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No. 07-1054

 

In the Supreme Court of the United States

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
PETITIONERS

v.

HAJI BISMULLAH, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
JONATHAN F. COHN
Deputy Assistant Attorney
General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
DOUGLAS N. LETTER
ROBERT M. LOEB
AUGUST E. FLENTJE
CATHERINE Y. HANCOCK
JENNIFER PAISNER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

The Department of Defense has held military hear ings using Combatant Status Review Tribunals (CSRTs) to determine whether foreign nationals captured abroad by the United States during the war on terror and de tained at the Guantanamo Bay Naval Base in Cuba are properly designated as enemy combatants. In prepara tion for each CSRT hearing, a military officer examined material from a variety of government agency files and presented a subset of that material to the CSRT. The CSRT considered that evidence, along with the de tainee's evidence, in determining whether the detainee is an enemy combatant. A final decision of a CSRT may be reviewed exclusively in the United States Court of Appeals for the District of Columbia Circuit under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, § 1005(e)(2), 119 Stat. 2739. The adequacy of the procedures established by the DTA is currently pen ding before this Court in Boumediene v. Bush, No. 06- 1195 (argued Dec. 5, 2007), and Al Odah v. United States, No. 06-1196 (argued Dec. 5, 2007). The question presented in this case is:

Whether, in an action brought under the DTA, the record for judicial review of a CSRT determination con sists of the material presented to and considered by the CSRT, or whether it extends to the much broader cate gory of all reasonably available information in the pos session of the United States government bearing on the issue of whether the detainee is an enemy combatant, regardless of whether the material was actually pre sented to or considered by the CSRT.

 

PARTIES TO THE PROCEEDING

The petitioners are Robert M. Gates, Secretary of Defense; Harry B. Harris, Admiral, United States Navy; and Wade F. Davis, Colonel, United States Army.

The respondents are Haji Bismullah, a/k/a Haji Bis millah, a/k/a Haji Besmella; Haji Mohammad Wali, act ing as next friend of Haji Bismullah; Huzaifa Parhat; Abdusabour; Abdusemet; Hammad; Jalal Jalaldin; Kha lid Ali; and Sabir Osman.

In the Supreme Court of the United States

No. 07-1054

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
PETITIONERS

v.

HAJI BISMULLAH, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Secretary of Defense and the other federal petitioners, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a- 54a) is reported at 501 F.3d 178. The supplemental opinion of the court of appeals on petition for panel re hearing (App., infra, 55a-66a) is reported at 503 F.3d 137.

JURISDICTION

The judgment of the court of appeals was entered on July 20, 2007, and was amended on October 23, 2007. A petition for rehearing was denied on February 1, 2008 (App., infra, 67a-102a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Pertinent provisions are reprinted in the appendix to the petition (App., infra, 103a-112a).

STATEMENT

1. Following the 9/11 attacks, the President-with the backing of Congress, see Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224-or dered United States Armed Forces to subdue both the al Qaeda terrorist network and the Taliban regime har boring it in Afghanistan. Although our troops have re moved the Taliban from power, armed combat with al Qaeda, the Taliban, and associated forces remains ongo ing. In connection with those conflicts, the United States has seized many hostile persons and detained a small fraction of them as enemy combatants. Approxi mately 275 of these enemy combatants are being held at the United States Naval Base at Guantanamo Bay, Cu ba. Each of them was captured abroad and is a foreign national.

2. With the exception of a handful of newly-arrived detainees, every Guantanamo Bay detainee has received a hearing before a military Combatant Status Review Tribunal (CSRT). CSRTs are designed "to determine, in a fact-based proceeding, whether the individuals de tained * * * are properly classified as enemy combat ants and to permit each detainee the opportunity to con test such designation." App., infra, 121a. An "enemy combatant" is 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." Id. at 124a.

During the CSRT proceedings, each detainee re ceived procedural protections modeled on-and, indeed, exceeding-the procedures used by the Army for deter mining the status of detainees under the Geneva Con vention. Compare U.S. Dep't of the Army et al., Regula tion 190-8, Enemy Prisoners of War, Retained Person nel, Civilian Internees and Other Detainees (Nov. 1, 1997) <http://usapa.army/mil/ pdfiles/r190_8.pdf> (im plementing Article 5 of the Third Geneva Convention), with App., infra, 113a-168a (CSRT procedures); see also U.S. Br. at 48-53, Boumediene v. Bush and Al Odah v. United States, Nos. 06-1195 & 06-1196 (argued Dec. 5, 2007).

CSRT procedures provided for each detainee to re ceive notice of the unclassified factual basis for his des ignation as an enemy combatant and to be afforded the opportunity to testify, to call relevant and reasonably available witnesses, and to present relevant and reason ably available evidence. App., infra, 121a. CSRT proce dures also ensured that each detainee was assigned a military officer to serve as his "personal representative" to assist him by "explain[ing] the nature of the CSRT process," "explain[ing] his opportunity to personally appear before the Tribunal and present evidence," and "assist[ing] [him] in collecting relevant and reasonably available information and in preparing for and present ing information to the CSRT." Id. at 132a-133a.

A military officer also served as the recorder for each CSRT. The recorder was charged with presenting evidence to the CSRT regarding whether the detainee should be designated as an enemy combatant, including any evidence suggesting that the detainee should not be so designated. App., infra, 137a-138a. Specifically, CSRT procedures required the recorder to "obtain and examine the Government Information" to determine what materials should be presented to the CSRT. Id. at 145a. "Government Information" includes

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 desig nated as an enemy combatant, including information generated in connection with the initial determina tion to hold the detainee as an enemy combatant and in any subsequent reviews of that determination, as well as any records, determinations, or reports gen erated in connection with such proceedings.

Id. at 129a. From that information, the recorder ex tracted the "Government Evidence" to present to the CSRT, which includes "such evidence in the Government Information as may be sufficient to support the de tainee's classification as an enemy combatant" as well as any evidence that "suggest[ed] that the detainee should not be designated as an enemy combatant." Id. at 137a- 138a, 143a-144a. In advance of the CSRT hearing, the recorder prepared an unclassified summary of the Gov ernment Evidence and provided it to the detainee's per sonal representative. Id. at 144a.

In searching for and gathering material for the CSRTs, recorders relied most heavily on the two gov ernment databases most likely to contain information pertaining to detainees, the Joint Detainee Information Management System and the I2MS system. App., infra, 230a-232a. Those databases contain disseminated intel ligence reports from other agencies, interrogation re ports, and law enforcement records. Ibid. Given the scope and reliability of the material contained within those databases, they generally yielded the vast major ity of any Government Information about a detainee. Id. at 231a. Nonetheless, when material found in the two key databases suggested other sources of information to a recorder, the recorder pursued those sources of infor mation to ensure that there was no other relevant, nonduplicative material to present to the CSRT. Ibid. If the additional information a recorder sought was sen sitive classified information held by an intelligence agency, he was permitted to view the agency's files, but the files remained in the possession of the agency. See id. at 232a-233a.

Each CSRT hearing was presided over by "three neutral commissioned officers" who were not involved in the "apprehension, detention, interrogation, or previous determination of status of the detainee." App., infra, 114a-115a, 125a. Those officers reviewed the evidence presented by the recorder and the detainee, using a "rebuttable presumption * * * that the Government Evidence * * * is genuine and accurate," "deter mine[d] whether the preponderance of the evidence support[ed] the conclusion that [the] detainee m[et] the criteria to be designated as an enemy combatant," and "ma[de] a written assessment as to [the] detainee's sta tus." Id. at 125a, 136a.

After each detainee's hearing, the recorder prepared and preserved the record of proceedings, which con sisted of all the documentary evidence presented to the tribunal, the transcript of all witness testimony, a writ ten report of the tribunal's decision, and an audio re cording of the proceedings (except proceedings involving deliberation and voting by the members). App., infra, 140a-141a; see id. at 141a (stating that this material "constitute[d] the record" of each detainee's proceed ing). Recorders did not, however, prepare a single file containing all of the information they examined for a de tainee's case or memorializing their thought processes in determining which leads to pursue in gathering the evidence to present to the CSRTs. Id. at 216a-217a.

Each CSRT determination was subject to mandatory review first by the CSRT Legal Advisor and then by the CSRT Director, both of whom utilized the record compiled by the recorder to assess the legal sufficiency of the CSRT determination. App., infra, at 127a, 141a- 142a. After those reviews, a CSRT determination was considered "final." Id. at 143a.

In addition to the CSRT review process, the Depart ment of Defense also conducts an annual administrative examination of whether it is appropriate to release or transfer any enemy combatant. See Paul Wolfowitz, Deputy Secretary of Defense, Administrative Review Board Procedures for Enemy Combatants in the Con trol of the Department of Defense at Guantanamo Bay Naval Base, Cuba (May 11, 2004) <http://www.defense link.mil/news/May2004/ d20040518gtmo review.pdf>. In addition, even after a final CSRT determination, a de tainee or a person acting on his behalf may submit new evidence relating to the detainee's enemy combatant status at any time, and if that evidence is material, a new CSRT will be convened to consider it. App., infra, 179a-180a.

3. Congress provided a mechanism for federal judi cial review of final CSRT determinations in the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, § 1005(e)(2), 119 Stat. 2739. Section 1005(e)(2) of the DTA provides that the Court of Appeals for the District of Columbia Circuit "shall have exclusive jurisdiction to determine the validity of any final decision of a Combat ant Status Review Tribunal that an alien is properly detained as an enemy combatant." DTA § 1005(e)(2)(A), 119 Stat. 2742. The scope of that review is limited to assessing (1) whether the final CSRT decision "was con sistent 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," and (2) "to the extent the Constitution and laws of the United States are appli cable, whether the use of such standards and proce- dures to make the determination is consistent with the Constitution and laws of the United States." DTA § 1005(e)(2)(C), 119 Stat. 2742.

At the same time, Congress amended the federal habeas corpus statute to remove federal-court jurisdic tion over habeas corpus petitions filed by detainees. See DTA § 1005(e)(1), 119 Stat. 2742. Congress reiterated and extended that jurisdictional limitation in the Mili tary Commissions Act of 2006 (MCA), Pub. L. No. 109-366, § 7(a), 120 Stat. 2636, providing that "[n]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus" filed by a Guantanamo Bay detainee, or have jurisdiction over "any other action" brought by a detainee "against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of con finement," except an action authorized in Section 1005(e) of the DTA. See Boumediene v. Bush, 476 F.3d 981, 987 & n.3 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (2007).

4. Numerous detainees have challenged the MCA's removal of federal-court jurisdiction over habeas peti tions filed by Guantanamo Bay detainees and the ade quacy of the judicial review of CSRT determinations available under the DTA and MCA. The District of Co lumbia Circuit rejected those challenges, Boumediene v. Bush, 476 F.3d 981 (2007), and this Court granted cer tiorari. Boumediene v. Bush, 127 S. Ct. 3078 (2007). Boumediene and its companion case, Al Odah v. United States, were argued on December 5, 2007, and are cur rently pending before this Court. Boumediene v. Bush, No. 06-1195 (argued Dec. 5, 2007); Al Odah v. United States, No. 06-1196 (argued Dec. 5, 2007). In its order granting certiorari in Boumediene and Al Odah, this Court noted that "it would be of material assistance to consult any decision" by the court of appeals in the pres ent case. 127 S. Ct. 3078.

5. Respondents are foreign nationals captured abroad and detained at the naval base at Guantanamo Bay. App., infra, 3a. Each of them has been adjudi cated by a CSRT to be an enemy combatant. Id. at 2a- 3a. Respondents sought review of their CSRT determi nations in the court of appeals under the DTA and re quested wide-ranging discovery. Ibid. In order to eval uate respondents' discovery requests, the court of ap peals-in the wake of its decisions upholding the MCA and DTA in Boumediene and Al Odah-determined that it was required to define "the record to which th[e] court must look as it reviews a CSRT's determination" and ordered briefing and argument on that question. Id. at 10a.

On July 20, 2007, the court of appeals issued a deci sion holding that the record on review "consists of all the information a Tribunal is authorized to obtain and consider," "hereinafter referred to as Government In formation 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." App., infra, 2a (internal quotation marked omitted); see id. at 38a. That is, the court de fined the record for judicial review to include not only the evidence presented to and considered by the CSRT, but also every piece of potentially relevant, reasonably available information the recorder examined while iden tifying the materials to present to the CSRT. Id. at 2a, 12a-13a. The court then adopted a "presumption * * * that counsel for a detainee has a 'need to know' the clas sified information relating to his client's case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information." Id. at 3a.

The court of appeals provided two reasons for its holding. First, it stated that production of all Govern ment Information was necessary to ensure that the re corder did not withhold any exculpatory information from the CSRT. App., infra, 13a-14a (reasoning that, unless the detainees' counsel had access to all informa tion in the government's possession, there would be "no * * * way for the counsel to present an argument that the Recorder withheld exculpatory evidence from the Tribunal in violation of the specified procedures"). Sec ond, the court explained that it could not "consider whether a preponderance of the evidence supports the Tribunal's status determination" "without seeing all the evidence." Id. at 14a-15a; see id. at 17a-18a.

