Opposition Brief — Gates v. Bismullah (No. 07-1054)

No. Wh

TN THE

Supreme Court of the Gnited States

ROBERT M. GATES, SECRETARY OF DEFENSE, et a/.,

Petitioners,

HAJI BISMULLAH, et al., and HUZAIFA PARHAT, e7 al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Feb 143.008

BRIEF IN OPPOSITION

John B. Missing Sabin Willett

Anupama Connor Counsel of Record

DEBEVOISE & PLIMPTON LLP = Rheba Rutkowski

555 13th Street, N.W.

Ste. 1100E

Washington, D.C. 20004

Jennifer R. Cowan

Philip Rohlik

Keith E. Blackman

Jill van Berg

Andrew Pak

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, N.Y. !0022

(212) 909-6000

Counsel for Bismullah et ai.

Neil McGaraghan

Jason Pinney

Sukti Dhital

Samuel R. Rowley

Laura K. Langley

BINGHAM MCCUTCHEN LLP

150 Federal Street

Boston, MA 02110

(617) 951-8000

Susan Baker Manning

BINGHAM MCCUTCHEN LLP

2020 K Street, N.W.

Washington, D.C. 20006

- (202) 373-6000

Counsel for Parhat et al.

i

QUESTIONS PRESENTED

1. Whether the Court should interrupt pending

proceedings to review, in advance of its implementa-

tion, a preliminary procedural] ruling concerning ac-

tions brought under the Detainee Treatment Act of

2005, Pub. L. No. 109-148, 119 Stat. 2739 (“DTA”) by

detainees incarcerated at the United States Naval Base

at Guantanamo Bay.

2. Whether, as the court below held, in an action

brought under the DTA, the record on review includes

the “Government Information,” as defined by the De-

partment of Defense, so as to permit judicial review of

whether a detainee’s Combatant Status Review Tribu-

nal (“CSRT”) was conducted in compliance with ap-

plicable regulations, including the regulation requiring

that all exculpatory evidence reasonably available to

the government regarding the detainee be presented at

his CSRT hearing.

il

PARTIES TO THE PROCEEDING

Respondents here are as follows: (i) Haji Bismullah

and his brother Haji Mohammed Wali, acting as next

friend, are petitioners below in Bismullah ». Gates, No.

06-1197 (D.C. Cir. June 9, 2006); and (ii) Huzaifa

Parhat, Abdusabour, Abdusemet, Jalal Jalaldin,

Khalid Ali, Sabir Osman, and Hammad Mehmet, along

with Jamal Kiyemba, acting as next friend of Abdu-

sabour and Khalid Ali, are petitioners below in Parhat

v. Gates, No. 06-1397 (D.C. Cir. Dec. 4, 2006), and in

Nos. 07-1508, 07-1509, 07-1510, 07-1511, 07-1512 and

07-1523.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....0... ce scesseeeceeeenee i

PARTIES TO THE PROCEEDING..................... il

TF Re CG EIN EA shes scisnnsonsissinesscovensenseasan ili

TABLE OF AUTHORITIES...........csscorssesssonssseare vi

PRELIMINARY STATEMENT. ............sccscsessseoes 1

IE AA RN IIEE sence Nitin Mikestecisvaromninsncosicsdneaees 3

Bi I ic satiktccticctn piarciatandctiacenteate

i: Mae MIND ii aidiessstssicnahepipilacidcssoiinasandioo 3

ic TEM III Bis cislesneendaakcactisbindd connanvdusnns 4

B. The CSRT Procedures And Judicial

Review Under The DTA...............:ccsseseeeees 6

1. The Legal Framework and Actual

SN seas tilntcsasenintadnictccesiipncininnionsivnps 6

Fe he a athso ise Sieeanmiadsncinitirdaniorenec 8

a. The Government Information .........9

b. The Government Evidence............ 10

ce. Exculpatory Evidence................... 11

Fe We Be icissticas ih ect nacenimddies 11

e. Witness Testimony.....................00 12

ii1

1V

f. The Hearing Record.............cscecsees 12

POOGRUUT OE Ee IO vii sse sn céncnssodcsossaconsestscs 13

1. The 2006 DTA Filings...........ceeeeeseeees 13

2. Biemullah L..........0secscsorssscrcerconsserssoerse 13

ie INU HI Sidi saniniven conisvansathaospacanainas 13

CS BE ssiedensntnesnennisancavetensinnsiese 14

REASONS FOR DENYING THE PETITION ..14

A.

B.

C.

The Petition Should Not Be Held............ 14

Certvorart Review Is Premature. .............. 15

The Petition Should Be Denied

Because The Decision Below Is Correct. .. 17

1. The Decision Below Correctly

FOMMRIINOG FIR EFT Fis scccstonnscecoscaceniaccsas 17

2. Principles of Administrative and

Criminal Law Do Not Require

Review of the Decision Below............. 20

a. Section 2112 Does Not Define

the Record on Review.............sssees 21

b. If Administrative Law Were

Applicable, the Record on Review

Would Include the Government

Dai tenistvecicntedsesgacesiencnes 22

ce. Analogies to Criminal Law and

Army Regulation 190-8 Are

RMI ax ides ince tuanicenciacsssbuncubace 24

Vv

D. The Government’s Claims Of National-

Security Risk Provide No Basis For The

Court’s Intervention In This Case.......... 25

1. Claims of Undue Burden Provide No

Basis to Rewrite a Statutory

Cf SSRIS SAME ny SEE aE 25

. The CSRT Procedures and Rulings

Below Amply Protect the -

Government’s Interests. ...................+. 26

5 Ee IE nai sccsene icnatasaiaaaccmieines 28

. Averments of the Declarations ........... 29

a. The Claimed Burden ..................... 29

b. “Reasonably Available” ................ 30

c. Source COMpromise ...........cesesseeese 31

d. Disclosure to Counsel ................00+ 31

e. Concerns Since Resolved ............... 32

f. Irrelevant Argument ..................... 32

E.: The Habeas Appeals Provide No Basis

For The Court’s Intervention Here......... 33

SUTIN Saticsinicabdadnadcnchccsehsasnentntdssnennenenes 37

vi

TABLE OF AUTHORITIES

FEDERAL CASES

Bar MK Ranches ». Yuetter, 994 F.2d 735

RE Ns TET acu haiieasiaccaatalptieinnanpaiitnsotncernenses 23

Brady v. Maryland, 373 U.S. 83 (1968)}.............0004 24

In re Briscoe, 448 F.3d 201 (3d Cir. 2006) ............. 15

Canter v. Am. Ins. Co., 28 U.S. 307 (1830)............. 16

Cobbledick v. United States, 309 U.S. 323 (1940)..... 16

Conn. Nat’l Bank ». Germain, 503 U.S. 249

a eintin 17

Delta Airlines v. August, 450 U.S. 346 (1981)......... 20

Dodd ». United States, 545 U.S. 353 (2005)............. 26

EchoStar Satellite L.L.C. v. FCC, 457 F.3d 31

CF Es Sp. SEE ee a 25

Ellsberg ». Mitchell, 709 F.2d 51 (D.C. Cir. 1983) .. 33

Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989).......23

Flanagan v. United States, 465 U.S. 259 (1984). ...... 16

In re Guantanamo Detainee Cases,

Nos. 02-CV-0299 (CKK), 2005 U.S. Dist.

LEXIS 5295 (D.D.C. Feb. 3, 2005) ................. 16

Halperin ». Kissinger, 606 F.2d 1192

ra EIN METI al iseichck.cuebanbrnuntibiechantnsnpinesnaseeicas 33

Hamdi v. Rumsfteld, 542 U.S. 507 (2004).......... 18, 24

Vil

Hartford Underwriters Ins. Co. v. Union Planters

Bank, N.A., 530: U.S. 1 (ZOOO) ......ccccccccncoccsscees 17

Kent v. United States, 383 U.S. 541 (1966) ............. 20

Kent County v. EPA, 963 F.2d 391

I: a a aniesbia 23

Kerr v. United States Dist. Court, 426 U.S. 394

Ci hanica hesaradiaenindisalipndaiabiacadenchataciaediaiiensinvinaeantians 27

Mathews v. Eldridge, 424 U.S. 319 (1976) .............. 24

Mazurek v. Armstrong, 520 U.S. 968 (1997) ........... 15

Mi stretta v. United States, 488 U.S. 361 (1989)..19, 20

Nat’l Council of Resistance of Iran ».

