Implementation of CSRT Procedures for
Enemy Combatants at Guantanamo Bay Naval Base, Cuba, encl.
3
1, § E(3) (hereinafter CSRT Procedures)); cf. Protective Order
§ 2.I. Thus, the initial record is limited by unilateral decisions
of the Executive. If there are documents in the possession of the
U.S. Government that were not gathered by the Recorder and
considered by the CSRT, then the only recourse for a detainee
is to seek the documents from the Executive as part of the DTA
action and, upon obtaining them, to seek a new CSRT. Disputes
about what qualifies as “reasonably available,” already a key
point of contention, see, e.g., Bismullah Petition for Release and
Other Relief ¶¶ 165-68, 175; Pet’rs’ Joint Br. in Support of
Pending Motions at 23, cannot be decided today.
3. The gap between Congress’s aspirations for the DTA
and the Executive’s implementation of the CSRT procedures for
compiling the record, which has come to light during briefing in
this case, presents new questions that also cannot be resolved
today. The Executive initially asserted a curious entitlement to
a “strong presumption of regularity” much as is received by an
administrative agency subject to the requirements of the
Administrative Procedure Act. See Corrected Br. of Resp’ts
Addressing Pending Preliminary Motions at 66-68; Op. at 12-14.
Then, in a post-argument submission of June 1, 2007, offering
to “assist the Court in understanding the process of developing
the CSRT record,” the Executive acknowledged that it has not
utilized the procedure for compiling the CSRT record that the
Department of Defense specified in its publicly-announced
procedures for conducting CSRTs. See Mot. for Leave to File
Decl. Describing Process of Compiling CSRT Record (June 1,
2007); Decl. of Rear Admiral (Retired) James M. McGarrah
(May 31, 2007).1 In particular, “due to the other extensive
1
See also Pet’rs’ Joint Mot. for Leave to File Decl. of Lt. Col.
Ste[ph]en Abraham (June 22, 2007); Decl. of Stephen Abraham (June
15, 2007) (attesting to command influence and departures from
procedures in compiling CSRT records).
4
responsibilities of the Recorder,” McGarrah Decl. ¶ 4, since
September 1, 2004, the Department of Defense has construed its
own requirement that “the Recorder shall obtain and examine
the Government Information,” CSRT Procedures encl. 2, § C(1),
to permit the evidence to be sorted and assessed not by the
Recorder, who must be “a commissioned officer serving in the
grade of O-3 or above, preferably a judge advocate, appointed
by the Director, CSRT,” id. encl. 1, § C(2), but rather by a “Case
Writer,” who “received approximately two weeks of training,”
McGarrah Decl. ¶ 5.
Inasmuch as the DTA was designed to “legitimiz[e],
through congressional action, what the Administration has done
at Guantanamo Bay,” 151 Cong. Rec. S11073 (Oct. 5, 2005)
(statement of Sen. Graham), the Executive’s belated revelation
regarding the record used for CSRT proceedings is unsettling.
As relevant, it leaves undetermined whether the court will be in
a position to conduct the substantive evaluation, as the DTA
directs, of whether a challenged CSRT determination is
supported by a preponderance of the evidence, see DTA §
1005(e)(2)(C)(i). The Executive has previously argued to this
court that the CSRT process in the DTA was designed as an
adequate replacement for the writ of habeas corpus, see
Supplemental Br. of the Federal Parties Addressing the Detainee
Treatment Act of 2005, at 49-53, Boumediene, 476 F.3d 981
(No. 05-5062). Revelations that evidence is summarized by an
anonymous “research, collection, and coordination team,”
McGarrah Decl. ¶ 4, whose activities have left “some of the[]
electronic files . . . corrupted,” id. ¶ 16, reinforce concerns about
the adequacy of actions under the DTA as a substitute for the
writ of habeas corpus. See Boumediene, 476 F.3d at 1004-07
(Rogers, J., dissenting).