6. On September 7, 2007, the government filed a petition seeking expedited rehearing and suggesting rehearing en banc. In support of its petition, the gov ernment submitted sworn declarations (both unclassi fied and classified) from the Directors of the Central Intelligence Agency, the National Security Agency, and the Federal Bureau of Investigation; the Director of National Intelligence; and the Deputy Secretary of De fense, explaining the extraordinary burdens and na tional security risks created by the court's decision. See App., infra, 182a-239a.1 The government also filed a motion to expedite consideration of its rehearing peti tion and any related proceedings, pointing to the fact that Boumediene and Al Odah were already pending before this Court.

a. On October 3, 2007, the panel of the court of ap peals denied rehearing. In reaffirming its holding, the panel deemed it "irrelevant" that CSRT procedures were modeled on Army Regulation 190-8-which does not require that the military turn over any information in its possession to a detainee, App., infra, 59a-and that its holding requires the government to turn over more evidence to a detainee than the Constitution af fords to United States citizens in criminal trials, id. at 60a (citing Brady v. Maryland, 373 U.S. 83 (1963)). Moreover, although the court acknowledged that, at the time of the CSRT determinations, recorders had no rea son to "retain that portion of the Government Informa tion [they] did not forward to the Tribunal," id. at 61a n.4, it nonetheless held that the government must either recreate such a record or "convene a new CSRT" for each detainee. Id. at 62a-63a.

b. On February 1, 2008, the en banc court of appeals issued an order denying the government's petition for rehearing en banc by a 5-5 vote. Five separate opinions accompanied that order. App., infra, 67a-102a.

i. Chief Judge Ginsburg, joined by Judges Rogers, Tatel, and Griffith, concurred in the denial of rehearing. App., infra, 71a-82a. He reiterated the bases for the initial panel decision and restated the government's op tions under that decision: "either 'reassemble the Gov ernment Information it did collect or . . . convene a new CSRT.'" Id. at 77a (quoting opinion denying panel rehearing).

ii. Judge Garland separately concurred in the denial of rehearing. App., infra, 83a. He explained that he did not favor rehearing en banc for the sole reason that it would "plainly delay [the court of appeals'] decision and hence the Supreme Court's disposition of Boumediene." Ibid.

iii. Although she was a member of the original panel, Judge Henderson, joined by Judges Sentelle, Randolph, and Kavanaugh, dissented from denial of rehearing en banc, based on her serious concerns about the correct ness of the panel's decision and its implications for na tional security. App., infra, at 83a-89a. Judge Hender son rejected the notion that the court was required to view all Government Information to conduct its review under the DTA, explaining that, in the criminal context, a court can review "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 posses sion." Id. at 85a. She also noted that, in the administra tive agency context, a reviewing court has "no license to 'create' a record consisting of more than the agency it self had before it." Id. at 86a. And she acknowledged the enormous obligations the panel's decision would place on the government and the court, id. at 88a-89a & n.5, and noted that "the five officials- charged with safeguarding our country while we are now at war- have detailed the grave national security concerns the [panel's] holding presents," id. at 88a.

iv. Judge Randolph, joined by Judges Sentelle, Hen derson, and Kavanaugh, separately dissented from de nial of rehearing en banc. App., infra, 90a-99a. He ex plained that the panel's holding "is contrary to the rule and the statute governing the contents of the record in cases such as these," "violates the restrictions on [the court's] jurisdiction in the [DTA]," and "risks serious security breaches for no good reason." Id. at 90a. In his view, 28 U.S.C. 2112(b) and Federal Rule of Appellate Procedure 16(a)-which the panel's decision did not even address-"make crystal clear" that "the record does not include information never presented to the [CSRT]." App., infra, 91a. And he noted that "[t]he Department of Defense regulation directly on point" reinforces that view. Id. at 91a n.2; see id. at 93a n.4. Finally, he expressed his concern that production of all Government Information would not assist in judicial review, while "its assembly and filing in this court, and potential sharing with private counsel, gives rise to a severe risk of a security breach." Id. at 95a.

v. Judge Brown also dissented from denial of rehear ing en banc, stating that the court's "continuing debate suggests the court has not yet found the right para digm." App., infra, 99a-102a. She too noted the enor mity of the government's burden to either "conduct a new search" to construct a "theoretical record" or "re convene [each] CSRT." Id. at 99a-100a & n.1.

REASONS FOR GRANTING THE PETITION

In Boumediene v. Bush and Al Odah v. United States, this Court is currently considering several cru cial issues concerning the constitutionality of the MCA and DTA and the adequacy of the procedures and judi cial review currently provided for captured enemy com batants to challenge their detention at the Guantanamo Bay Naval Station. As this Court recognized when it granted certiorari in those cases, see 127 S. Ct. 3078, the important question presented by this case concerning the scope of the record on review in an action brought under the DTA is in significant respects intertwined with the threshold issues pending before the Court in Boumediene and Al Odah.

If, for example, this Court in Boumediene and Al Odah reaches the question of the adequacy of the DTA procedures as a substitute for the review provided in common-law habeas in 1789, it may have an opportunity to interpret the procedures for DTA review, including the "record on review," so as to avoid any constitutional difficulties. If, on the other hand, this Court determines that detainees do not have Suspension Clause rights, it would highlight the importance of the procedures for DTA review, and the Court could either grant the peti tion outright at that point, or it could permit the court of appeals to revisit its ruling on the scope of the record for judicial review in light of the Court's explanation of what rights (if any) detainees have to judicial review. Either way, this Court's decision in Boumediene and Al Odah is likely to directly inform the question in this case.

At the same time, there is no reason to place the gov ernment in the dilemma created by the court of appeals' decision in this case while the Boumediene and Al Odah cases are pending before this Court. As discussed, the decision below forces the government either to engage in a massive and practically infeasible attempt to recre ate the Government Information the recorder might have reviewed under the court of appeals' decision at the risk of great harm to national security, or conduct an en masse remand of DTA cases for an additional round of CSRT proceedings in the midst of an ongoing armed conflict. Because it is possible that this Court's decision in Boumediene and Al Odah will obviate the need for either course and may require yet a third course, there is no reason to put the government to that choice while those cases are pending. Indeed, even if the Court's decision in Boumediene and Al Odah is adverse to the government and the government is required to convene new CSRT proceedings or the need for CSRT proceed ings is mooted altogether, there is no reason to require the government to undertake this extraordinary task with attendant risks to national security before it has the benefit of this Court's guidance on what procedures are required.

The unprecedented nature of the District of Colum bia Circuit's decision in this case and substantial diver gence- underscored by the 5-5 split and the five sepa rate opinions accompanying the denial of rehearing en banc-among the Judges of the District of Columbia Circuit on the scope of the record on review in DTA ac tions provides all the more reason for this Court to hold this case and delay execution of the judgment until the Court has an opportunity to consider and dispose of the case in light of its decision in Boumediene and Al Odah.

The court of appeals held that, in reviewing a CSRT determination that a detainee is an enemy combatant under the DTA, the record on review includes all reason ably available, relevant information within the posses sion of the United States government, even if the that material was not presented to or considered by the CSRT. That conception of the record on review is not only unprecedented in any administrative or judicial context, but it exceeds the constitutional requirements recognized by this Court in the ordinary criminal con text. It disregards the DTA's explicit definition of the record on review, it is contrary to Congress's clear in tent in providing limited judicial review of CSRT deter minations, and it ignores the unique wartime context in which the proceedings at issue were conducted. More over, as the heads of the Nation's intelligence agencies explained in the sworn affidavits filed in support of re hearing en banc in the court of appeals, the District of Columbia Circuit's decision in this case imposes extraor dinary burdens on the intelligence community and, if followed, would present a grave risk to national security.

Petitions under the DTA have already been filed on behalf of more than 180 detainees, and the court of ap peals' ruling addressing the scope of the "record on re view" will apply to each of them. To comply with the court of appeals' conception of the record on review, the government would be required to divert a significant portion of its intelligence, law enforcement, and military resources to either creating new "records" for DTA liti gation or to conducting entirely new CSRT hearings for those detainees. As the leaders of the intelligence com munity have attested, and as several members of the court of appeals recognized in opinions dissenting from the denial of rehearing, that diversion of resources from critical national security duties during ongoing armed conflict threatens national security.

Because this case raises a question of great signifi cance to our Nation's security in a time of war, and be cause the court of appeals' decision is fundamentally flawed, this case warrants plenary review in its own right. However, because the question presented by this case is interconnected with the Boumediene and Al Odah cases currently pending before the Court, the better course would be for this Court to hold this case pending the disposition of Boumediene and Al Odah. In the alternative, this Court should grant the petition and set this case for briefing and oral argument on an expe dited schedule, so that the case may be considered this Term along with Boumediene and Al Odah.2

A. The Question Presented By This Case Is Intertwined With The Threshold Questions The Court Is Now Con sidering In Boumediene And Al Odah

In Boumediene and Al Odah, this Court is currently considering a variety of constitutional and statutory challenges to the restrictions on judicial review Con gress enacted in the DTA and MCA. In particular, this Court is reviewing the court of appeals' holding in those cases that the DTA is the only means by which Guan tanamo Bay detainees may challenge their detention as enemy combatants in federal court and considering the detainees' constitutional challenges to the adequacy of judicial review under the DTA. Pet. at i, Boumediene v. Bush, No. 06-1195 (argued Dec. 5, 2007); Pet. at i, Al Odah v. United States, No. 06-1196 (argued Dec. 5, 2007); see also Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert. granted, 127 S. Ct. 3078 (2007).

The scope of the record on review in DTA actions is an important incident of the DTA and MCA scheme be fore the Court in Boumediene and Al Odah, and would figure prominently in any decision reaching the question of the adequacy of the DTA procedures as a substitute for habeas. Indeed, in denying rehearing en banc in this case, several members of the court of appeals expressly recognized the relationship between this case and the questions presented in Boumediene and Al Odah. See App., infra, 82a (Ginsburg, J., concurring in denial of rehearing en banc); id. at 83a (Garland, J., concurring in denial of rehearing en banc); id. at 89a n.6 (Henderson, J., dissenting from denial of rehearing en banc); id. at 96a (Randolph, J., dissenting from denial of rehearing en banc).

Moreover, this Court itself recognized that the ques tion in this case is interrelated with Boumediene and Al Odah when it granted certiorari in those cases by taking the unusual step of asking the parties to file supplemen tal briefs in Boumediene and Al Odah once the court of appeals issued its decision in this case. See Boume diene, 127 S. Ct. 3078.3 And the outcome in this case may be directly affected by the Court's decision in Bou mediene and Al Odah.

If, for example, this Court in Boumediene and Al Odah reaches the question of whether the DTA proce dures are an adequate substitute for the review provided by common-law habeas corpus, the Court may have oc casion to address the scope of DTA review, perhaps in cluding the record on review, directly. For example, the Court may interpret the provisions addressing DTA review in order to avoid any constitutional difficulties or grave doubts. If, on the other hand, this Court deter mines that detainees do not have Suspension Clause rights, it would not need to consider the adequacy of the DTA procedures directly. Nonetheless, that decision would only underscore the importance of the question presented in this petition. The Court could decide to either grant plenary review at that juncture or permit the court of appeals to revisit its ruling on the scope of the record for judicial review in light of the Court's ex planation of what rights (if any) detainees have to judi cial review.

In all events, this Court's resolution of the question of what constitutional rights, if any, detainees at Guan tanamo Bay possess-a key issue in Boumediene and Al Odah-will necessarily inform the scope and nature of the court of appeals' review under the DTA, for the DTA specifically instructs the court to review, "to the extent the Constitution and laws of the United States are appli cable," whether CSRT "standards and procedures" are "consistent with the Constitution and laws of the United States." DTA § 1005(e)(2), 119 Stat. 2742. Thus, this Court's resolution of the issues in Boumediene and Al Odah will have a material effect on the question pre sented in this case, and the government should not be required to expend the extraordinary resources re quired to comply with the court of appeals' decision until this Court has resolved Boumediene and Al Odah.

That is particularly true if the government is forced to follow the court of appeals' suggested recourse of vol untary remands in the likely event that it cannot comply with the decision's extraordinary record production- and, indeed, recreation-demands. Reconvening those CSRTs would impose extraordinary demands on the military in the midst of an ongoing armed conflict. And the entire exercise may be rendered either pointless or misdirected in relatively short order depending on the Court's resolution of Boumediene and Al Odah. Be cause it is possible that this Court's decision in Boume diene and Al Odah may call for additional changes to the CSRT rules, there is no reason for this Court to require the military to embark down the path of new CSRTs until, at a minimum, it has further guidance from this Court.

Accordingly, the Court should hold this petition pending Boumediene and Al Odah and dispose of it in accordance with the Court's decision in those cases. In the alternative, if this Court would prefer to resolve the questions presented in Boumediene and Al Odah together with the question presented in this case re garding the scope of the record on review in a DTA case, the Court should grant the petition and set this case for expedited briefing and argument, so that it may be con sidered with Boumediene and Al Odah this Term. The government has proposed an expedited briefing and ar gument schedule in the accompanying motion for expe dited consideration of this petition.

B. The Court Of Appeals Committed Serious Legal Error

The court of appeals' definition of the record on re view is contrary to well-settled principles of judicial re view, to CSRT procedures, to Congress's intent in enact ing the DTA, and to the decision of a plurality of this Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).