Dep’t of State, 373 F.3d 152 (D.C. Cir. 2004)... 33

NLBAB 2. Fruehauf Corp., 720 F.2d 1398

SIE a 5 IEE Uidascit tices dctiisha tehepinssvnnbiansiinaaiehinsa 23

Rasul v. Bush, 542 U.S. 466 (2004) ....... cece eee 16

* Soctété Nationale Industrielle Aérospatiale v.

United States Dist. Ct. for the S. Dist. of Iowa,

ee CEE RaliiAinciineetiaabaccsadataniiccns 15

South Coast Air Quality Mgmt. Dist. v. EPA,

472 FBG GBS C79.G. Git. BOG) onc ciscccciccccccccscsscee 25

United States v. Gonzales, 520 U.S. 1 (1997)........... 17

United States v. Klein, 80 U.S. (13 Wall.) 128

fy 3 SEES eR eae termed Se eee 20

United States ». Nixon, 418 U.S. 683 (1974)........... 27

Vili

United States ». United Foods, Inc., 533 U.S. 405

UII ins ancouchcdi saa vinesuiie-voneclanisetillouninadieaiatniedalbicalass 20

Va. Military Inst. 1. United sincté 508 U.S. 946

(SII) sk esissosessuildinicansiaandeniiaeseonpteeeinaiabainaabebiceisan 15

Vance v. Bradley, 440 U.S. 93 (1979), ...ccrcccccccsrrees 25

FEDERAL STATUTES & RULES

S UE Ca icnceosatsecssersciareartnthaiaaeanisines 22

STE As BS RAD sci nivenincicnsincdcscenmeapenionminloath 33

BFA 1h BG sinsbin ick, iid svcdvaccmmccliaabpidicanae 26

TB: Ba ooninsisiesessdeescineomintannpnpmaceatn 26

FF aca Se BEE is kovhsosngcbesacasaiaseataasaminibedastineaa 26

eB ise crs anccessaniicasiieaboinmailianrits 26

SI BOE cidcciiscicsinstt tiene 21

PE Tih SIL. itr cissniesvhnnssnaticiecibablastaitelababadg 15

TE Be iettiictisiircniieomianamnn 20, 22

BO iince sn sscsnsstsittiesceataansasaaanadals 21

BAS RM} i | oe Snr 14, 17, 21, 23

28 U.S.C.A. § 2112 (Cross References} ..........:c0seees 22

Detainee Treatment Act of 2005, Pub. L. No. 109-

148, 119 Stat. 2739:

DS UGG Pac stesso nsvisessstansocincnsananieeseidaaes 7,17

F TIRB CAE MOE) senageccsierccnssccccgcresscoencesssngeies 23

Military Commissions Act of 2006, Pub. L. No. 109-

SOB, TIS DERE, BOBS DG 2.0 ccccnccesecccccasceosccnssescesescs 25

KG. Cie RD OTE) cncescccnsrecccccsconenccascoonenanenenes 26

BY.G. Cir. Bake STIG) wccinsncssceviosnonapeosesencseninmecnen . 26

MISCELLANOUS

Associated Press, Life Sentence for Shoe Bomber/“ We

are not afraid,” Judge tells him, NEWSDAY, Jan.

Mark Denbeaux et al., No-Hearing Hearings: CSRT,

- Modern Habeas Corpus? (Nov. 17, 2006), avazi-

able at

http://law.shu.edu/news/final_ no_hearing_

hearings_report. ABR Ca AL ee ee 12

Department of State, Country Reports on Human

Rights Practices—2006, § 1(c) (Mar. 6, 2007),

available at

http://www-.state.gov/g/drl/ris/hrrpt/2006/

, op Fe cee oor See eee 4

Sarah Kershaw, Terrorisi in ’99 U.S. Case Is Sen-

tenced for 22 Years, N.Y. TIMES,

bg 4 EE See. Saree ee 31

Eric Lichtblau, Judge Rules 9/11 Defendant

is Competent to Plead Guilty, N.Y. TIMES,

PR Re TAR ah ee eee 31

Joseph Margulies, GUANTANAMO AND THE

ABUSE OF PRESIDENTIAL POWER 156

tee

x

National Public Radio, Morning Edition, “Chinese

Detainees at Guantanamo Get Hearing”

es tiie ciientichiiaen dnaetnabintinteinintcmaiicenoncecs 6

Petition for Original Writ of Habeas Corpus,

In re Alt, No. 06-1194 (U.S. Feb. 12, 2007). ...... 5

Sara Wood, Tribunals Held for High-Value

Detainees at Guantanamo, March 12, 2007,

available at

http://www.defenselink.mil/news/newsarticle.

ee iticchiicanintinstnnseesscitiieareptactbeiiedadimnis 30

1

PRELIMINARY STATEMENT

The DTA grants every Guantanamo detainee a de-

fined right to judicial review of the CSRT determina-

tion that he is an “enemy combatant.” This appeal

arises from two DTA cases filed in 2006. The inter-

_locutory decision below held that the record on review

in such cases includes the “Government Information”

(“reasonably available” information in the govern-

ment’s possession, including all exculpatory evidence,

concerning the detainee’s combatant status). Depart-

ment of Defense (“DoD”) regulations required a tribu-

nal officer to assemble and consider the Government

Information, and to cull and present to a hearing panel

any selected incriminating information and all exculpa-

tory information. The challenged preliminary ruling is

necessary to enable, inter alia, judicial review of

whether the detainee’s status determination was con-

sistent with these regulations.

Arguing that the court of appeals need consider

only what was actually presented to the CSRT hearing

panel, the government seeks to delay DTA cases from

proceeding, and convert the judicial review mandated

by the DTA into a rubber stamp of the panel’s deter-

mination. Each Respondent believes he can show that

compelling exculpatory evidence was in the govern-

ment’s possession but, in violation of DoD regulations,

was not provided to his CSRT hearing panel. If the

government’s view of the record on review were cor-

rect, no court would ever see that evidence.

The government’s petition (“Petition”) should be

denied. First, certtorarz review is premature, as Bis-

mullak v. Gates, 501 F.3d 178 (D.C. Cir. 2007) (“Bas-

2

mullah I’”’),) is an interlocutory decision concerning the

contours of the material to be assembled and no actual

record exists.

Second, the decision in Bismullah I is correct, and

was compelled by the plain terms of CSRT regulations

and an act of Congress. The government’s position is

countertextual and would render judicial review mean-

ingless.

Third, the generalized national-security arguments

raised belatedly by the government provide no basis

for the Court’s intervention now. Those concerns were

well understood and fully addressed by the court be-

low, which treated them consistently with the clear

language of the DTA. Should any actual issues arise,

the court will have ample opportunity to address them

as necessary in the context of a particular case.

Fourth, the decisions in Boumediene v. Bush, No.

06-1195, and Al Odah v. United States, No. 06-1196

(collectively, “Boumedzene”), will not impact the ques-

tions presented here. Respondents agree with the

Boumediene petitioners that the DTA is a manifestly

insufficient substitute for habeas regardless of the scope

of the record on review in a DTA case. The issue in

this case, however, is not the constitutionality of the

DTA but its interpretation. And since the Court’s de-

cision in Boumedtene will not result in a contraction of

! The government’s request for rehearing and suggestion for re-

hearing en banc of Bismullah I were denied. Petitioner’s Appendix

(“PA”) 55a-66a, Bismullah v. Gates, 503 F.3d 137 (D.C. Cir. 2007)

(“Bismullah II’); PA 67a-102a, Bismullah ». Gates, 2008 WL

269001 (D.C. Cir. Feb. 1, 2008) (“Bismullak III”).

3

the record on review, the government, which five

months ago urged this Court that DTA cases should be

“fleshed out,” should not now be permitted to delay

Respondents’ pursuit of the statutory review to which

they are entitled.