1. It is a fundamental principle of judicial review that the record on review is generally limited to the ma terials presented to the initial decisionmaker. In the administrative agency context, for example, the court's "reviewing function is * * * ordinarily limited to con sideration of the decision of the agency or court below and of the evidence on which it was based." United States v. Carlo Bianchi & Co., 373 U.S. 709, 714-715 (1963) (emphasis added). As this Court recognized in Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985), the "fundamental principle[] of judicial review of agency action" is that "[t]he focal point for judicial re view should be the administrative record already in exis tence, not some new record made initially in the review ing court." Id. at 743 (internal quotation marks omitted). That is because it is the task of a reviewing court to con sider the correctness of the decisionmaker's ruling based on the record before it, not based on some theo retical record that could have been compiled. Accord ingly, a reviewing court generally has "no license to 'cre ate' a record consisting of more than the agency itself had before it." App., infra, 86a (Henderson, J., dissent ing from denial of rehearing en banc) (citing cases).

That well-settled principle is embodied in the statute governing administrative agency actions, 28 U.S.C. 2112(b) which applies by its plain terms to this case. Section 2112(b) provides that the "record to be filed in the court of appeals" on a judicial review of an adminis trative agency action "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 pro ceedings before the agency, board, commission, or offi cer concerned." An "agency," in turn, is defined to in clude "any department, independent establishment, commission, administration, authority, board or bureau of the United States," 28 U.S.C. 451. Federal Rule of Appellate Procedure 16(a), which implements Section 2112(b), states the same rule. Those provisions alone make "crystal clear" that the record on review of a CSRT determination "does not include information never presented to the [CSRT]." App., infra, 91a (Randolph, J., dissenting from denial of rehearing en banc).

The court of appeals held that the record for the court's review of a CSRT hearing consists of all Govern ment Information, including information not actually presented to the tribunal. App., infra, 38a, 58a. That holding has no precedent in any administrative or judi cial context, much less in the extraordinary military and national security context in which this case arises. In deed, the court of appeals recognized as much, dismiss ing as "irrelevant" the government's analogies to admin istrative agency review, Geneva Convention proceed ings, and criminal proceedings, on the ground that the judicial review authorized by the DTA is sui generis. Id. at 59a-63a. But to the extent that the context of DTA review is unique, it hardly calls for a more demanding record with greater risk to classified information than in any other context.

2. The court of appeals' construction of the Depart ment of Defense procedures governing CSRTs is funda mentally flawed. Those procedures reflect the long- standing principle that the record on review is limited to the evidence presented to the tribunal. CSRT proce dures distinguish between "Government Information" -all of the "reasonably available information in the pos session of the U.S. Government bearing on" the question whether a detainee is an enemy combatant, App., infra, 129a-and "Government Evidence"-the evidence that the recorder presents to the CSRT to support the de tainee's classification as an enemy combatant, id. at 138a-and make clear that the "record" consists only of the latter.

Indeed, CSRT procedures specifically define the re cord of proceedings as the evidence submitted to the tribunal by the recorder and the detainee, the tribunal's ruling, and the audio file of proceedings. App., infra, 140a-141a. After a CSRT hearing, the recorder compiles that record and provides it to the detainee's personal representative, who may "submit, as appropriate, obser vations or information that he/she believes was pre sented to the Tribunal and is not included or accurately reflected on the record." Id. at 147a. That record is then submitted to the presiding officer of the tribunal for certification, after which that "completed record is considered the official record of the Tribunal's decision." Ibid. That official record is used by the CSRT Legal Advisor and CSRT Director to review the legal suffi ciency review of all CSRT rulings before those rulings become final. Id. at 141a-142a. And that record like wise should be utilized in judicial review under the DTA, consistent with the traditional rule regarding the con tent of the record on judicial review.

The text of the DTA and the context in which it was enacted reinforce that the record in a DTA case is lim ited to the evidence actually presented to a CSRT, i.e., the Government Evidence and the detainee's evidence. When Congress enacted the DTA, it was well aware of the existing CSRT procedures, including the definition of the record of the proceedings. App., infra, 141a. And Congress authorized only a narrow form of review under the DTA, permitting the court of appeals to review a "final decision" of a CSRT only to ensure (1) that it was "consistent with the standards and procedures specified by the Secretary of Defense," "including the require ment that the conclusion of the Tribunal be supported by a preponderance of the evidence," and (2) that, "to the extent the Constitution and laws of the United States are applicable," the "standards and procedures [used] to make the determination is consistent with the Constitution and laws of the United States." DTA § 1005(e)(2), 119 Stat. 2742. That narrow review indi cates that Congress did not intend far-reaching judicial review, particularly judicial review that would go be yond any known administrative or judicial context. In stead, it indicates that Congress intended the court of appeals to ensure that the Department of Defense fol lowed its own rules and had sufficient evidence on the record before it to find that a detainee is an enemy com batant.

Moreover, the legislative history of the DTA makes clear that Congress was attempting to narrow the scope of review of detainees' claims, not invite a wide-ranging inquiry into materials that were not even presented to the CSRTs. See, e.g., 152 Cong. Rec. S10,403 (daily ed. Sept. 28, 2006) (statement of Sen. Cornyn) (DTA "sub stitute[s] the blizzard of litigation instigated by Rasul v. Bush with a narrow DC Circuit-only review of the Com batant Status Review Tribunal-CSRT-hearings," which is "by design" because "[c]ourts of appeals do not hold evidentiary hearings or otherwise take in evidence outside of the administrative record"); id. at S10,268 (daily ed. Sept. 27, 2006) (statement of Sen. Kyl) (the "DTA does not allow re-examination of the facts under lying a * * * detention, and it limits the review to the administrative record").

Nothing in the Constitution, the DTA's text, or his torical precedent calls for imposing a different and expo nentially more intrusive record production regime in the context of status determinations of foreign nationals held by the military abroad as enemy combatants. To the contrary, one of the motivating principles of the DTA was that the unique circumstances of wartime detentions called for rules that provided a fair process but also were responsive to the extraordinary demands faced by the military in the midst of an ongoing armed conflict. It is inconceivable that as Congress sought to displace traditional habeas review it intended to impose a record review regime far more extensive than any pro duction requirement found in a criminal proceeding or in habeas.

3. The court of appeals proffered two justifications for its ruling, neither of which is correct. First, the court stated that it cannot determine whether the re corder withheld any potentially exculpatory evidence, in violation of CSRT procedures, without being able to ex amine for itself all relevant, reasonably available infor mation in the government's possession. App., infra, 11a- 16a. That explanation incorrectly conflates two distinct issues: (1) what constitutes the administrative record in a DTA case and (2) what is the appropriate process and remedy (if any) in the event a detainee alleges that the Department of Defense failed to comply with its own rules requiring inclusion of exculpatory evidence in the administrative record. Although the DTA permits the court of appeals to consider a detainee's claim that the Department of Defense did not follow its own proce dures, it does not follow that the ability to bring such a challenge automatically expands the record in the man ner envisioned by the court of appeals.

There is no need to disturb ordinary conceptions of record review to ensure that exculpatory information is not improperly withheld. Consistent with the Depart ment of Defense's own rules, in conducting CSRTs, the Department has always sought in good faith to provide Tribunals with any pertinent reasonably available infor mation of which it is aware that a detainee is not an en emy combatant (i.e., "exculpatory information"). The government has no interest in detaining individuals who are not enemy combatants. In addition, when the De partment subsequently becomes aware that previously undisclosed exculpatory information exists, the Depart ment will advise the court of appeals and submit the in formation for review under the Secretary's rules govern ing consideration of new evidence. See App., infra, 176a-181a.

The court of appeals, however, erroneously conflated the concept of record on review with the Department's efforts to identify information that a detainee is not an enemy combatant. Indeed, even in the domestic crimi nal context where the Due Process Clause applies and requires the prosecution to provide exculpatory informa tion to the defendant, see Brady v. Maryland, 373 U.S. 83 (1963), "[t]here is no general constitutional right to discovery," Weatherford v. Bursey, 429 U.S. 545, 559 (1977), and there is no requirement that the prosecution open up its files so a court or defendant may evaluate whether the prosecution has produced the evidence re quired by rule, statute, or the Constitution. See 18 U.S.C. 3500 (Jencks Act); Fed. R. Crim. P. 16(a).

Instead, the Constitution generally presumes that the government furnishes exculpatory evidence as part of the criminal justice process, and there is no standing obligation that the prosecution turn over "the Common wealth's files." Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987). There certainly is no free-standing requirement in the criminal context-like the court imposed here- that the government turn over all information in its files so that the courts can determine what should be pro duced to the defendant. That is true even if the defen dant is a United States citizen, who possesses full consti tutional rights. Cf. U.S. Br. at 14-25, Boumediene v. Bush and Al Odah v. United States, Nos. 06-1195 & 06- 1196 (argued Dec. 5, 2007) (arguing that Guantanamo Bay detainees lack Suspension Clause rights). Yet, in such circumstances, the courts are fully able to conduct the necessary judicial review. App., infra, 85a (Hender son, J., dissenting from denial of rehearing en banc).

The court of appeals' second rationale is that produc tion of all Government Information was necessary for the Court to "consider whether a preponderance of the evidence supports the Tribunal's status determination." App., infra, 14a-15a. That reasoning, too, is mistaken, because it is well-settled that the "preponderance of the evidence" standard refers to the evidence presented to the court, not to some other set of information. See, e.g., Gould v. United States, 160 F.3d 1194, 1197 (8th Cir. 1998); see also, e.g., 1 Christopher B. Mueller & Laird C, Kirkpatrick, Federal Evidence § 65, at 319-320 (2d ed. 1994). Again, the court of appeals has confused two sep arate concepts-whether the government has met its burden of proof on the relevant record and the scope of the record itself. See App., infra, 14a-15a. The court of appeals is well able to determine whether a detainee's designation as an enemy combatant is supported by a preponderance of the evidence based on the record be fore the CSRT, just as reviewing courts routinely judge the sufficiency of a party's evidence based on the materi als actually presented to the decisionmaker.

The fact that some detainees may wish to raise pro cedural challenges to the Defense Department's compli ance with its procedures for compiling the administra tive record or question the sufficiency of the evidence does not distinguish this context from other cases filed under 28 U.S.C. 2112(b) and Rule 16(a) of the Federal Rules of Appellate Procedure. Under those rules, when a party challenging an agency order argues that mate rial was improperly excluded from the record, the court considers the challenger's claims and the evidence he produced in support, NRDC v. Train, 519 F.2d 287, 291- 292 (D.C. Cir. 1975), and the court may determine, based upon that submission, "such additional explanations of the reasons for the agency decision as may prove neces sary," Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981). In the DTA context, as in the administrative context generally, "if the reviewing court simply cannot evaluate the challenged agency ac tion on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation," Florida Power & Light, 470 U.S. at 744, rather than automatically transform the record from that considered by the agency into some broader, amorphous class of material that the agency did not consider.

4. The court of appeals' decision in this case also is at odds with the decision of a plurality of this Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The Hamdi plurality addressed the process due an American citizen detained as an enemy combatant in the United States. In doing so, the plurality expressly approved of the pro cess under Army Regulation 190-8, which is used to de termine the status of enemy detainees under the Geneva Convention. Id. at 538. In addition, the plurality re jected "extensive discovery of various military affairs" and anything "approach[ing] the process that accompa nies a criminal trial," id. at 528; see also id. at 538; In re Yamashita, 327 U.S. 1, 17 (1946). In particular, the plu rality rejected the procedure ordered by the district court in Hamdi, which envisioned the government turn ing over all of the raw materials in its file relevant to the determination that Hamdi was an enemy combatant. 542 U.S. at 513-514, 532-533. The parallels between the discovery ordered in Hamdi-and rejected by this Court-and the record envisioned by the decision below are striking. Indeed, the court of appeals' decision in this case categorically imposes on the military-with respect to foreign nationals held abroad-record pro duction demands that far exceed those invalidated by the plurality under the Due Process Clause with respect to the citizen enemy combatant in Hamdi.

C. The Question Presented Is Exceptionally Important

As the court of appeals itself acknowledged, the rec ord-production requirements mandated by the decision below would require the government to divert limited resources from an ongoing armed conflict for use in ei ther attempting to recreate new "records" for each de tainee's case or convening new CSRTs for each detainee. In fact, the leaders of our Nation's intelligence commu nity filed detailed declarations with the court of appeals explaining both the government's difficulty with comply ing with the court's holding and the harms to national security that likely will result if the government at tempts to comply. See App., infra, 182a-214a. The ex traordinary importance of the question presented coun sels in favor of holding this case for Boumediene and Al Odah or granting the petition and setting it for expe dited review.

1. Creation of the "record," as defined by the court below, would be a monumental undertaking for the gov ernment. As the court of appeals acknowledged, the government does not possess a file of materials reviewed by each CSRT recorder for each detainee, and its "fail ure" to create such a file is completely understandable. See App., infra, 61a-62a & n.4. Beyond two comprehen sive databases most commonly used to compile material on detainees, see pp. 4-5, supra, there were any number of other sources, from any number of government agen cies, that recorders could consult in search of potentially relevant material. Because there is no record of where each particular recorder looked, recompiling the record would entail a massive undertaking of identifying any potentially relevant material in the possession of all of those agencies in each DTA case. App., infra, 216a- 218a.

In an effort to comply with the decision of the court of appeals, the government has, for a limited set of cas es, assessed the effort required to create new "records" for all CSRT determinations. App., infra, 217a-222a. After expending hundreds of man-hours on this effort, the government has concluded that it would be an ex traordinary undertaking, and a massive diversion of in telligence, law enforcement and military resources, for the government to recreate the Government Informa tion in all of the approximately 180 pending DTA cases. See App., infra, 192a-195a; id. at 218a, 222a-223a. And, after collecting that information, the government would be required to review line-by-line all relevant classified information before producing it to the court of appeals and to counsel for the detainee. Id. at 188a; id. at 195a. Those tasks would divert vital intelligence analysts from their duties for a lengthy period of time (most likely years). Id. at 219a-220a, 223a.

2. In addition to requiring significant expenditure of government resources, the production of materials re quired by the decision below would pose a grave threat to national security. The heads of the intelligence agen cies each filed declarations with the court of appeals detailing those security risks, see App., infra, 182a-214a, and several judges on the court of appeals noted those risks as well, see id. at 88a (Henderson, J., dissenting from denial of rehearing en banc); id. at 95a-96a (Ran dolph, J., dissenting from denial of hearing en banc).

The material that the government would be required to disclose as part of the "record" likely would include highly sensitive classified material, including material from foreign intelligence sources and "a vast number of the CIA's most sensitive classified documents on coun terterrorism intelligence and operations." App., infra, 184a. Although, under the court of appeals' protective order, that material would be provided only to the de tainee's counsel and the court of appeals, that disclosure could still seriously disrupt the Nation's intelligence gathering programs and cause "exceptionally grave damage to the national security." Id. at 187a; accord id. at 211a; id. at 205a-206a. That is because the required disclosure of sensitive information, even if no material is ever inadvertently disclosed beyond counsel and the court, will make foreign governments and human sour ces less likely to cooperate in the United States' intelli gence gathering in the future.

As the Director of the Central Intelligence Agency explained, compliance with the court of appeals' decision would require disclosure of material derived from or provided by foreign intelligence services or sensitive human sources, often pursuant to "assurances of confi dentiality," and when that material is disclosed, there will be "a high probability that" those sources "will de crease their cooperation" in the future, impairing our ability to gather intelligence. App., infra, 186a-187a. Further, he explained that unauthorized disclosures (beyond disclosures to counsel and to the court of ap peals) are "inevitable," and such disclosures would "evis cerate the U.S. Government's carefully conceived plan to keep its most highly sensitive information compart mentalized." Id. at 188a; see also id. at 196a (discussing similar risks).

The Director of the National Security Agency like wise stated that the decision below "create[s] a very real danger of disclosure (intentional or inadvertent) of sen sitive intelligence information, to include sources and methods of collection." App., infra, 203a-204a (citing 50 U.S.C. 402 note). And the Director of National Intelli gence confirmed that the decision below "risk[s] public disclosure of classified intelligence information, sources, and methods, thereby enabling adversaries of the United States to avoid detection by the U.S. Intelligence Community and/or take measures to defeat or neutralize U.S. intelligence collection." Id. at 211a.

3. The court of appeals' response to the extraordi nary burdens and national security risks created by its decision was to place the government on the horns of a dilemma: either attempt to recreate the Government Information the recorder might have viewed or conduct a new CSRT hearing for each detainee. App., infra, 62a- 63a. As discussed, the former option is virtually infeasi ble. And the latter option is equally problematic, if not more so, and would make no sense as a short-term op tion in light of the likelihood that this Court will provide further guidance in Boumediene and Al Odah. That option would require, in the midst of an ongoing armed conflict, the commitment of massive resources to redo up to 275 CSRTs (i.e., for the 180 DTA petitioners and the other Guantanamo Bay detainees, if they also seek DTA review). In addition to consuming a massive am ount of time and resources, conducting new CSRTs for hundreds of detainees would inevitably delay the detain ees' ability to seek federal court review of their enemy combatant status, thereby hampering the system of re view established by Congress in the DTA. And all of that effort may go for naught depending on how this Court resolves Boumediene and Al Odah. At a mini mum, the government should not be required to bear that unprecedented burden until the Court has disposed of this case in accordance with its decision in Boume diene and Al Odah.

CONCLUSION

The petition for a writ of certiorari should be held pending this Court's decision in Boumediene v. Bush and Al Odah v. United States. Once those cases have been decided, the petition should be disposed of as ap propriate in light of that decision.

In the alternative, the petition should be granted and this case should be set for expedited briefing and oral argument, so that the case may be decided this Term.

Respectfully submitted.

 

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
JONATHAN F. COHN
Deputy Assistant Attorney
General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
DOUGLAS N. LETTER
ROBERT M. LOEB
AUGUST E. FLENTJE
CATHERINE Y. HANCOCK
JENNIFER PAISNER
Attorneys

 

FEBRUARY 2008

1 The unclassified versions of the documents are included in the appendix to this petition. The government will submit the classified versions to this Court if requested.

2 If the Court decides to grant plenary review and consider this case on the merits this Term, the government has proposed an expedited schedule for briefing and oral argument in its accompanying motion for expedited consideration of this petition.

3 Because the initial panel decision was issued before the merits briefing had concluded in Boumediene and Al Odah, the parties were able to address that decision in their merits briefs in those cases. In the meantime, as explained below, the government sought expedited rehearing in Bismullah. Because that petition was pending when the government filed its merits brief in Boumediene and Al Odah, and particularly given the page constraints for that brief, the government's discussion of Bismullah in that brief was not extensive.

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

 

 

 

Nos. 06-1197, 06-1397

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

 

HUZAIFA PARHAT, ET AL., PETITIONERS

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL., RESPONDENTS

 

Argued: May 15, 2007

Decided: July 20, 2007

As Amended: Oct. 23, 2007

 

OPINION

 

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 Sta tion at Guantánamo Bay, Cuba. Each petitioner seeks review of the determination by a Combatant Status Re view Tribunal (CSRT or Tribunal) that he is an "enemy combatant." In this opinion we address the various pro cedural motions the parties have filed to govern our re view of the merits of the detainees' petitions. The peti tioners 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 peti tioners move to compel discovery and for the appoint ment 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 deter mination.

In order to review a Tribunal's determination that, based 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 reason ably available information in the possession of the U.S. Government bearing on the issue of whether the de tainee meets the criteria to be designated as an enemy combatant," which includes any information presented to the Tribunal by the detainee or his Personal Repre sentative.

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 adop ting a presumption, as proposed by the petitioners, that counsel for a detainee has a "need to know" the classi fied 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 Govern ment may inspect correspondence from counsel to a de tainee, including "legal mail," and redact anything that does not pertain to the events leading up to the de tainee'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. Fi nally, the protective order will provide that a lawyer offering his or her services may, as the petitioners pro pose, 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.

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 join ing 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 pro cedures for the conduct of CSRT proceedings with re spect to foreign nationals held at Guantánamo to "review the detainee's status as an enemy combatant." The Sec retary of the Navy, who was "appointed to operate and oversee [the CSRT] process," promptly issued a memo randum specifying detailed procedures (Navy Memoran dum), which are still in effect.1

Pursuant to those procedures, a CSRT reviews the determination, made after "multiple levels of review by military officers and officials of the Department of De fense," (E-1 § B) that a detainee is an "enemy combat ant," defined as "an individual who was part of or sup porting 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 com posed of "three neutral commissioned officers" who were not involved in the "apprehension, detention, inter rogation, or previous determination of status of the de tainee[]." (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 Evi dence, defined as "such evidence in the Government In formation 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 govern ment agencies and reviewing all such Government Infor mation (E-2 § C(1)). The Recorder must present, orally or in documentary form (E-2 § C(6)), both the Govern ment 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 Repre sentative, 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 Representa tive may not, however, share classified information with the detainee. (E-3 § C(4)) The Personal Representative "shall present information to the Tribunal if the de tainee so requests" and "may, outside the presence of the detainee, comment upon classified information sub mitted 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 ques tions. (E-1 § F(6)-(7)) He also may present the testi mony of any witness who is "reasonably available and whose testimony is considered by the Tribunal to be rel evant." (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,2 which is accompanied by (a) the classified and unclassified re ports 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 pre pared by the Recorder of each witness's testimony; and (4) the summary report written by any dissenting mem ber 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, pro cedural, and like matters. (E-1 § C(4)) The Legal Advi sor reviews for legal sufficiency both the CSRT's rulings on whether witnesses and evidence are reasonably avail able and its ultimate determination of the detainee's status. (E-1 § I(7)) The Legal Advisor forwards the Re cord 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))

 

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 Ap peals 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 Com batant 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 (includ ing 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 de termination 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 Jan uary 2006, after the DTA was enacted, some detainees, including the petitioners, filed in this court petitions seeking both review of a status determination by 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 juris diction over habeas petitions filed by or on behalf of "an alien detained by the United States who has been deter mined by the United States to have been properly de tained as an enemy combatant or is awaiting such deter mination." MCA § 7(a), 28 U.S.C. § 2241(e)(1). Mean while, 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, -U.S. -, 127 S. Ct. 1478, 167 L. Ed. 2d 578, cert. granted, -U.S. -, 127 S. Ct. 3078, ___ L. Ed. 2d ___ (2007). In that case we held that, because the common law writ of "ha beas 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 petition ers filed motions to (1) enter the protective order previ ously 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 evi dence as was not presented to the CSRT; and (3) appoint a special master to hold hearings and make factual find ings, as necessary to address disputes arising from the proposed protective and discovery orders. In his motion to compel discovery, Bismullah also seeks counsel access to (1) the Record of Proceedings (classified and unclassi fied) 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, memo randa and correspondence of the Tribunal members, Recorder, Personal Representative, or other person who participated in Bismullah's CSRT"; and (5) other "rea sonably available documents or information in the pos session 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 Peti tioners seek counsel access to (1) the CSRT records (classified and unclassified) for all seven Parhat Peti tioners 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 Gov ernment'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 Turki- stan Islamic Movement, which the Government desig nated 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 Peti tioners allege, in apparent anticipation of the Govern ment Evidence, they have no affiliation.

For its part, the Government moves the court to en ter a substantially revised version of the protective or der entered by the district court (Government's Pro posed 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 Gov ernment also proposes the court treat the petition filed by the seven Parhat Petitioners as seven separate peti tions.

II. Analysis

The parties fundamentally disagree about what con stitutes 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 Gov ernment proposes a substantially different order.

A. The Record

The petitioners argue the court must look beyond the Record of Proceedings and consider all evidence reason ably available to the Government, which may include evidence neither the Recorder nor the detainee's Per sonal Representative nor the detainee put before the CSRT. In addition, they point out that many of the pro cedures 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 poten tially 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 Tri bunal 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 en emy combatants. Finally, the petitioners contend that, even if the court does not review the Government's com pliance 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 doc uments which [were] properly part of the administrative record had been withheld." Thus, the petitioners con tend 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 Proceed ings, as compiled by the Recorder. According to the Government, the plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 538, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (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 Com batant 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 suf ficient 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 Rep resentative's communication to the detainee is largely scripted, leaving no need to produce "[his] notes, memo randa and correspondence"; and the actions of the Re corder, 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.

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 Tri bunal 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 sub set of the Government Information presented to the Tri bunal 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 pre sumption of regularity, as the Government main tains-but which is not at all clear because a CSRT does not have the transparent features of the ordinary admin istrative 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,3 see, e.g., NRDC v. SEC, 606 F.2d 1031, 1049 n.23 (D.C. Cir. 1979) (listing meth ods 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 determina tion 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 denomi nator.

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 discov ery, without prejudice to renewal, because they have not made a showing sufficient to justify compelling discov ery at this stage of these proceedings. First, the peti tioners do not need discovery in order to challenge a CSRT's ruling that a requested witness or item of evi dence was not "reasonably available"; as the Govern ment points out, that ruling must be made on the record, which should be sufficient to determine whether the Tri bunal acted in accordance with the specified procedures. Nor does a detainee petitioner need information regard ing 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 "de termine 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 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 capri cious because, to use the petitioners' example, it is in consistent with the status determination of another de tainee 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 Representa tive-supports the Tribunal's finding, then the Tribu nal's status determination must be upheld, provided, of course, the determination was otherwise made in accor dance 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 en ter a protective order resolving the points in contention between the parties in such a way as to ensure the par ties 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 oppor tunity for the parties to suggest changes, will be the or der proposed by the Government, as modified to con form to this opinion.

1. Counsel Access to Classified Information

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 peti tioners' 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 de tainee, highly sensitive information, and information pertaining to a highly sensitive source. Such highly sen sitive information, which the Government represents will rarely be found and redacted, would be made avail able to the court ex parte and in camera in the event the detainee seeks judicial review of his status determina tion.

Petitioners' counsel, each of whom has a security clearance, contend they have a "need to know" all infor mation about their clients' cases and related cases in order effectively to participate in the adversarial pro cess of review in court. Petitioners argue that ex parte and in camera review of highly sensitive classified infor mation, 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 com ply 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 responsi bility to determine whether a preponderance of the evi dence 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. Coun sel 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 con cerning his client, not just the portions of the Govern ment Information presented to the Tribunal.

That presumption is overcome to the extent the Gov ernment seeks to withhold from counsel highly sensitive information, or information pertaining to a highly sensi tive source or to anyone other than the detainee but presents such evidence to the court ex parte and in cam era. Therefore, as required in the Status Quo Order, ex cept for good cause shown, the Government shall pro vide 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 defer ence, "[i]t is within the role of the executive to acquire and exercise the expertise of protecting national secu rity. 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 re view the classification of national security information, '[w]e anticipate that in camera review of affidavits, fol lowed if necessary by further judicial inquiry, will be the norm'").