STATEMENT

A. Background

1. Haji Bismullah

When the Taliban seized power in Afghanistan in

1996, fifteen-year-old Haji Bismullah and his family

fled to a refugee camp in Pakistan. Six years later,

Bismullah and his brothers answered Hamid Karzai’s

call for patriots to return to Afghanistan and join with

coalition forces. After Karzai became president of Af-

ghanistan, Bismullah’s brother became an aide to a

provinciai governor, and Bismullah was appointed as a

district transportation minister. Respondents’ Appen-

dix, filed February 20, 2008 (“RA”) 221a-223a "4 6-13;

RA 269a-271a § 6-13.

In February 2003, Bismullah went to a U.S. mili-

tary base to vouch for a detained Afghan official who

later was released. Apparently persuaded by a false

accusation made by members of a rival clan, our mili-

tary arrested Bismullah during that visit. Immedi-

ately after his arrest, Afghan officials notified U.S.

military officials that Bismullah had been mistakenly

detained, was not associated with the Taliban or al

Qaeda, and supported Karzai and the coalition. Nev-

ertheless, Bismullah was transferred to Bagram Air

Base and then to Guantanamo. RA 223a-226a, $j 14-

26; RA 271la-276a, 4§ 14-31.

4

Between the time of Bismullah’s arrest and his

CSRT, numerous Afghan officials, including the Gov-

ernor of Helmand province (now a member of the Af-

ghan Senate), told U.S. military and diplomatic offi-

cials in Afghanistan, orally and in writing, that Bis-

mullah was an ally detained in error. None of that evi-

dence was presented to Bismullah’s CSRT panel, and

none is in the government’s version of the record on re-

view-in his DTA case. Bismullah requested that his

brother, who could provide compelling evidence that

Bismullah’s detention was a mistake, be called as a

witness at his CSRT hearing. Then a senior spokes-

man for a provincial governor and routinely quoted in

western media, Bismullah’s brother was deemed “not

reasonably available.” RA 226a-228a, 9{ 25-32; RA

236a-237a, 99 1-4; RA 275a-276a, 44] 27-31.

2. The Uighurs

The Parhat Respondents are Uighurs, a Muslim

minority group from western China long oppressed by

the communist regime. Each fled China to escape that

oppression,? eventually making his way to a Uighur vil-

lage—termed a “camp” by the government—in Af-

ghanistan. None contemplated or participated in con-

flict with U.S. or coalition forces, and none supported

forces hostile to the United States. None had even the

remotest connection with the attacks of September 11,

2001. When the coalition began a bombing campaign

2 The United States has condemned China’s human rights abuses

of the Uighurs. Department of State, Country Reports on Human

Rights Practices—2006, §1{c) (Mar. 6, 2007), available at

http://www.state.gov/g/drl/rls/hrrpt/2006/78771.htm.

+)

in the area, the Uighurs fled to Pakistan, where

bounty-hunters sold them to the U.S. military. They

were transferred to Guantanamo in approximately

May 2002. RA 13a-18a, 4] 35-46, 50-56.

In September, 2002, in a deal with China, the gov-

ernment designated the so-called “Eastern Turkestan

Islamic Movement” as a terrorist group. RA 24a.: Al-

though Congress never authorized the use of military

force against this group, and Respondents’ companions

at the “camp” were determined to be noncombatants,‘

the Parhat Respondents are now held on the theory

that they were affiliated with this group. RA 24a,

q 77, 42a, | 139.

3 Citing statements by senior U.S. officials, the Parkat DTA peti-

tion details how this political concession was made to induce Chi-

nese cooperation with Iraq invasion plans. RA 21la-24a, {§ 66-77.

4'The Parhat Respondents were companions of five Uighurs whom

CSRT panels determined nof to be enemy combatants. In all re-

spects the facts were the same. Vigorous efforts by the Pentagon

to change the non-combatant findings through second panels en-

sued. This Court is familiar with one such case, involving a sixth

companion initially determined to be a noncombatant. A second

CSRT overturned that determination, under intense pressure

from the Pentagon. See Petition for Original Writ of Habeas Cor-

pus, In re Ali, No. 06-1194 (U.S. Feb. 12, 2007). Noting that

“(the Uighurs] are all considered the same,” a Pentagon official

wrote, “|bly properly classifying them as EC, then there is an op-

portunity to ... further exploit them here in GTMO.... The

consensus is that all Uighurs will be transferred to a third country

as soon as the plan is worked out.” Id. at &.

5 A description of ETIM appears in the CSRT record of a Uighur

companion of these Respondents, which indicates that the ETIM

designation was not based on U.S. intelligence but rather on an

article posted on the Internet by a Chinese state news agency.

6

Yet the military had determined that they were not

enemy combatants before CSRTs existed. A colonel

wrote of Parhat, “it appears unlikely that Parhat will

be determined to be an individual subject to the Presi-

dent’s military order of 13 Nov. 2001.” RA 128a-129a.

Public information indicates the existence of other ex-

culpatory evidence. For example, in August 2005, U.S.

Ambassador-at-Large for War Crimes Issues Pierre-

Richard Prosper stated that the government had al-

ready attempted to place the Uighurs in “about 25

countries.” Exculpatory statements were made by

senior officials, including former Secretary of State

Colin Powell and Navy Secretary Gordon England.

The records underlying these admissions were “rea-

sonably available,” but none was presented to any

hearing panel, and none would be part of the govern-

ment’s posited record on review. RA 27a-29a, 4 89.

B. The CSRT Procedures And Judicial Review

Under The DTA

1. The Legal Framework and Actual Practice

In July 2004, Deputy Secretary of Defense Paul

Wolfowitz issued an “Order Establishing Combatant

The document strongly supports the Uighurs’ contention that

their enemy-combatant status was the result of a political deal

with China. RA 2la-24a, 9§ 66-77. Because it is not contained in

these Respondents’ CSRT Hearing Records, it would be excluded

from the record on review advocated by the government.

6 Nationa] Public Radio, Morning Edition, “Chinese Detainees at

Guantanamo Get Hearing” (Aug. 25, 2005) (interview with Pi-

erre-Richard Prosper, U.S. Ambassador-at-Large for War Crimes

Issues).

7

Status Review Tribunal” (“CSRT Order”). PA 113a.

The Secretary of the Navy followed with an implemen-

tation memorandum. PA 120a. Together, these docu-

ments comprise the “standards and procedures” that

govern the CSRT process (hereinafter, “Procedures’’).

The CSRTs were held in 2004 and 2005.

The DTA grants the D.C. Circuit jurisdiction “to

determine the validity of any final decision of a

{CSRT]| that an alien is properly detained as an enemy

combatant.” It directs the court to decide:

(i) whether the status determination of the

Combatant Status Review Tribunal ... was con-

sistent with the standards and procedures speci-

fied by the Secretary of Defense for Combatant

Status Review Tribunals (including the re-

quirement 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 Consti-

tution and laws of the United States.

PA 107a-108a, DTA §1005(e)(2)(C). Thus, at a

minimum, the DTA entitles each detainee to challenge

whether his status determination was (1) consistent

with the Procedures, and (2) based on a preponderance

of the evidence.

Below, the government claimed entitlement to the

“strongest sort of presumption of regularity” in carry-

ing out the Procedures. Respondent’s Motion to Stay,

8

Parhat v. Gates, No. 06-1397, at 4 (D.C. Cir. Jan. 10,

2007). After oral argument it filed a declaration show-

ing that its practice had in fact been irregular.? Addi-

tional evidence showed that irregularities were perva-

sive.®

2. The CSRTs

The CSRTs, which the Executive established on its

own authority and for its own benefit, see PA 118a, § j,

involved an expressly nonadversarial process, PA 124a,

E-1 §B, including pre-hearing, hearing, and post-

hearing steps. The hearing on which the government

focuses was only part of the CSRT.

7 Declaration of Rear Admiral (ret.) James M. McGarrah, PA

225a-239a. Admiral McGarrah directed the Office for Adminis-

trative Review of the Detention of Enemy Combatants

(“OARDEC”).

8 RA 283a-297a, Declaration of Stephen Abraham, Lieutenant

Colonel, United States Army Reserve, Al Odah v. United States,

No. 06-1196 (U.S. June 22, 2007}; RA 301a-310a, Declaration of

William J. Teesdale, Esq., Hamad ». Bush, No. 05-1009 (D.D.C.

Sept. 4, 2007) (quoting CSRT hearing officer); RA 314a-33la,

Declaration of Stephen Abraham, Hamad ». Gates, No. 07-1098

(D.C. Cir. Nov. 9, 2007). Both below and in the Petition, the

government summarized the Procedures’ provisions as though

they actually were observed. Lt. Col. Abraham and the other

knowledgeable declarants contradict these representations. Com-

pare, e.g., RA 183a, Oral Argument Transcript, Bismullah v. Gates,

Nos. 06-1197 and 06-1397, at 29 (May 15, 2007) (attributing se-

lection of evidence to the Recorder) with RA 291a, 45 (“T]he

Government Evidence was not compiled personally by the CSRT

Recorder.”’).

9

a. The Government Information

The Procedures required the Recorder-—effectively

the investigator, prosecutor and clerk of the CSRT—

first to “obtain and examine the Government Informa-

tion,” defined 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 desig-

nated as an enemy combatant, including informa-

tion generated in connection with the initial deter-

mination to hold the detainee as an enemy combat-

ant and in any subsequent reviews of that determi-

nation, as well as any records; determinations, or

reports generated in connection with such proceed-

ings.

PA 129a, 14la-145a, E-1 § E(3), E-2 §§ A(2), C(1).

Merely reviewing the Government Information was

not sufficient; the Recorder was required to collect it so

that the Personal Representative (a non-lawyer who

was to “assist” the detainee but not act as his advo-

cate) could review it. PA 132a, E-1 § F(8); see also PA

133a, E-1 § G(4) (panel hearing to be scheduled only

after Personal Representative “has reviewed the Gov-

ernment Information”). Agencies declining to produce

information to the Recorder were required either to

provide “an acceptable substitute” or certify that ex-

culpatory information was not withheld. PA 129a, E-1

§ E(3), E(3)(a).

The Recorder did none of this. The crucial task of

finding Government Information was delegated to con-

tractors with limited training or ability to identify reli-

able intelligence. PA 227a-228a, {/"| 4-5; RA 29la, {| 5;

10

RA 322a, § 36. The contractors were given direct ac-

cess only to portions of two DoD databases that ex-

cluded much classified information. PA 230a,

§9 7, 7(a); RA 292a, 49. In theory, they could request

additional information from outside agencies, but in

practice, whether an agency responded depended on

“whether anyone at the agency was inclined to do so.”

RA 319a, | 22. OARDEC rarely lodged a request soon

enough for a timely response, RA 319a, 320a, 4 23, 27,

and often received no response at all, RA 319a, 320a,

4 24, 27. Requests for certifications that no exculpa-

tory information was withheld routinely were ignored.

RA 293a, 44 12-14.

b. The Government Evidence

The Recorder was to select from the Government

Information incriminating evidence for the hearing

panel (“Government Evidence”). PA 1388a, E-1

§ H(4). “Evidence” is a euphemism. The Government

Evidence consisted primarily of “intelligence products

of a generalized nature—often outdated, often ‘ge-

neric,’ [and] rarely specifically relating to the individ-

ual subjects of the CSRTs or to the circumstances of

those individuals’ status.” RA 29la-292a, 4 8; see also

RA 324a-325a, 443. While the Procedures established

a presumption that this material was genuine and ac-

curate, PA 136a, E-1 § G11, “\ijnformation relating to

the credibility of a source was omitted, making sources

appear authoritative even when they were suspect,”

RA 326a, 4 50.9

® Accusations against groups appeared in “Government Evidence”

without disclosing that the source was a group’s political opponent

11

ec. Exculpatory Evidence

With a presumption in favor of incriminating “evi-

dence,” the necessity of compliance with regulations

regarding exculpatory evidence was manifest. The Pro-

cedures were clear. If the Government Information

included any exculpatory evidence, “the Recorder shall

also separately provide such evidence to the Tribunal.”

PA 138a, E-1 § H(4) (emphasis supplied). Because de-

tainees had no counsel, no right to know the incrimi-

nating “evidence,” nor any practical means to gather

evidence from overseas, PA 13la, E-1 § F(3)-(5), PA

133a, § G(2); RA 327a, 455, the Recorder’s diligent

performance of this duty was crucial. “[T\)he Re-

corder’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 out-

come.” PA 79a (Bismullah III}. Yet Admiral McGar-

rah admitted that OARDEC sometimes withheld ex-

culpatory information. PA 236a, 4§13a-b. Although

compliance with the Procedures is an issue that the

court below was expressly tasked to review under the

DTA, this violation of the Procedures could never be

established under the government’s version of the re-

cord on review.

d. The Hearing

After the information was collected and reviewed, a

hearing was convened before a panel of three military

or an openly hostile government, points significant to Bismullah

and the Parkat Respondents. RA 326a, 4 50.

12

officers. The panel was to “determine whether the pre-

ponderance of the evidence supports the conclusion

that [the] detainee meets the ¢riteria to be designated

as an enemy combatant.” PA 136a, §G(11). Its de-

termination was subject to approval of the CSRT Di-

rector. PA 142a, E-1 §1(8). Uncongenial results were

often ordered to be revisited. RA 296a, § 23; RA 308a,

4] 7(v).

e. Witness Testimony

Although the Procedures expressly allowed wit-

nesses from outside Guantanamo to testify remotely,

PA 136a, E-1 § G(9)(c), not a single outside witness

was ever permitted to testify. RA 328a, 458; RA 305a,

47(i); Mark Denbeaux et al., No-Hearing Hearings:

CSRT, the Modern Habeas Corpus? at 1

(Nov. 17, 2006), available at

http://law.shu.edu/news/final_no_hearing_hearings_re

port. pdf.

f. The Hearing Record

The Recorder was tasked with compiling the record

of the panel proceedings (“Hearing Record”). This re-

cord did not include relevant information in the gov-

ernment’s possession, or even the Recorder’s posses-

sion, unless actually presented to the hearing panel.

PA 146a, E-2 § C(8). Confining the record on review

to the Hearing Record thus would obscure from judi-

cial review any exculpatory material the Recorder

failed to assemble, cull, or present.

13

C. Procedural History

1, The 2006 DTA Filings

Respondents filed their DTA petitions in 2006, and

separately moved to compel production of information

necessary for the record. In 2007, the court ordered

joint briefing on the record on review and a protective

order. It held oral argument on May 15, 2007. The

government submitted Admiral McGarrah’s declara-

tion over two wecks later. PA 225a-239a.

2. Bismullah I

On July 20, 2007, the panel unanimously held that

the record on review includes the Government Infor-

mation as defined by the Procedures. PA 2a.

The court also proposed a protective order that in-

cluded, essentially verbatim, the government's request

to submit for in camera review material it contends is

too sensitive for counsel’s review and provides sanc-

tions for violations of the order generally. PA 8la-82a

(Bismullah III). The protective order was subse-

quently entered and amended but this provision re-

mained unchanged.

3. Bismullah II

In September 2007, the government moved for re-

hea ‘ing and rehearing en banc, for the first time making

a factual proffer concerning burden and national secu-

rity through the declarations assembled at PA 182a-

224a. The government now asserted that compiling

the Government Information would “impose{] an

enormous burden” (a change of position, see PA 64a;

previously the government said its review of Govern-

ment Information was so routine as to merit a pre-

14

sumption of regularity), and would cause “exception-

ally grave damage to national security.” Petition for

Rehearing and Suggestion for Rehearing En Banc at 7,

Bismullah v. Gates, Nos. 06-1197, 06-1397 (D.C. Cir.

Sept. 7, 2007) (quotation omitted). The panel re-

viewed the declarations and denied reconsideration,

noting that Bismullah I had simply “adoptied] the

definition of Government Information exactly as it ap-

pears in the DoD Regulations themselves.” PA 59a.

The security concerns had also been addressed: “(we}

providjed]|, just as the Government urged, that it may

withhold from the [Respondents’] counsel any Gov-

ernment Information that is either ‘highly sensitive in-

formation, or ... pertain{s| to a highly sensitive source

or to anyone other than the detainee.’” PA 64a.

4. Bismullah III

On February 1, 2008, the full court of appeals de-

nied the government’s request for rehearing en banc.

Chief Judge Ginsburg responded to a new contention,

appearing for the first time in Judge Randolph's dis-

sent, that 28 U.S.C. § 2112(b) defines the record on re-

view. PA 7la-72a.