The Government also proposes unilaterally to deter mine 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 "pro tected" information "reasonably expected to increase the threat of injury or harm to any person" and informa tion already designated by the Government to be "For Official Use Only" or "Law Enforcement Sensitive."

It is the court, not the Government, that has discre tion to seal a judicial record, cf. United States v. El- Sayegh, 131 F.3d 158, 160 (D.C. Cir. 1997) ( "The deci sion 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, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). Therefore, insofar as a party seeks to file with the court nonclassified informa tion 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 sub jects properly within the scope of counsel's representa tion. The parties do not disagree about the rules gov erning 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 com posed of Department of Defense personnel would open an envelope labeled as legal mail and addressed to a de tainee. 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, any thing 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-

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 Govern ment'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 coun try that are not directly related to counsel's repre sentation of that detainee.

Because their counsel have never breached this provi sion, 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 op erations in Iraq, terrorist attacks, Hezbollah's attack upon Israel, and the abuse at Abu Ghraib prison. The Government asserts such information can "incite detain ees to violence" or cause "unrest," such as a riot, hunger strike, or suicide-as, indeed, it has done in the past.

At the least, the petitioners contend, counsel may legitimately represent the detainees in efforts to find alternate ways of ending their detention, including dip lomatic means, and therefore must be able to correspond with the detainees regarding such alternatives; for ex ample, they might want to correspond concerning which countries are suitable for seeking asylum. Using nonle gal 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 obser vance of law and the administration of justice," Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S. Ct. 2081, 141 L. Ed. 2d 379 (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 Con gress. Regrettably, however, we cannot disagree with the Government that past breaches of the Status Quo Order by some counsel for detainees justify the Govern ment'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 lim ited, 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, how ever, to limit the content of the correspondence between petitioners and their counsel to "those 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 per sonnel 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 corre spondence 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 in tervention 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 Gov ernment." 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 dis pute 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 on behalf of a de tainee. To that end, the Government proposes to allow a lawyer one visit to Guantánamo to meet with a poten tial 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 determina tion. The Government asserts the eight-hour limit is needed to prevent an "unwieldy and unworkable situa tion," 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 au thorization is "strongly [to be] preferred" because a pu tative next friend probably does not satisfy the require ments for standing. See Whitmore v. Arkansas, 495 U.S. 149, 163, 165, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (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 de tainee 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 al lowed until now under the Status Quo Order.

We conclude the requirement of the Status Quo Or der that a lawyer "provide evidence of . . . authority to represent the 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 over burden 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 coun sel-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. Har ris, Commander of the Joint Task Force-Guantánamo, the Government determined such a limitation "is no lon ger warranted." Though the Government asserts its proposed one visit/eight-hour limitation upon meetings between a lawyer and a potential client is still "warran ted and appropriate in light of the operations" at Guan tánamo, it has made no showing that a lawyer's addi tional 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 re quiring counsel to produce evidence both that a detainee authorizes counsel to act on his behalf and that he autho rizes the filing of a petition submitted by a detainee's next friend would, in effect, "eliminate next friend cas es" 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 behalf"), had codified the his toric practice of allowing a "next friend" to file a petition for habeas corpus on behalf of a prisoner. 495 U.S. at 162-63, 110 S. Ct. 1717. Therefore, when the Congress later authorized this court to review the status determi nation 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 peti tion for review of a CSRT determination when the de tainee is "unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar dis ability." Whitmore, 495 U.S. at 165, 110 S. Ct. 1717. 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 stand ing can demonstrate the detainee is under such a disabil ity. 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 fac tual findings because we have resolved the pending pro cedural disputes between the parties. We therefore deny without prejudice the petitioners' motion to ap point 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 each Parhat Petitioner's claims, we must review a separate record of that petitioner's status determination. Accordingly, each Parhat Peti tioner 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 avail able information in the possession of the U.S. Govern ment 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 mo tions for a protective order; deny without prejudice the petitioners' motions for discovery and for the appoint ment 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 ap plied 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 classifi cation 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 180, 189-90. 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 28 U.S.C. § 2241(e)(2); Op. at 189-90. 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 pos ture 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, -U.S.-, 127 S. Ct. 3078, ___ L. Ed. 2d 755 (2007), 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. Nori ega, 752 F. Supp. 1032, 1033 (S.D. Fla. 1990). Regard less, 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 187-88; see also id. at 189-90. However, noth ing in the opinion would foreclose restoration of the full attorney-client relationship were the Executive to deter mine that national security no longer requires such re strictions 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 Depart ment of Defense's CSRT procedures. See Op. at 185-86. 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 pro cedures specified by the Secretary of Defense," Op. at 180. 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 tes timony of "reasonably available" witnesses, he must de velop this rebuttal without knowledge of the classified information that forms the case against him. He also must do so without the benefit of counsel. Nonethe less, 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 180 (quoting Memorandum from Gordon England, Secretary of the Navy, Regard ing Implementation of CSRT Procedures for Enemy Combatants at Guantanamo Bay Naval Base, Cuba, encl. 1, § E(3) (hereinafter CSRT Procedures)); cf. Protective Order § 2.I. Thus, the initial record is limited by unilat eral 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 docu ments 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 de cided 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 ini tially asserted a curious entitlement to a "strong pre sumption of regularity" much as is received by an ad ministrative 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 185-86. Then, in a post-argument submission of June 1, 2007, offering to "assist the Court in under standing the process of developing the CSRT record," the Executive acknowledged that it has not utilized the procedure for compiling the CSRT record that the De partment 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).4 In particular, "due to the other extensive responsibilities of the Recorder," McGarrah Decl. ¶ 4, since September 1, 2004, the De partment of Defense has construed its own requirement that "the Recorder shall obtain and examine the Govern ment 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 advo cate, 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 Execu tive'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 sup ported 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 de signed as an adequate replacement for the writ of ha beas corpus, see Supplemental Br. of the Federal Par ties Addressing the Detainee Treatment Act of 2005, at 49-53, Boumediene v. Bush, 476 F.3d 981 (2007). Reve lations that evidence is summarized by an anonymous "research, collection, and coordination team," McGarrah Decl. ¶ 4, whose activities have left "some of the[ ] elec tronic files . . . corrupted," id. ¶ 16, reinforce concerns about the adequacy of actions under the DTA as a sub stitute for the writ of habeas corpus. See Boumediene, 476 F.3d at 1004-07 (Rogers, J., dissenting).

PROTECTIVE ORDER

This matter comes before the court upon the parties' motions for a protective order to prevent the unautho rized disclosure or dissemination of classified national security information and other protected information that may be reviewed by, made available to, or is other wise in the possession of, the Petitioner or Petitioner's Counsel in this case, and upon the Government's motion to amend the initial Protective Order. Pursuant to the general supervisory authority of the court, and for good cause shown,

IT IS ORDERED:

1. General Provisions

A. The court finds that this case involves classified na tional security information or documents, the stor age, handling and control of which require special security precautions, and access to which requires a security clearance and a "need to know." This case may also involve other protected information or doc uments, the storage, handling and control of which may require special precautions in order to protect the security of United States personnel and facilities, and other significant interests.

B. The purpose of this Protective Order is to establish the procedures that must be followed by a Petitioner, Petitioner's Counsel, and all other individuals who receive access to classified information or docu ments, or other protected information or documents, in connection with this case, including the Depart ment of Defense (DoD) Privilege Team.

C. The procedures set forth in this Protective Order will apply to all aspects of this case, and may be modified by further order of the court sua sponte or upon ap plication by any party. The court will retain continu ing jurisdiction to enforce or modify the terms of this Order.

D. Nothing in this Order is intended to or does preclude the use of classified information by the Government as otherwise authorized by law outside of this action under the Detainee Treatment Act.

E. Petitioner's Counsel of record is responsible for ad vising his or her partners, associates, and employees, the Petitioner, and others of the contents of this Pro tective Order, as appropriate or needed.

F. All documents marked as classified, and information contained therein, remain classified unless the docu ments bear a clear indication that they have been declassified or determined to be unclassified by the agency or department that is the original classifica tion authority of the document or of the information contained therein.

G. Any violation of this Protective Order may result in a sanction for contempt.

2. Designation of Court Security Officer

The court designates Christine E. Gunning as Court Security Officer ("CSO") for these cases, and Jenni fer H. Campbell, Erin E. Hogarty, Joan B. Kennedy, Charline A. DaSilva, Nathaniel A. Johnson, Daniel O. Hartenstine, Michael P. Macisso, James P. Londer gan, Barbara J. Russell and Miguel A. Ferrer as Al ternate CSOs, for the purpose of providing security arrangements necessary to protect from unautho rized disclosure any classified documents or informa tion, or protected documents or information, to be made available in connection with these cases. Peti tioners' Counsel must seek guidance from the CSO with regard to appropriate storage, handling, trans mittal, and use of classified documents or informa tion.

3. Definitions

A. "Detainee" means an alien detained by the DoD as an alleged enemy combatant at the U.S. Naval Base at Guantánamo Bay, Cuba.

B. "Petitioner" means a Detainee or a "next friend" act ing on his behalf.

C. "Petitioner's Counsel" includes a lawyer who is em ployed or retained by or on behalf of a Detainee for purposes of representing the Detainee in this litiga tion, as well as co-counsel, interpreters, translators, paralegals, investigators, and all other personnel or support staff employed or engaged to assist in this litigation.

D. As used herein, the words "documents" and "infor mation" include, but are not limited to, all written or printed matter of any kind, formal or informal, in cluding originals, conforming copies and non-con forming copies (whether different from the original by reason of notation made on such copies or other wise), and further include, but are not limited to:

i. papers, correspondence, memoranda, notes, let ters, reports, summaries, photographs, maps, charts, graphs, interoffice and intraoffice commu nications, notations of any sort concerning conver sations, meetings, or other communications, bulle tins, teletypes, telegrams, telefacsimiles, invoices, worksheets; and drafts, alterations, modifications, changes and amendments of any kind thereto;

ii. graphic or oral records or representations of any kind, including, but not limited to, photographs, charts, graphs, microfiche, microfilm, videotapes, sound recordings of any kind, and motion pictures;

iii. electronic, mechanical or electric records of any kind, including, but not limited to, tapes, cas settes, disks, recordings, electronic mail, films, typewriter ribbons, word processing or other com puter tapes or disks, and all manner of electronic data processing storage; and

iv. information acquired orally.

E. The terms "classified documents" and "classified in formation" refer to:

i. any document or information that has been classi fied by any Executive Branch agency in the inter ests of national security or pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders, as "CONFI DENTIAL," "SECRET," or "TOP SECRET," or additionally controlled as "SENSITIVE COM PARTMENTED INFORMATION (SCI)," or any classified information contained in such document;

ii. any document or information, regardless of its physical characteristics, now or formerly in the possession of a private party that has been derived from United States Government information that was classified, regardless of whether such docu ment or information has subsequently been classi fied by the Government pursuant to Executive Order, including Executive Order 12958, as amen ded, or its predecessor Orders, as "CONFIDEN TIAL," "SECRET," or "TOP SECRET," or addi tionally controlled as "SENSITIVE COMPART MENTED INFORMATION (SCI)";

iii. oral or nondocumentary classified information known to the Petitioner or Petitioner's Counsel; or

iv. any document or information as to which the Peti tioner or Petitioner's Counsel has been notified orally or in writing that such document or infor mation contains classified information.

F. The terms "protected documents" and "protected information" refer to any document or information deemed by the court, either upon application by the Government or sua sponte, to require special precau tions in storage, handling, and control, in order to protect the security of United States Government personnel or facilities, or other significant govern ment interests.

G. "Access to classified information" and "access to pro tected information" mean having access to, review ing, reading, learning, or otherwise coming to know in any manner any classified information or pro tected information.

F. "Communication" means all forms of communication between Petitioner's Counsel and a Detainee, includ ing oral, written, electronic, or by any other means.

I. "Legal Mail" consists only of documents and drafts of documents that are intended for filing in this ac tion and correspondence directly related to those documents that-

i. relate directly to the litigation of this action;

ii address only (a) events leading up to the capture of the Detainee on whose behalf the petition in this action was filed, (b) events occurring between such Detainee's capture and any hearing before a Combatant Status Review Tribunal (CSRT) relat ing to such Detainee, and (c) the conduct of the CSRT proceeding relating to such Detainee; and

iii. do not include any of the following information, in any form, unless directly related to the litigation of this action:

a. information relating to any ongoing or com pleted military, intelligence, security, or law en forcement operations, investigations, or arrests, or the results of such activities, by any nation or agency;

b. information relating to current political events in any country;

c. information relating to security procedures at the Guantánamo Naval Base (including names of United States Government personnel and the layout of camp facilities) or the status of other Detainees;

d. publications, articles, reports, or other such ma terial including newspaper and other media arti cles, pamphlets, brochures, and publications by nongovernmental or advocacy organizations, or any descriptions of such material.

J. The "Record on Review" means the information de fined as "Government Information" by the Secretary of the Navy in his memorandum regarding "Imple mentation of Combatant Status Review Tribunal Pro cedures" dated July 29, 2004, to wit, all "reasonably available information in the possession of the U.S. Government bearing on the issue of whether the de tainee meets the criteria to be designated as an en emy combatant."