REASONS FOR DENYING THE PETITION

A. The Petition Should Not Be Held.

Respondents urge the Court to consider and deny

the Petition, and not to hold it. The Petition is both

premature and meritless and should be denied now so

that Respondents may proceed with their DTA cases.

~

1S

B. Certiorari Review Is Premature.

Bismullah I is an interlocutory order regarding in-

formation to be included in the record on review. It

falls well outside the normal scope of orders for which

certiorari review is granted. See, e.g., Mazurek ». Arm-

strong, 520 U.S. 968, 975 (1997) (per curiam); Va. Mili-

tary Inst. v. United States, 508 U.S. 946 (1993) (Scalia,

J., respecting denial of ceritorari); Société Nationale In-

dustrielle Aérospatiale v. United States Dist. Ct. for the S.

Dist. of Iowa, 482 U.S. 522, 527 (1987). Because there

is no actual record in any case, as Judges Rogers and

Brown agreed, the question of what actually would go

into a specific record on review remains open. PA 30a,

99a.

Every interlocutory appellant argues that its con-

cerns must be reviewed immediately, lest inconven-

ience or injustice ensue. The principle of the final

judgment rule recognizes that the greater harm lies in

systemic delay, In re Briscoe, 448 F.3d 201, 214-15 (3d

Cir. 2006), a harm that is compounded when this Court

is asked to spend its scarce adjudicatory resources re-

viewing preliminary procedural orders. The govern-

ment’s claim for an exception boils down to the asser-

tion that it would be required to undertake a larger

search and place into a secure facility a larger record

than would be the case if the decision is reversed. Not

only is its claim of interlocutory harm unpersuasive, as

further discussed below, but the burden it asserts is

minimal compared to the burden that delay imposes on

Respondents who remain imprisoned.

While this Court is not subject to the final judg-

ment rule, 28 U.S.C. § 1291, the strong policy of the

rule militates against a grant of certiorari review here.

16

Cobbledick v. United States, 309 U.S. 323, 325 (1940)

(“Congress from the very beginning has, by forbidding

piecemeal disposition on appeal of what for practical

purposes is a single controversy, set itself against en-

feebling judicial administration .... To be effective,

judicial administration must not be leaden-footed.”);

Flanagan v. United States, 465 U.S. 259, 264 (1984).

See also Canter v. Am. Ins. Co., 28 U.S. 307, 318 (1830).

In 2004, this Court directed the district courts to

“consider in the first instance the merits” of the habeas

cases. Rasul v. Bush, 542 U.S. 466, 485 (2004). Dis-

trict judges declined to do so (in the leading case, a

stay entered even after the court found that good

claims had been stated). Cases did not proceed

through the system, noncombatant detainees suffered,

the Executive never obtained the benefit of favorable

adjudications, facts were not established, and Congress

enacted legislation premised on the CSRT process

without knowing what actually happened in it. Years

later, the judicial branch finds itself without a single

case even briefed. A grant of the Petition would simply

prolong this unfortunate history.

19 See In re Guanidnamo Detainee Cases, Nos. 02-CV-0299 ‘CK K)

et al., 2005 U.S. Dist. LEXIS 5295 (D.D.C. Feb. 3, 2005), an ap-

proach followed by all district judges.

17

C. The Petition Should Be Denied Because The Deci-

sion Below Is Correct.

1. The Decision Below Correctly Construed the

DTA.

The government cannot apply the administrative-

law definition of the record without also importing the

protections provided to individuals subject to agency

action. Since none of those protections was granted to

detainees in the CSRT process, the record on review is

not defined by 28 U.S.C. § 2112(b) or analogies to ad-

ministrative law, but by the DTA and its internal ref-

erence to the Procedures. Even if section 2112(b) were

relevant, its terms, and general administrative-law

principles dictate that the record on review should in-

clude the Government Information.

When statutory terms are plain and not absurd,

courts are bound to enforce them. Hartford Underwrit-

ers Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6

(2000); Conn. Nat’l Bank v. Germain, 503 U.S. 249,

253-54 (1992).

The terms are plain here.'"! The statute requires re-

view of whether the status determination was “consis-

tent with the standards and procedures specified by the

Secretary of Defense.” PA 107a-108a, DTA

§ 1005(e)(2)(C). Among those Procedures is the re-

quirement that the “reasonably available” information

in the government’s possession be reviewed, and that

all exculpatory evidence be presented to the hearing

" For this reason, the government’s reliance on legislative history

is misplaced. United States +. Gonzales, 520 U.S. 1, 6 (1997).

vee

18

panel. Without access to the Government Informa-

tion, the court cannot determine whether that oc-

curred. PA 58a-59a (Bismullah IT)2 As Chief Judge

Ginsburg noted in Bismullah III, te rely on a more

narrow record “would render utterly meaningless judi-

cial review intended to ensure that status determina-

tions are made ‘consistent with’ the DoD Regula-

tions.” PA 78a.

The government never explained how the court was

to carry out this review function, except by indulging a

presumption of regularity. Its proposed record would

make that presumption irrebuttable, for without the

Government Information, the Recorder’s actions

would forever remain secret. PA 14a-15a (Bismullah

I). Moreover, whatever notion of regularity survived

the “unsettling” factual record below, PA 30a-3la, was

abandoned in the Petition. The government asserts

that it “likely” cannot comply with the court’s order

and collect the Government Information as defined in

the DTA, which is effectively an admission that it did

not comply with the Procedures in 2004. Pet. 19.1

12 Hamdi v. Rumsfeld, 542 U.S. 507 (2004), involved the kind of

controlled record the government again urges for DTA review.

Id. at 512-14 (describing Mobbs Declaration). After remand from

this Court, when preliminary rulings in the district court threat-

ened to expand that record, the government quickly released

Hamdi to the Kingdom of Saudi Arabia. See Joseph Margulies,

GUANTANAMO AND THE ABUSE OF PRESIDENTIAL POWER 156

(2006). Yaser Ilamdi is a free man today.

13 See PA 76a n.5 (“The record before the court suggests the Re-

corder has not always fulfilled his obligations under the DoD

Regulations.” ).

19

The government’s contention here is also inconsis-

tent with its admission below that the Hearing Record

is an inadequate basis for DTA review of whether the

CSRT’s determination was based on a preponderance

of the evidence. In late October 2007, the government

finally disclosed the Hearing Record in Huzaifa

Parhat’s case. On receipt, counsel sought summary

disposition, arguing that the Hearing Record demon-

strates as a matter of law that none of the allegations

against Parhat would make him an “enemy combat-

ant.”

In opposing, the government argued that if the

lower court determined that the Hearing Record was

insufficient, the government should be permitted to

conduct another CSRT because “in any given case

there may be additional evidence against a petitioner

that supports an enemy combatant determination, but

which was never presented to the Tribunal” and thus

was not part of the Hearing Record. Corrected Brief

for Respondent at 56-57, Parhat v. Gates, No. 06-1397

(D.C. Cir. Feb. 8, 2008). This argument admits the

correctness of Chief Judge Ginsburg’s conclusion that

the court cannot make the preponderance determina-

tion based on the Hearing Record: even the govern-

ment says there “may be additional evidence” relevant

to the preponderance issue."

i4 The government’s view of the record is so restrictive as to raise

inter-branch issues that should not be addressed without a more

complete record. “(T]he legitimacy of the Judicial Branch ulti-

mately depends on its reputation for impartiality and nonparti-

sanship. That reputation may not be borrowed by the political

Branches to cloak their work in the neutral colors of judicial ac-

20

2. Principles of Administrative and Criminal Law

Do Not Require Review of the Decision Below.

The government never claimed below that the

CSRT was an “administrative agency”; it argued only

that the Administrative Procedure Act (“APA”) and

administrative law applied by “analogy.” RA 180a;

Pet. 20-21. Seizing on a theory first posited by Judge

Randolph in his dissent to Bismullah III, the govern-

ment now claims that 28 U.S.C. § 2112 “applies by its

plain terms” to limit the record on review to the Hear-

ing Record. Pet. 20-21.'5 But none of the safeguards

that assure the reliability of agency hearing records

was present during the CSRT process, which was in-

deed suz generis. PA 74a. Detainees were forbidden

from:-seeing the evidence against them and hence un-

able to lodge responses in the record. PA 78a. Excul-

patory information might reach the CSRT panel only

through the fortuity of its presence in government

tion.” Mistretia v. United States, 488 U.S. 361, 407 (1989) (dic-

tum); see Kent ». United States, 383 U.S. 541, 560 (1966) (meaning-

ful review “should not be remitted to assumptions”); United States

v. Klein, 80 U.S. (13 Wall.) 128 (1871). To base a judicial ruling

on a matter as grave as indefinite imprisonment on a presumption

of regularity—particularly given the evidence of pervasive irregu-

larity here—would indeed be to cloak the Executive’s work in “the

neutral colors of judicial action.” Miséretia, 488 U.S. at 407.