K. "Secure area" means a physical facility accredited or approved for the storage, handling, and control of classified information.

4. Roles and Functions of the DoD Privilege Team and Special Litigation Team

A. The "DoD Privilege Team" comprises one or more DoD attorneys and one or more intelligence or law enforcement personnel. If required, the DoD Privi lege Team may include interpreters/translators. The DoD Privilege Team is charged with representing and protecting the interests of the United States Government related to security and threat informa tion. The DoD Privilege Team is authorized to re view all communications specified in this order, in cluding written communications and other materials sent from Petitioner's Counsel to the Detainee. The DoD Privilege Team may not disclose a communica tion from Petitioner's Counsel to the Detainee other than information provided in a filing with the court and served on Government counsel, unless the disclo sure of such information is authorized by this or an other order of the court or by Petitioner's Counsel.

B. The DoD Privilege Team may redact or screen out material not meeting the definition of "Legal Mail" in section 3(I) above.

C. When the DoD Privilege Team proposes to redact or screen out material sent from Petitioner's Counsel to a Detainee, Petitioner's Counsel for that Detainee must be notified.

D. In the event a dispute regarding the screening and redaction of material from legal mail sent from Peti tioner's Counsel to a Detainee cannot be resolved by the parties and Petitioner's Counsel seeks the inter vention of this court, the DoD Privilege Team may disclose the material at issue to the Commander, JTF-Guantánamo Naval Base, or his representa tives, including counsel for the Government.

E. "Special Litigation Team" is authorized to represent the DoD Privilege Team with respect to execution of its duties. The Special Litigation Team will be com posed of one or more attorneys from the Department of Justice, who may not take part or be involved in litigating the merits of this action under the De tainee Treatment Act or any other case brought by or against the Detainee.

F. The DoD Privilege Team may, through the Special Litigation Team (see § 4(H) below), inform the court of any issues or problems related to the release or processing of information related to this case.

G. The Special Litigation Team may not disclose infor mation provided by the DoD Privilege Team or any information submitted by Petitioner's Counsel to the DoD Privilege Team for review, except as provided by this Order or as permitted by Petitioner's Coun sel or by the court.

H. Petitioner's Counsel or the Special Litigation Team may submit filings to the court concerning the DoD Privilege Team or actions taken by it.

I. Until otherwise notified, potentially privileged infor mation in such filings must be submitted to the court under seal and contain a conspicuous notation as fol lows: "Submitted Under Seal-Contains Privileged Information." To maintain such information under seal, an appropriate application must be made to the court. Such information must be maintained under seal unless and until the court determines the infor mation should not be sealed. Such filings by Peti tioner's Counsel or the Special Litigation Team may not be served on counsel for respondent, except as authorized by Petitioner's Counsel or the court. With respect to a submission made under seal, a re dacted version suitable for filing in the public record must be provided. Unresolved disputes concerning such redacted versions may be presented to the court.

J. Petitioner's Counsel may not convey to a Detainee information redacted or screened by the DoD Privi lege Team or designated for such redaction or screening, absent consent from the DoD Privilege Team, the Special Litigation Team, or the Govern ment, or authorization by this court.

5. Access to Classified Information and Documents

A. Without authorization from the Government, neither Petitioner nor Petitioner's Counsel may have access to any classified information involved in this case.

B. Petitioner's Counsel is presumed to have a "need to know" all the information in the Government's pos session concerning the Detainee he represents. This presumption is overcome to the extent the Govern ment seeks to withhold from Petitioner's Counsel highly sensitive information or information concern ing a highly sensitive source that the Government presents to the court ex parte and in camera. Except for good cause shown, the Government must provide notice to Petitioner's Counsel on the same day it files such information with the court ex parte.

C. Petitioner's Counsel to be provided access to classi fied information must execute the Memorandum of Understanding ("MOU") appended to this Protective Order, file executed originals with the court, and submit copies to the CSO and counsel for the Gov ernment. The execution and submission of the MOU is a condition precedent for Petitioner's Counsel to have initial and continuing access to classified infor mation for the purposes of this proceeding.

D. The substitution, departure, or removal of Peti tioner's Counsel from these cases for any reason will not release that person from the provisions of this Protective Order or the MOU executed in connection with this Order.

E. Authorization from the Government to access classi fied information will not be granted to Petitioner's Counsel unless Petitioner's Counsel has first:

i. received the necessary security clearance as de termined by the Department of Justice;

ii. obtained either (a) written evidence of authority to represent the Detainee or (b) evidence of author ity to represent the Detainee through the De tainee's next friend; and

iii. signed the MOU attached hereto as Exhibit A, agreeing to comply with the terms of this Protec tive Order.

F. Prospective counsel for a Detainee may have up to two visits with a Detainee to obtain his authorization to seek review of the CSRT's determination of his status.

G. The substitution, departure, or removal of Petition er's Counsel from this case for any reason will not release that person from the provisions of this Pro tective Order.

H. Except as provided herein, Petitioner's Counsel may not disclose any classified or protected information to any person. Petitioner's Counsel may not disclose classified or protected information to a Detainee, un less that information was obtained in the first in stance from the Detainee.

I. disclosure of classified information includes any knowing, willful, or negligent action that could rea sonably be expected to result in a communication or physical transfer of classified information.

J. Neither Petitioner nor Petitioner's Counsel may dis close or cause to be disclosed in connection with this case any information known or believed to be classi fied except as otherwise provided herein.

K. At no time, including anytime subsequent to the con clusion of this case, may Petitioner's Counsel make any public or private statements disclosing any clas sified information made available pursuant to this Protective Order, including the fact that any such information is classified.

L. Petitioner's Counsel is required to treat all informa tion learned from a Detainee, including any oral or written communication with a Detainee, as classified information, unless and until the information is sub mitted to the DoD Privilege Team or counsel for the Government and determined to be nonclassified. All classified material must be handled, transported, and stored in a secure manner, as provided by Executive Order 12958, DOD Regulation 5200.1-R and AI 26, OSD Information Security Supplement to DOD Reg ulation 5200.1R.

M. Petitioner's Counsel or the DoD Privilege Team must disclose to Government counsel or Commander, JTF-Guantánamo Naval Base, any information learned from a Detainee involving any future event that threatens national security or is likely to involve violence. In such case, the Privilege Team must pro vide contemporaneous notice to Petitioner's Counsel and retain for Petitioner's Counsel a copy of the ma terial provided to Government counsel or Com mander, JTF-Guantánamo Naval Base.

N. Petitioner's Counsel may not disclose the contents of any classified documents or information to any per son, except those authorized pursuant to this Protec tive Order, the court, and counsel for the Govern ment with the appropriate clearances and the need to know that information.

O. In the event that classified information enters the public domain, counsel is not precluded from making private or public statements about the information already in the public domain, but only where the statements are not subject to the limitation set forth below. Counsel may not make any public or private statements revealing personal knowledge from non- public sources regarding the classified or protected status of the information or disclosing that counsel had personal access to classified or protected infor mation confirming, contradicting, or otherwise relat ing to the information already in the public domain. In an abundance of caution and to help ensure clarity on this matter, the court emphasizes that counsel must not be the source of any classified or protected information entering the public domain.

P. The foregoing does not prohibit Petitioner's Counsel from citing or repeating information in the public domain that Petitioner's Counsel does not know or have reason to believe to be classified information or a classified document, or derived from classified in formation or a classified document.

 

6. Secure Storage of Classified Information

A. The CSO will arrange for one appropriately secure area for the use of Petitioner's Counsel. The secure area must contain a working area that will be sup plied with secure office equipment reasonable and necessary to the preparation of the Petitioner's case. Expenses for the secure area and its equipment will be borne by the Government.

B. The CSO will establish procedures to ensure that the secure area is accessible to Petitioner's Counsel dur ing normal business hours and at other times on rea sonable request as approved by the CSO. The CSO will establish procedures to ensure that the secure area may be maintained and operated in the most efficient manner consistent with the protection of classified information. The CSO or CSO designee may place reasonable and necessary restrictions on the schedule of use of the secure area in order to ac commodate appropriate access to all Petitioners' Counsel in this and other proceedings.

C. All classified information provided by the Govern ment to Petitioner's Counsel, and all classified infor mation otherwise possessed or maintained by Peti tioner's Counsel, must be stored, maintained, and used only in the secure area.

D. No documents containing classified information may be removed from the secure area unless authorized by the CSO or CSO designee supervising the area.

E. Consistent with other provisions of this Protective Order, Petitioner's Counsel will have access to the classified information made available to him or her in the secure area and be allowed to take notes and pre pare documents with respect to those materials.

F. Petitioner's Counsel may not copy or reproduce any classified information in any form, except with the approval of the CSO or in accordance with the proce dures established by the CSO for the operation of the secure area.

G. All documents prepared by Petitioner's Counsel that do or may contain classified information (including without limitation notes taken and memoranda pre pared by counsel and pleadings and other documents intended for filing with the court) must be tran scribed, recorded, typed, duplicated, copied, and oth erwise prepared only by persons who have received an appropriate approval for access to classified infor mation. Such activities must take place in the secure area on approved word processing equipment and in accordance with the procedures approved by the CSO. All such documents and any associated materi als containing classified information (such as notes, memoranda, drafts, copies, typewriter ribbons, mag netic recordings, exhibits) must be maintained in the secure area unless and until the CSO advises that those documents or associated materials are unclas sified in their entirety. None of these materials may be disclosed to counsel for the Government unless authorized by the court, by Petitioner's Counsel, or as otherwise provided in this Protective Order.

H. Petitioner's Counsel may discuss classified informa tion only within the secure area or in another area authorized by the CSO, may not discuss classified information over any standard commercial telephone instrument or office intercommunication system, and may not transmit or discuss classified information in electronic mail communications of any kind.

I. The CSO or CSO designee may not reveal to any per son the content of any conversations she or he may hear by or among Petitioners' Counsel, nor reveal the nature of documents being reviewed by them, or the work generated by them, except as necessary to report violations of this Protective Order to the court or to carry out their duties pursuant to this Order. In addition, the presence of the CSO or CSO designee will not operate as a waiver of, limit, or oth erwise render inapplicable the attorney-client privi lege or work product protections.

J. All documents containing classified information pre pared, possessed or maintained by, or provided to, Petitioner's Counsel (except filings submitted to the court and served on counsel for the Government), must remain at all times in the control of the CSO for the duration of these cases.

K. As stated in more detail in Section 9 below, failure to comply with these rules may result in the revocation of counsel's security clearance, civil liability, criminal liability, or any combination thereof.

7. Access to Protected Information

A. The Government may apply to the court to deem any information "protected," and if filed in this court to be maintained under seal. Such information must be maintained under seal unless and until the court de termines the information should not be designated as "protected."

B. Without authorization from the Government or the court, protected information may not be disclosed or distributed to any person or entity other than the following:

i. Petitioner's Counsel and counsel bound by the terms of this protective order in a case filed on behalf of another Detainee seeking review under the Detainee Treatment Act,

ii. the court and its support personnel, and

iii. a Detainee if the information was obtained in the first instance from the Detainee.

C. Neither Petitioner nor Petitioner's Counsel may dis close or cause to be disclosed any information known or believed to be protected in connection with any hearing or proceeding in this case except as other wise provided herein.

D. At no time, including any period subsequent to the conclusion of the proceedings, may Petitioner's Counsel make any public or private statements dis closing any protected information made available pursuant to this Protective Order, including the fact that any such information is protected.

E. Protected information may be used only for purposes directly related to this case and not for any other litigation or proceeding, except by leave of the court. Photocopies of documents containing such informa tion may be made only to the extent necessary to facilitate the permitted use hereunder.

F. Nothing in this Protective Order prevents the Gov ernment from using for any purpose protected infor mation it provides to a party. Nothing in this Protec tive Order entitles a nonparty to this case to pro tected information.

G. Within ninety (90) days of the resolution of this ac tion and the termination of any certiorari review therefrom, all protected documents and information, and any copies thereof, provided to Petitioner's Counsel must be promptly destroyed and Peti tioner's Counsel must certify in writing that all des ignated documents and materials have been de stroyed. Counsel for the Government may retain one complete set of any such materials that were pre sented in any form to the court. Any such retained materials must be placed in an envelope or envelopes marked "Protected Information Subject to Protec tive Order." In any subsequent or collateral pro ceeding, a party may seek discovery of such materi als from the Government, without prejudice to the Government's right to oppose such discovery or its ability to dispose of the materials pursuant to its general document retention policies.

H. The Record on Review must be provided to Peti tioner's Counsel at the time the certified index of the record is filed in this court or as otherwise ordered by the court.

8. Procedures for Filing Documents

A. Until further order of this court, any pleading or other document filed by Petitioner that Petitioner's Counsel does not believe contains classified informa tion must be marked "Pending Classification Re view," filed directly with the court, and immediately served upon Government counsel. Government coun sel must accept service via hand or overnight mail. Counsel for the Government must promptly examine the pleading or other document and forward it to the appropriate agencies for their determination whether the pleading or other document contains classified information. The court will secure the doc ument until such a determination is rendered. If it is determined that the pleading or other document does not contain classified information, Government counsel will promptly so notify the court and Peti tioner's Counsel. Should a determination be made that the pleading or other document contains classi fied information, Government counsel will immedi ately notify the court of the determination so that the document may be filed under seal and main tained appropriately. Government counsel will also notify Petitioner's Counsel and the CSO. The CSO will work with Petitioner's Counsel to ensure that any classified information that may have been inad vertently processed outside of the secure facility is appropriately secured. Government counsel will work with the appropriate government agencies and departments to prepare a redacted version of the pleading or other document appropriate for filing on the public record.