'S Absent from oral argument, and never mentioned in three rounds

of briefing below, the argument was waived. United States ».

United Foods, Inc., 533 U.S. 405, 416-17 (2001); Delta Airlines v.

August, 450 U.S. 346, 362 (1981). Sound exercise of discretion

militates against granting interlocutory cerliorart review on the

basis of an argument that was not previously raised by the peti-

tioner.

21

hands and the faithful conduct of the Recorder. PA

75a-76a.

Since “a CSRT’s status determination is the prod-

uct 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 de-

tainee’s accuser,” to allow the government to withhold

the Government Information from the court would

mean proceeding “as though the Congress envisioned

judicial review as a mere charade when it enacted the

DTA.” PA 78a-79a.

a. Section 2112 Does Not Define the

Record on Review.

Section 2112 discusses appellate review of orders of

“administrative agencies, boards, commissions, and of-

ficers.” 28 U.S.C. §2112(a) (emphasis supplied). Sec-

tion 2112(b), which defines the “record on review” to

be filed in an appeal of “such a proceeding” (1.e., one

described in subsection (a)), uses the word, “agency” as

shorthand for “administrative agency,” as used in sub-

section (a). This reading finds support not only in the

plain text, but in the definition of “agency” in 28

U.S.C. § 451, which includes both “commissions” and

“boards.” Thus, when section 2112(b) includes

“agency, commission and board” in its list, “agency”

must mean “administrative agency.”

Unwilling to provide detainees with the procedural

protections guaranteed under the APA, see PA 74a, the

22

government cannot now rest on administrative law to

limit the record on review. If its new argument is cor-

rect, and the record limitations of section 2112(b) ap-

ply to the DTA, then the CSRT is an agency subject to

the APA, because, as Judge Ginsburg explained, none

of the exclusions to the definition of “agency” in 5

U.S.C. § 551 applies. PA 74a. If that were so, then

Respondents were entitled to the full suite of proce-

dural protections enjoyed by litigants before adminis-

trative agencies, including the parties in the govern-

ment’s cases discussing the record on review. See Pet.

20.

Had Congress intended section 2112 to define the

DTA record on review, it could have referenced section

2112 expressly, as statutes often do. See 28 U.S.C.A.

§ 2112 Cross References (citing numerous statutes in-

voking section 2112). Regardless, a general right-of-

review provision not cited in the DTA does not super-

sede the specific scope of judicial review mandated by

the DTA. See PA 76a.

b. If Administrative Law Were Applicable, the

Record on Review Would Include the

Government Information.

Even if administrative-law principles applied by

implication, or section 2112 applied expressly, the re-

cord on review would include the Government Infor-

mation. The Recorder, who was an integral part—

indeed, the cornerstone—of the CSRT, was required by

the Procedures to collect and review all Government

Information. PA 145a, E-2 §C(1). The CSRT was

deemed to have access to and to have reviewed all

Government Information through the Recorder. PA

1l6a, § g(7); PA 129a, § E(3). Thus, material the Re-

23

corder saw or should have seen constitutes material

“directly or indirectly considered” by the “agency,”

2.¢e., the CSRT. Bar MK Ranches v. Yuetter, 994 F.2d

735, 739 (10th Cir. 1993).

Section 2112(b) itself requires that when a question

of fact is being reviewed, the record include “all of the

evidence before the agency.” The DTA expressly au-

thorized the court below to question the CSRT’s fac-

tual findings. PA 107a, DTA § 1005(e)(2)(C)(i); see

also NLRB ». Fruehauf Corp., 720 F.2d 1398, 1401 (Sth

Cir. 1983) (“regardless of the Board’s procedures,” sec-

tion 2112(b) requires material considered by the inves-

tigator but not by the decision-making Board to “be

part of the record before this court when it considers

petitions for enforcement or review”).

Furthermore, courts have not hesitated to consider

a record broader than the one defined by the agency

where there is evidence that the agency failed to create

a complete record. See, ¢.g., Kent County v. EPA, 963

F.2d 391, 396 (D.C. Cir. 1992) (administrative record

included documents “not before the agency when it

made the decision” where agency was “at least negli-

gent in failing to discover” documents). The CSRTs

were non-adversarial proceedings in which the Re-

corder had exclusive power over the record, and there is

strong evidence that the Recorder failed to create a

complete record.

Courts also review all the material before the

agency where serious questions arise whether the

agency followed its own procedures. Esch v. Yeutter,

876 F.2d 976, 991 (D.C. Cir. 1989). The evidence more

than establishes such questions here. If applicable,

core administrative-law principles would require pro-

24

duction of the Government Information as necessary

for performance of the judicial review mandated by

Congress in the DTA.

c. Analogies to Criminal Law and Army Regu-

lation 190-8 Are Unavailing.

As explained in Bismullah II, attempts to analogize

the CSRT process to criminal proceedings and Army

Regulation 190-8 must fail. PA 59a-60a. The court

must look to the language of the DTA for the record on

review. The proposed analogies involve different regu-

lations or statutes and a different balance of due proc-

ess and inherent protections in the initial determina-

tion.

Brady v. Maryland, 373 U.S. 83 (1963), is unavail-

ing for exactly that reason. The constitutional obliga-

tion to produce a more limited universe of exculpatory

material in a criminal proceeding arises in a context in

which the defendant has a full panoply of procedural

protections—among them, the right to counsel, pretrial

discovery procedures, and every opportunity to con-

front incriminatory evidence and respond to it by add-

ing to the record. A detainee has none of that; the gov-

ernment controls the entire CSRT process. To invoke

Brady in a Respondent’s seventh year of uncharged in-

definite imprisonment is remarkable.

Similarly, in Hamdi v. Rumsfeld, 542 U.S. 507, 529-

33 (2004), the plurality interpreted the Constitution,

not a statute, and constructed a procedural framework

by applying Mathews v. Eldridge, 424 U.S. 319 (1976).

The Court’s path here is dictated by the DTA’s terms,

and particularly its mandate that the court of appeals

exercise meaningful oversight of the government’s

25

compliance with the Procedures. The Government In-

formation is plainly required for the court to fulfill that

role.

Hearings under Army Regulation 190-8 are held in

the field soon after capture, when percipient witnesses

are available. The CSRTs operated on the basis of un-

sourced hearsay, years after the fact, and while under

extreme command pressure.

D. The Government’s Claims Of National-Security

Risk Provide No Basis For The Court’s Interven-

tion In This Case.

The government expresses two concerns about na-

tional security: (i) concerns about burden—namely,

time and effort needed for compliance, and (ii) con-

cerns about secrecy—to wit, the consequences of disclo-

sure to counsel. Each concern was fully and fairly ad-

dressed below, by a court to whose institutional compe-

tence such questions are regularly entrusted.

1. Claims of Undue Burden Provide No Basis To

Rewrite a Statutory Obligation.

The Court cannot relieve a party from require-

ments imposed by Congress even if it believes them to

be unduly burdensome. EchoStar Satellite L.L.C. v.

FCC, 457 F.3d 31, 41 (D.C. Cir. 2006); see also South

Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882,

895 (D.C. Cir. 2006). Grounded in the separation of

powers doctrine, this principle applies equally in this

Court. Vance v. Bradley, 440 U.S. 93, 97 (1979).

The government asks this Court to rewrite the

DTA, although Congress declined to do so when it

amended other portions of the statute. See Military

26

Commissions Act of 2006, Pub. L. No. 109-366, 120

Stat. 2635-36 (amending portions of the DTA after

Bismullah first made record requests). The govern-

ment improperly seeks to have this Court legislate

what Congress did not. Dodd ». United States, 545 U.S.

303, 309 (2005).16

2. The CSRT Procedures and Rulings Below Am-

ply Protect the Government’s Interests.