B. Any pleading or other document filed by Petitioner that Petitioner's Counsel knows to be classified, be lieves may be classified, or is unsure of the proper classification, must be filed under seal with the CSO at the secure facility. The pleading or other docu ment must be marked "secret" or "top secret" as ap propriate. Petitioner's Counsel will provide the orig inal pleading and six copies thereof to the CSO. The date and time of physical submission to the CSO will be considered the date and time of filing. The CSO must immediately email the court's Guantanamo No tification List that a filing has been received. The CSO will then deliver to the court and counsel for the Government any pleading or other document filed by Petitioner that contains classified or presumptively classified information. The CSO must promptly ex amine the pleading or other document and forward it to the appropriate government agencies and de partments for their determination as to whether the pleading or other document contains classified infor mation. If it is determined that the pleading or other document contains classified information, the CSO must ensure that the document is marked with the appropriate classification marking and that the docu ment remains under seal. Government counsel will work with the appropriate government agencies or departments to prepare a redacted version of the pleading or other document appropriate for filing on the public record. If it is determined that the plead ing or other document does not contain classified information, Government counsel will promptly so notify the court and Petitioner's Counsel, and the Clerk will direct the parties to file a public version without any classification markings. Any deliberate mishandling of classified information could result in the revocation of counsel's security clearance, sanc tion by the court, or both.

C. Any pleading or other document filed by the Govern ment containing classified information must be filed under seal with the court through the CSO. The date and time of physical submission to the CSO will be considered the date and time of filing with the court. The CSO must serve a copy of any classified plead ings by the Government upon the Petitioner at the secure facility.

9. Penalties for Unauthorized Disclosure

A. Any disclosure of classified information in violation of this order may constitute violations of United States criminal laws. In addition, any violation of the terms of this Protective Order must be immediately brought to the attention of the court and may result in a charge of contempt of court and possible referral for criminal prosecution. See, e.g., Executive Order 12958, as amended. Any breach of this Protective Order may also result in the termination of access to classified information and protected information. Persons subject to this Protective Order are advised that direct or indirect unauthorized disclosure, re tention, or negligent handling of classified docu ments or information could cause damage to the na tional security of the United States and may be used to the advantage of an adversary of the United States or against the interests of the United States. Persons subject to this Protective Order are also advised that direct or indirect unauthorized disclo sure, retention, or negligent handling of protected documents or information could risk the security of United States Government personnel, United States Government facilities, and other significant United States Government interests. This Protective Order is to ensure that those authorized to receive classi fied information or protected information will not divulge this information to anyone who is not autho rized to receive it, without prior written authoriza tion from the original classification authority and in conformity with this Protective Order.

B. The termination of these proceedings will not relieve any person or party provided classified information or protected information of his, her, or its obligations under this Protective Order.

Exhibit A

MEMORANDUM OF UNDERSTANDING REGARDING ACCESS TO CLASSIFIED NATIONAL SECURITY INFORMATION

Having familiarized myself with the applicable stat utes, regulations, and orders related to, but not limited to, unauthorized disclosure of classified information, espionage and related offenses; The Intelligence Identi ties Protection Act, 50 U.S.C. § 421; 18 U.S.C. § 641; 50 U.S.C. § 783; 28 C.F.R. § 17 et seq.; and Executive Or der 12958, I understand that I may be the recipient of information or documents that belong to the United States and concern the present and future security of the United States, and that such documents and infor mation together with the methods and sources of collect ing it are classified by the United States Government. In consideration for the disclosure of classified informa tion or documents:

(1) I agree that I will never divulge, publish, or reveal either by word, conduct, or any other means such classi fied documents and information unless specifically auth orized in writing to do so by an authorized representa tive of the United States Government, or as expressly authorized by the Protective Order entered in the case captioned _______________.

(2) I agree that this Memorandum of Understanding and any other non-disclosure agreement signed by me will remain forever binding on me.

 

(3) I have received, read, and understand the Protec tive Order entered by the court in the case captioned _______________, and I agree to comply with the provi sions thereof.

 

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

Nos. 06-1197, 06-1397

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

 

HUZAIFA PARHAT, ET AL. PETITIONERS

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL., RESPONDENTS

 

Oct. 3, 2007

 

 

Before: GINSBURG, Chief Judge, and HENDERSON and ROGERS, Circuit Judges.

Opinion for the Court filed by Chief Judge GINS BURG.

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 "en emy combatant." In our opinion of July 20, 2007, we addressed various procedural motions filed by the Gov ernment and the petitioners to govern our review of the merits of the detainees' petitions. Bismullah v. Gates (Bismullah I), 501 F.3d 178 (D.C. Cir. 2007). The Gov ernment then petitioned for rehearing or, in the alterna tive, suggested rehearing en banc. The petition for re hearing 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' counsel.5 We deny the Govern ment'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 con duct of a CSRT proceeding with respect to a foreign na tional held at Guantánamo to "review the detainee's sta tus as an enemy combatant." 501 F.3d 178, 181. The Secretary of the Navy then issued a memorandum elabo rating 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. Govern ment bearing on the issue of whether the detainee meets the criteria to be designated as an enemy com batant, including information generated in connec tion with the initial determination to hold the de tainee 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 hereinaf ter "Government Information").

E-1 § E(3); see 501 F.3d at 181. The Recorder must col lect the Government Information, examine it, and then decide which information to pass on to the Tribunal. 501 F.3d at 181; E-2 § C(1). The Recorder is required to

present to the Tribunal such evidence in the Govern ment 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 sep arately provide such evidence to the Tribunal.

E-1 § H(4); E-2 § B(1), C(6).

In Bismullah I the Government argued that the re cord on review should consist solely of the Record of Proceedings, which, under the DoD Regulations, in cludes only such Government Information as the Re corder forwarded to the Tribunal. See 501 F.3d at 182, 185; E-1 § I(4); E-2 § C(8). Taking the view that the record on review should consist of "all evidence reason ably available to the Government," the petitioners con tended that the record should include all of the Govern ment Information. 501 F.3d at 184. 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 it is "consistent with the stan dards and procedures specified by the Secretary of De fense . . . (including the requirement that the conclu sion of the Tribunal be supported by a preponderance of the evidence . . .)." DTA § 1005(e)(2)(C).6 501 F.3d at 185. Whether the Recorder selected to be put before the Tribunal all exculpatory Government Information, as required by the DoD Regulations, and whether the pre ponderance of the evidence supported the conclusion of the Tribunal, cannot be ascertained without consider ation of all the Government Information. 501 F.3d at 185-86.

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 de sire 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 en emy detainee who claims prisoner-of-war status under the Geneva Conventions. The Government asserts that Army Regulation 190-8 does not require "that the mili tary 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 nei ther does Bismullah I require the Government to turn over to the CSRT all information in its files concerning a detainee; adopting the definition of Government Infor mation exactly as it appears in the DoD Regulations themselves, the court in Bismullah I required the Gov ernment to collect (and preserve for judicial review) only the relevant information in its possession that is reasonably available. 501 F.3d at 185-86. 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 consis tent 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, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (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 in clude 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 re quired 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 en tirely 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 perform ing other critical national security duties during a time of war." For example, the Government reports that its searches of certain databases for relevant documents are yielding "tens of thousands, and in many cases hun dreds of thousands, of documents" relating to a given detainee. According to Deputy Secretary of Defense Gordon England, two offices within the DoD have ex pended well over 2000 man-hours in a recent effort to collect material relating to six detainees who have peti tioned for review of their status determination.

The Government, it seems, is overreading Bismullah I and underreading the DoD Regulations. Those regula tions 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 501 F.3d at 181. 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 informa tion without regard to whether it is "reasonably avail able" is clearly not required by Bismullah I.

Indeed, the Government states elsewhere in its peti tion for rehearing that it does "not believe that the infor mation" it is now seeking "is properly considered 'reason ably available.'"7 Apparently, the Government is searching for all relevant information without regard to whether it is reasonably available because it did not re tain all the Government Information that the Recorder collected.8 The Government has consequently deter- mined that it must now search for relevant information without regard to whether the information is reasonably available "because [it] can conceive of no other compre hensive method to ensure that [it] identif[ies] informa tion that the Recorder could have examined." The Gov ernment explains that it did not retain all the Govern ment Information because, "[a]t the time, Recorders had no reason to believe that DoD would be required to pro duce (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, includ ing those under review in the present cases, before the DTA was enacted in December 2005 and therefore with out knowing what the Congress would later specify con cerning the scope and nature of judicial review.

Be that as it may, if the Government cannot, within its resource constraints, produce the Government Infor mation collected by the Recorder with respect to a par ticular detainee, then this court will be unable to confirm that the CSRT's determination was reached in compli ance with the DoD Regulations and applicable law. See 501 F.3d at 186 n.*. The Government does have an al ternative: 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 convene a new CSRT, it will have to collect only the Government Information specified by the DoD Regula tions-that is, the relevant information in its possession that is then reasonably available.9

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 Gov ernment Information.

II. Access by the Petitioner's Counsel to Classified Gov ernment Information.

The Government also objects to Bismullah I insofar as it requires the Government to turn over Government Information to the petitioners' counsel. The Govern ment sees two problems with this: The disclosure of classified Government Information "could seriously dis rupt 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 con cern about disclosure by providing, just as the Govern ment 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 de tainee." 501 F.3d at 187-88.10 The Government's need to review the Government Information in order to deter mine 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 Infor mation will be non-disclosable. Perhaps it is because, as discussed above, the Government has been searching for all relevant information without regard to whether it is reasonably available. According to the DoD Regula tions, "[c]lassified information . . . which the originat ing agency declines to authorize for use in the CSRT process is not reasonably available." E-1 § D(2). Conse quently, 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 informa tion to be redacted may indeed be as small as the Gov ernment 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 re quested 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 In formation that may be withheld from the petitioners' counsel should not affect to an appreciable degree the burden upon the Government of producing the Govern ment Information to the petitioners' counsel. Regard less of how much ultimately may be withheld, the Gov ernment will have to conduct the same review of the Government Information in order to make that determi nation; so much was inherent in the Government's pro posed standard for withholding information, which we adopted. Thus, the real import of the Government's ar gument seems to be that having to review the Govern ment Information to determine whether it must be dis closed creates a substantial burden for the Government and therefore, because the Government obviously cannot indiscriminately turn over all of the Government Infor mation 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 determina tion is inconsistent with effective judicial review as re quired by the DTA and should be avoided to the extent consistent with safeguarding classified information. 501 F.3d at 185-86, 187-88.11

APPENDIX C

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

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

 

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

 

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

 

Filed: Feb. 1, 2008

 

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

O R D E R

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 jud ges eligible to participate did not vote in favor of the pe tition. Upon consideration of the foregoing and the mo tion 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 declara tions 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.

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 re hearing 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 re hearing en banc filed by Circuit Judge GARLAND is at tached.

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 at tached.

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 pan el'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).12

1 Stmt. of Randolph, J., at 1-2. Section 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, commis sion, 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 mili tary department and a "military department is a 'depart ment' 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 "mili tary department," which necessarily implies that a mili tary department is not an agency. See 28 U.S.C.

§ 530D(e) ("executive agencies and military depart ments"); 28 U.S.C. § 530C(b)(L)(iv) ("executive agency or military department"); 28 U.S.C. § 530D(d) ("execu tive agency or military department"); cf. 28 U.S.C. § 2671 (defining "[f]ederal agency" specifically to include "the military departments" for purposes of certain sec tions of Title 28 that have no bearing upon § 2112).13

Judge Randolph dismisses these provisions on the ground that in them the term "agency" is always modi fied by "executive" or "federal," which suggests a more limited conception of "agency" there than in § 451, where it appears without modification. Stmt. of Ran dolph, 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 commis sions" from the definition of "agency" for purposes of that Act. Stmt. of Randolph, J., at 3 & n.3. Judge Ran dolph seems to believe that by defining "agency" broad ly and then excluding courts martial and military com missions, the APA implies that courts martial and mili tary commissions are agencies except where "expressly excluded"; because Title 28, unlike the APA, does not expressly exclude courts martial and military commis sions from its scope, courts martial and military commis sions are presumably agencies for purposes of that title, including §§ 451 and 2112.