Whether the subject is a terrorist trial, a govern-

ment contract with a manufacturer of Uranium-238, or

the detention of a civilian in Guantanamo, no court

more regularly addresses national-security concerns

than the D.C. Circuit.

The government’s concerns were carefully ad-

dressed by that court. First, under the Procedures, an

agency already can decline to produce material (thus

rendering it not “reasonably available’) if it provides

an adequate substitute or certifies that the information

is not exculpatory. PA 129a, E-1, § E(3)(A). This

eliminates the need for the time-consuming pre-

16 These cases do not warrant certiorari review, as no burden was

shown as to these Respondents. The government advised in Au-

gust that it was “expending significant resources actively gather-

ing and reviewing material that might be treated as part of the

record in this case and other cases filed under the DTA,” Resp’t

Opp. to Dates Proposed in Mot. for Entry of Scheduling Order at

7-8 (filed Aug. 22, 2007), but the government’s submissions iden-

tify no specific burden associated with these Respondents.

17 Congress regularly reposes authority and discretion in this arca

on that court. See 8 U.S.C. §§ 1535(a), (b); 8 U.S.C. § 1189(c);

D.C. Cir. Rules 47.6(a), (d). See also Classified Information Pro-

cedures Act, 18 U.S.C. App. 3 §§ 1-16.

27

disclosure review of which the government complains. *

Second, the protective order permits submission for in

camera review of any material the government con-

tends is too sensitive for counsel’s review. PA 8la.”

Third, it imposes sanctions for any violations of confi-

dentiality. PA 5la. Where those tools are inadequate,

case-by-case amendments of the protective order or

other prehearing procedures may be considered in a

specific DTA case.

The government never explains why these tools are

inadequate. The Hearing Records contain Govern-

ment Information—just not all of it—and therefore

should already contain information quite as sensitive

as the omitted material.~ Since 2004, Hearing Re-

cords, in the form of habeas returns, have been shared

with scores, perhaps hundreds of habeas counsel. The

government never sought to make a record below ex-

plaining why this system, which has worked since 2004,

would not continue to work.

18 The government claims that it has “always sought in good faith

to provide Tribunals with any pertinent .. . exculpatory informa-

tion.” Pet. 25. As it is now clear that all exculpatory information

was not provided during the 2004 CSRTs, the government should

have no objection to conducting the relevant searches now.

19 In the context of claims of governmental privilege, the Court

has held that in camera review “is a highly appropriate and usefu)

means of dealing with {such} claims.” Kerr ». United States Dist.

Court, 426 U.S. 394, 405-06 (1976); United States ». Nizon, 418

U.S. 683, 706 (1974).

20 If the Hearing Records contain less sensitive information than

the Government Information, that suggests that the 2004 searches

were not properly conducted and highlights the need for swift ad-

judication of DTA cases with full records on review.

28

Any burden is due to the government’s failure to

comply with its own Procedures. The government

knew in 2004 that the CSRTs would be subject to liti-

gation. Although the DTA had not yet been enacted,

the CSRTs were implemented immediately after Rasul.

Had the government collected the Government Infor-

mation, as the Procedures required, and retained it,

production of the required records now would entail

minimal effort. The government’s failure to comply

with the Procedures in 2004 should not relieve it of its

statutory obligations today.

3. The Context

The government’s national-security alarums arose

only after adverse judicial rulings.

When it filed its opening brief below, the govern-

ment did not describe any threat to national security.

Indeed, at oral argument it suggested that national-

security concerns were manageable, assuring the court

that ex partie submissions required to protect that in-

terest would be minimal. RA 204a.

The first declaration was filed only after ora] argu-

ment. PA 225a. It disclosed no national-security risk

except at paragraph 12a (averring that government in-

formation was sometimes withheld because it “could

reasonably be expected to cause harm to national! secu-

rity by revealing sensitive information such as sources

and methods”). PA 235a. There the matter stood

through June and most of July. The government filed

no other declarations.

Bismullah I issued on July 20. The court invited,

and the parties provided, comment on the proposed

protective order, with no changes to its ex parte provi-

29

sions. In October, the court further amended the order

following its review of the public versions of the secu-

rity declarations.

Only after briefs, an oral argument, a _ post-

argument declaration, and an adverse decision did the

government file the suite of new declarations in Sep-

tember. PA 182a-224a.

4. Averments of the Declarations

The panel closely reviewed the averments in the

publicly filed declarations. On October 3, 2007, it

found that they did not counsel a different result on

the record on review. PA 55a-66a.

a. The Claimed Burden

As Chief Judge Ginsburg noted, the practical issue

was the burden of compliance, not any real risk to se-

curity, PA 60a, and burden is not sufficient, PA 60a-

63a.

But claims of burden were overstated. For exam-

ple, CIA Director Hayden says that the CIA may have

to produce “tens of thousands” of “highly classified

documents.” PA 184a. There are approximately 180

DTA petitioners. If “tens of thousands” means (hypo-

thetically) 50,000, there may be fewer than 300 docu-

ments per detainee. For all we can tell, as to many de-

tainees, there may be no “highly classified” documents

at all.

Most of the Government Information is readily

available, including apprehension reports, interroga-

tions logs and the interrogators’ “knowledgeability

30

briefs.”2! The government was able to hold 558 CSRTs

within just a few months, beginning in August 2004,

when national-security concerns were certainly no less

severe.2 Its ability to act quickly then suggests either

that its claims are rhetorical now, or that in 2004 its

irregularities were massive. If the latter, it is all the

more urgent that the situation be remedied and that

the cases proceed on a full record.

Director Hayden says that many CIA documents

reveal clandestine and covert intelligence activities.

PA 185a-186a. Yet since 2004 such materials have

been disclosed to security-cleared habeas counsel in a

secure facility. Nothing should be different about the

sensitivity of the current material. There simply would

be more of it.

b. “Reasonably Available”

Bismullah I ordered only the production of what is

reasonably available. PA 2a. FBI Director Mueller’s

description of burdens attending FBI computer

searches, PA 192a-193a, is a contention as to what is

“reasonably available,” as is NSA Director Alexander’s

discussion of signal intelligence, PA 204a-205a. The

thousands of hours of research Secretary England iden-

tifies, PA 218a-222a, may be a similar contention, or

21 See, e.g., Memo. in Supp. Pet. Mot. for Preservation Order, Ei

Banna v. Bush, No. 04-CV-1144 (D.D.C. Dec. 5, 2005) {RWR)

(detailing types of documents believed to be in the government’s

possession).

2 See, ¢.g., Sara Wood, Tribunals Held for High-Value Detainees

at Guantanamo, Mar. 12, 2007, avatiable at

http://www.defenselink.mil/news/newsarticle.aspx?id=3346.

31

may evidence a fruitless effort to find some basis for

detention in a specific case. The government is cer-

tainly free to assert its claims in individual litigations.

If so, the court will adjudicate them. But in the ab-

sence of concrete claims anchored to a specific record,

the generic affidavits proffered by the government

provide no basis for sound judicial decisionmaking.

ec. Source Compromise

Director Hayden avers that disclosure of some CIA

information might compromise foreign intelligence ser-

vices and confidential sources, or dissuade them from

future cooperation. PA 186a. Director Mueller makes

a similar point. PA 196a. The thesis ignores the op-

tion, in an appropriate case under the Procedures, to

produce a certificate or suitable replacement. Again,

arguments like this can only be addressed in the con-

text of specific cases.

d. Disclosure to Counsel

Director Hayden sees danger in disclosure of infor-

mation to security-cleared counsel. PA 187a-188a. Yet

lawyers practicing in the federal courts often receive

highly classified information. The trials of the shoe

bomber in Boston, the millennium bomber in Seattle,

and Zacharias Moussaoui in Northern Virginia are re-

cent cases in which classified information was disclosed

to defense counsel, without compromising national se-

curity. See Sarah Kershaw, Terrorist in ’99 U.S. Case

Is Sentenced for 22 Years, N.Y. TIMES, July 28, 2005,

at A20; Erie Lichtblau, Judge Rules 9/11 Defendant is

Competent to Plead Guilty, N.Y. TIMES, Apr. 21, 2005,

at Al4; Associated Press, Life Sentence for Shoe

Bomber/“ We are not afraid,” Judge tells him, NEWSDAY,

32

Jan. 31, 2003, at A06. Congress knew, when it enacted

the DTA, that it was creating judicial review. That

meant that lawyers would have access to classified in-

formation.2

e. Concerns Since Resolved

Director Mueller raised certain logistical concerns

regarding classified information, PA 197a, that were

thereafter addressed by the court below in revisions to

its protective order dated October 23, 2007, PA 45a-

49a, a measure that, as Director Mueller concedes,

“would alleviate some of the FBI’s concerns,” PA 198a.

f. Irrelevant Argument

Director of National Intelligence McConnell and

General Alexander describe the appalling crimes of

9/11, and the latter adds a section about a “global war

on terror.” PA 20la. But these declarants add nothing

specific about national security other than the point

about signal intelligence.

xe * *

In sum, the declarations do not justify this Court’s

intervention. Of course national security is involved, as

Congress well knew when it enacted the DTA. And

there may be issues left to litigate in other DTA cases

about specific records. But none of this justifies this

Court’s intervention in the careful work performed by

23 Admiral McGarrah’s declaration disclosed that Government

Information was reviewed in the first instance not by skilled intel-

ligence officers, but by newly hired contractors with two weeks’

training. PA 227a-230a. Subcontracting this work hardly sug-

gests alarm about security matters.

33

the institutionally proper court to impose safeguards

necessary to protect national security. See, e.g., Nat’l

Council of Resistance of Iran v. Dep’t of State, 373 F.3d

152, 154 (D.C. Cir. 2004) (exercising its exclusive ju-

risdiction to review appeals of designated “foreign ter-

rorist organizations” under 8 U.S.C. § 1189(a)(1));

Elisberg v. Mitchell, 709 F.2d 51, 58 (D.C. Cir. 1983)

(recognizing executive competency in national security,

but holding that “to ensure that the state secrets privi-

lege 1s asserted no more frequently and sweepingly

than necessary, it is essential that the courts continue

to critically examine instances of its invocation”);

Halperin v. Kissinger, 606 F.2d 1192, 1199 (D.C. Cir.

1979) ({WJhen presented with a “conflict between the

Government’s need to act decisively to safeguard the

nation’s security and those individual rights that are

implicated .... We must carefully consider any impact

that its decision might have on the nation’s ability to

defend itself.”), aff’d per curiam, 452 U.S. 713 (1981).

E. The Habeas Appeals Provide No Basis For The

Court’s Intervention Here.

The government argues that these cases are “in sig-

nificant respects intertwined with the threshold issues

pending before the Court in Bowmediene,” Pet. 13; that

“(t]he outcome in this case may be directly affected” by

this Court’s disposition of the habeas appeals, id. at 17;

and, therefore, that “the Court should hold this peti-

tion pending Boumediene,” id. at 19.

The government first raised the purported linkage

between these cases and the habeas appeals five months

ago, but in a very different way. At that time, the

statute and the regulations were what they are today.

The habeas appeals were pending, just as they are to-

34

day. Bismullah I defined the “record on review” just

as it does today, to include the entirety of the Govern-

ment Information.

Yet what the government told this Court it should

do about purported “intertwining” then was the precise

opposite of what it says today. “If this Court deter-

mines that [the habeas] petitioners have Suspension

Clause rights and that habeas would have been avail-

able to them at common law,” the government wrote,

“it should decline to rule on the adequacy of the DTA

at this time, but instead require them to exhaust their

available DTA remedies.” Brief for Respondents at 41,

Boumediene v. Bush, Al Odah v. Bush, nos. 06-1195, 06-

1196 (U.S. Oct. 9, 2007) (emphasis supplied). It was

full speed ahead in the DTA proceedings: “This Court

should not attempt to evaluate the adequacy of the

DTA until the District of Columbia Circuit has had an

opportunity to construe the statute and this Court can

examine ils operation in a concrete setting.” Id. (empha-

sis supplied). Habeas should be stalled, the govern-

ment argued, while “important questions ... as to the

scope of review” in a DTA case were “fleshed out on a

case by case basis.” Id. “Case by case,” “concrete set-

ting,” “exhaustion”: the drumbeat was unmistakable.

Habeas appeals must stand aside while cases moved to

decision under the DTA.

That was then. In the habeas appeals, the govern-

ment urged this Court to defer to the DTA; now it

urges the same Court—by seeking certiorari review of

an interlocutory ruling, no less—to defer the DTA to

24 Bismullah II was decided six days earlier. PA 53a.

35

habeas. There is a consistency here, and has been since

2004: all progress, in all cases, should simply be frozen.

But neither argument is sound, because the cases pre-

sent different issues. There is no reason that any ha-

beas petitioner should have to exhaust DTA remedies,

and the DTA cannot be converted into habeas through

exhaustion. Conversely, there is no reason for this

Court to delay Respondents’ pursuit of the review that

the DTA provides. DTA cases like this one turn on

questions of statutory, not constitutional, construc-

tion, a determination made based on the statute’s text

and function.

The government suggests that the Court might

construe the DTA in Boumediene to “avoid” any con-

stitutional difficulty. Pet. 18. How such a construc-

tion could contract the record is a mystery. If the

Boumediene petitioners prevail, there is a constitu-

tional right to habeas, and contracting the record will

hardly create an adequate substitute. If the govern-

ment prevails, no question of constitutional avoidance

arises. The government’s position in Boumediene un-

derscores the urgency of progressing cases under the

DTA, which it says is the only judicial review avail-

able. Further delaying access to that review is uncon-

scionable.

Nor is the question whether the government might

hold new CSRTs rather than produce records on re-

view in DTA cases a link between this case and Boum-

ediene. No aspect of Bouwmediene would require the

government to institute new CSRTs, and no party to

Boumediene asked for them. The only decision that

contemplates new CSRTs is Bismullah II, which men-

tions the possibility only as an alternative to producing

36

the Government Information. Thus, the possibility of

further CSRTs under the DTA regime does not justify

linking these cases with the habeas appeals.

Respondents agree with the Boumediene petitioners

that the DTA is unconstitutional because it does not

provide a remedy remotely equivalent to the habeas re-

view to which they are entitled. Respondents, how-

ever, are entitled to their statutory review, and there is

no scenario in which this Court’s ruling in Boumediene

will constrict the contours of that review. Allowing the

government to tie its Petition seeking to narrow the

statute to the disposition of cases not presenting that

issue simply interposes yet more months of delay be-

fore Respondents can obtain any review of their im-

prisonments. .

The government suggests that a ruling in Boumedt-

ene would “highlight the importance of the procedures

for DTA review.” Pet. 13. Huzaifa Parhat is in Camp

6—the issue needs no highlighting for him. One sus-

pects that, with 180 cases now stalled, the court below

needs no highlighting either.

25 The concept of new CSRT'ss has never made sense. If a new

CSRT is convened, the government will have the same obligation

to assemble the Government Information, and the same obligation

to place all exculpatory evidence: before the panel. The posited

burdens in assembling this materia] would be unchanged. The

“risks” to national security through counsel access in subsequent

DTA review would be the same. It would be no easier to assemble

the material for a CSRT than it would be to assemble it for the

record on review ina DTA case.

37

CONCLUSION

For the foregoing reasons, the Court should not

hold the Petition and should deny it.

John B. Missing

Anupama Connor

DEBEVOISE & PLIMPTON LLP

555 13th Street, N.W.

Ste. 1100E

Washington, D.C. 20004

Jennifer R. Cowan

Philip Rohlik

Keith E. Blackman

Jill van Berg

Andrew Pak

DEBEVOISE & PLIMPTON LLP

919 Third Avenue

New York, N.Y. 10022

(212) 909-6000

Counsel for Bismullah et al.

Dated: March 3, 2008

Respectfully submitted,

Sabin Willett

Counsel of Record

Rheba Rutkowski

Neil McGaraghan

Jason Pinney

Sukti Dhital

Samuel R. Rowley

*Laura K. Langley

BINGHAM MCCUTCHEN LLP

150 Federal] Street

Boston, MA 02110

(617) 951-8000

Susan Baker Manning

BINGHAM MCCUTCHEN LLP

2020 K Street, N.W.

Washington, D.C. 20006

(202) 373-6000

Counsel for Parhat et al.