This reasoning tells us nothing about a CSRT, how ever, unless a CSRT is a court martial or military com mission, 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 U.S.C. § 948d(c) (distinguishing military commission from CSRT); com pare DTA § 1005(e)(2) ("Review of decisions of combat ant status review tribunals of propriety of detention") with DTA § 1005(e)(3) ("Review of final decisions of mili tary commissions").14 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, some thing 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' under standing when, by enacting the DTA, it ratified the pro cedural 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.15

It would be particularly untoward to apply § 2112(b) outside its apparent field of application-and particu larly 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 re view function is broader than Judge Randolph suggests. The DTA charges the court with reviewing not only "whether . . . the conclusion of the Tribunal [was] sup ported 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 "stan dards and procedures" to be followed by the Recorder, the detainee's Personal Representative, and the CSRTs themselves, require the Recorder to obtain all the Gov ernment 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 sup port the detainee's classification as an enemy combat ant" together with all exculpatory information, E-1 § H(4); E-2 §§ B(1), C(6), and to share all the Govern ment Information with the detainee's Personal Repre sentative, 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.16 See 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 col lect and forward. See Bismullah I, 501 F.3d at 185-86; Bismullah II, 503 F.3d at 139-40. Irrespective, there fore, 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 Re corder in any particular detainee's case" because "Re corders . . . 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 either "re assemble the Government Information it did collect or . . . convene a new CSRT." Bismullah II, 503 F.3d at 141-42.17

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 Tribu nal. 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, coun sel may see and draw the attention of the court to any arguably exculpatory Government Information the Re corder did not put before the Tribunal. See Decl. of Ste phen Abraham, Lieutenant Colonel, U.S. Army Reserve ¶¶ 10-17 (June 15, 2007) ("asked to confirm and repre sent in a statement to be relied upon by the CSRT board members that the [originating intelligence] organiza tions 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 avail able information").

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). Un like the final decision rendered in a criminal or an agency proceeding, which is the product of an open and adversarial process before an independent decision maker, 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 law yer 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).18 As a result, the Recorder's failure to adhere to the DoD Regulations can influence the out come 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 charade when it enacted the DTA. Thus, the analogy Judge Henderson draws between our review of status determi nations under the DTA and our review of agency deci sions, Stmt. of Henderson, J., at 3-4, is inapt.

Judge Henderson's comparison of a status determi nation 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 pre ponderance 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' designa tion?" Stmt. of Henderson, J., at 2-3. The critical ques tion, 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 re view 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.19 Thereafter, it may be that noth ing 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)20; 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, how ever, accommodated, to the full extent requested by the Government, its position that certain types of Govern ment 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 Govern ment Information that is either 'highly sensitive infor mation, 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, "de cline[] to authorize [classified information] for use in the CSRT process," presumably for reasons of national se curity, 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 stan dard." 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 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 ren dering it "not reasonably available."

In closing, I note that the Supreme Court, in the or der 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 mer its 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 Govern ment'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 Bou mediene 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 deci sion in Bismullah, et al. v. Gates, . . . currently pend ing in the United States Court of Appeals for the Dis trict of Columbia Circuit," and that "supplemental brief ing 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 rehear ing en banc: The Detainee Treatment Act of 2005 (DTA) gives exclusive jurisdiction to this Court "to de termine the validity of any final decision of [the] Com batant 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 en compassed 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. Accord ingly, I dissent from the en banc denial.21

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 avail able" (again, specified by DoD Regulation E-1 § E(3)) and, then, by concluding that "information without re gard to whether it is 'reasonably available' is clearly not required by Bismullah I." Bismullah II, 503 F.3d at 141. Bismullah II, however, leaves 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.22 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 prelimi nary hearing without knowing all the evidence the pros ecution 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 pre liminary 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 func tion 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 combat ant. Only if he is one can he, presumably, then be held for trial before a military commission. If we can deter mine whether the preponderance of the evidence sup ports a probable cause finding sufficient to hold an arrestee for trial without knowing (much less, review ing) all the evidence in the prosecutor's possession, can we not do so in reviewing the evidence supporting the "enemy combatant" designation?23 And should not all of us at least hear the arguments for and against, espe cially 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 re view 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 com mitted to the agency, not the judiciary. A reviewing court is not to supplant the agency 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 re cord for the reviewing court is limited to "that infor- mation before the [agency] at the time of [its] decision, . . . thus excluding ex post supplementation of the re cord 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 argu ments 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 sub missions 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).24 Bismullah II, however, may be unrealisti cally sanguine about the Government's resulting burden if the presumption is that it must disclose all Govern ment Information except what fits within the exceptions; according to the Government's submissions, which, I submit, we are ill-equipped to second-guess, the excep tions swamp the disclosable information. Cf. Krikorian v. Dep't of State, 984 F.2d 461, 464 (D.C. Cir. 1993).25 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 Govern ment 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 Mi chael V. Hayden, Director of the Central Intelligence Agency; Gordon England, Deputy Secretary of the De partment 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 declara tions, the five officials-charged with safeguarding our country while we are now at war-have detailed the grave national security concerns the Bismullah I hold ing presents. "Without doubt, our Constitution recog nizes 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 repre sented that "military officers who are engaged in the serious work of waging battle [will] be 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.26 For the foregoing reasons I dissent from the denial of rehearing en banc and join Judge Randolph's dissent.

 

RANDOLPH, Circuit Judge, with whom Circuit Jud ges SENTELLE, HENDERSON and KAVANAUGH join, dis senting 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 affi davits of the Directors of the Central Intelligence Ag ency, the Federal Bureau of Investigation, and the Na tional Security Agency and the Director of National In telligence, 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 gov ernment must file, as the "record" in each detainee re view case, vast reams of classified information to be shared presumptively with private defense counsel, re gardless whether any of this information was ever pre sented 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 con tents of the record in cases such as these, it violates the restrictions on our jurisdiction in the Detainee Treat ment 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 deci sions. This is understandable because a separate statute governs "the contents of the record in all proceedings in stituted in the courts of appeals to enjoin, set aside, sus pend, modify, or otherwise review or enforce orders of administrative agencies, boards, commissions, and offi cers." 28 U.S.C. § 2112(a). Subsection (b) of this stat ute, and Rule 16(a) of the Federal Rules of Appellate 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.27 Yet neither of the panel's two opinions even mentions Rule 16(a) or § 2112(a).28

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 Gins burg, C.J., at 2-5. While intended to show that a Com batant Status Review Tribunal is not an "agency" for the purposes of § 2112(b), it indicates the opposite. In Title 28, "'agency' includes any department, independent es tablishment, 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 Re view 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 mili tary commissions would be covered as "agencies," unless they were expressly excluded from the Act. 5 U.S.C. § 551(1)(F).29

The Chief Judge's second explanation for disregard ing § 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 func tion"? Apparently the idea is that the court will look at how well the Recorder did his job in gathering "Govern ment Information" and how well he culled it in present ing the information to the Tribunal as "Government Evi dence."30 Id. at 5-9.

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 Tri bunal, 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" informa tion 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 Gins burg has ever given a satisfactory answer to it.

Perhaps the panel envisioned our court examining the thousands of documents31 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 be fore 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 piece of information was obtained or was not obtained by any particular Recorder in any particu lar detainee's case.

The original panel opinion offered a different ratio nale than the one the Chief Judge now proposes. It was that the detainee's counsel would need to see Govern ment Information "to present an argument that the Re corder 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 informa tion cannot be used in our judicial review of the Tribu nal's status determination. And we can also be sure that its assembly and filing in this court, and potential shar ing 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 im portant to decide the case correctly and that a correct decision would be of more assistance to the High Court.

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 Administra tive 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 "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 mili tary function exclusion, the APA does not waive sover eign 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 cus tody "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 mili tary 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" loca tion 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 President, with the approval of Congress, are continuing; those military actions are part of the war against the al Qaeda terrorist network; and those ac tions constitute "war," not necessarily as the Constitu tion uses the word, but as the APA uses it. See Camp bell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000) (Ran dolph, 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 congres sional 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 "reason ably available" adequately defines the scope of the re cord because that phrase comes from the CSRT regula tions. 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 avail able," 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 ex haustive 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 clar ify the obligation. Using the phrase "reasonably avail able" provides not a process-based definition, but an abstract legal standard. If the Government must popu late the record based on this standard, it will have to conduct a new search for materials that satisfy it. Un der 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 pro cess-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.32 The likely result of relying on a theoretical record 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 sub stantially 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 pro ceedings. 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 proce dures, 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 ac knowledges. 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 imple ment international law, Army Reg. 190-8 §§ 1-1(b)(3), 1- 6(a) (citing Geneva Convention Relative to the Treat ment of Prisoners of War art. 5, Aug. 12, 1949, 6 U.S.T. 3316), it is conceivable that they were intentionally mod eled on traditional inquisitorial procedures. Many as pects 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 Com batant 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 de tainee" is an enemy combatant, id. Encl. 1 § E(3), in cluding evidence both for and against that determina tion. Cf. JACQUELINE HODGSON, FRENCH CRIMINAL JUSTICE 30 (2005) (investigating magistrate must "gather[] evidence which might exculpate as well as in criminate 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 infor mation than what the magistrate could have gathered because it was available.

My point is not to hold out continental criminal pro cedure 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 tribu nals. 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 interna tional law. Nevertheless, this court could define the re cord 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.

I am now convinced we should have begun by dis cussing the problems much more thoroughly en banc. Accordingly, I dissent from the denial of rehearing.

APPENDIX D

1. Section 1005 of the Detainee Treatment Act of 2005, Pub. L. No. 109-148, 119 Stat. 2739, provides, in perti nent part:

TITLE X-MATTERS RELATING TO DETAINEE

SEC. 1005. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.

(a) SUBMITTAL OF PROCEDURES FOR STATUS RE VIEW OF DETAINEES AT GUANTANAMO BAY, CUBA, AND IN AFGHANISTAN AND IRAQ.-

(1) IN GENERAL.-Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Rep resentatives a report setting forth-

(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the de tainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and

(B) the procedures in operation in Afghani stan and Iraq for a determination of the status of aliens detained in the custody or under the physi cal control of the Department of Defense in those countries.

(2) DESIGNATED CIVILIAN OFFICIAL.-The proce dures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Depart ment of Defense who is designated by the President or Secretary of Defense to be the final review au thority within the Department of Defense with re spect to decisions of any such tribunal or board (re ferred to as the "Designated Civilian Official") shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.

(3) CONSIDERATION OF NEW EVIDENCE.-The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combat ant status of a detainee.

(b) CONSIDERATION OF STATEMENTS DERIVED WITH COERCION.-

(1) ASSESSMENT.-The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall en sure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or suc cessor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practica ble, assess-

(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and

(B) the probative value (if any) of any such statement.

(2) APPLICABILITY.-Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act.

(c) REPORT ON MODIFICATION OF PROCEDURES.- The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modifica tion of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect.

(d) ANNUAL REPORT.-

(1) REPORT REQUIRED.-The Secretary of De fense shall submit to Congress an annual report on the annual review process for aliens in the custody of the Department of Defense outside the United States. Each such report shall be submitted in un classified form, with a classified annex, if necessary. The report shall be submitted not later than Decem ber 31 each year.

(2) ELEMENTS OF REPORT.-Each such report shall include the following with respect to the year covered by the report:

(A) The number of detainees whose status was reviewed.

(B) The procedures used at each location.

(e) JUDICIAL REVIEW OF DETENTION OF ENEMY COMBATANTS.-

(1) IN GENERAL.-Section 2241 of title 28, United States Code, is amended by adding at the end the following:

"(e) Except as provided in section 1005 of the De tainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider-

"(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the De partment of Defense at Guantanamo Bay, Cuba; or

"(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who-

"(A) is currently in military custody; or

"(B) has been determined by the United States Court of Appeals for the District of Colum bia Circuit in accordance with the procedures set forth in section 1005(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.".

(2) REVIEW OF DECISIONS OF COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.-

(A) IN GENERAL.-Subject to subparagraphs (B), (C), and (D), the United States Court of Ap peals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the valid ity of any final decision of a Combatant Status Re view Tribunal that an alien is properly detained as an enemy combatant.

(B) LIMITATION ON CLAIMS.-The jurisdiction of the United States Court of Appeals for the Dis trict of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien-

(i) who is, at the time a request for review by such court is filed, detained by the Depart ment of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to ap plicable procedures specified by the Secretary of Defense.

(C) SCOPE OF REVIEW.-The jurisdiction of the United States Court of Appeals for the Dis trict of Columbia Circuit on any claims with re spect 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 speci fied by the Secretary of Defense for Com batant 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.

(D) TERMINATION ON RELEASE FROM CUSTODY.-The jurisdiction of the United States Court of Appeals for the District of Co lumbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

(3) REVIEW OF FINAL DECISIONS OF MILITARY COMMISSIONS.-

(A) IN GENERAL.-Subject to subpara graphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).

(B) GRANT OF REVIEW.-Review under this paragraph-

(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or

(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Colum bia Circuit.

(C) LIMITATION ON APPEALS.-The juris diction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien-

(i) who was, at the time of the proceed ings pursuant to the military order re ferred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and

(ii) for whom a final decision has been rendered pursuant to such military order.

(D) SCOPE OF REVIEW.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consid eration of-

(i) whether the final decision was con sistent with the standards and procedures specified in the military order referred to in subparagraph (A); and

(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.

(4) RESPONDENT.-The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

(f) CONSTRUCTION.-Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.

(g) UNITED STATES DEFINED.-For purposes of this section, the term "United States", when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.

(h) EFFECTIVE DATE.-

(1) IN GENERAL.-This section shall take effect on the date of the enactment of this Act.

(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS.-Para- graphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.

 

2. Section 2112 of Title 28 of the United States Code provides, in pertinent part:

Record on review and enforcement of agency orders

* * * * *

(b) The record to be filed in the court of appeals in such a proceeding 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 con cerned, or such portions thereof (1) as the rules pre scribed under the authority of section 2072 of this title may require to be included therein, or (2) as the agency, board, commission, or officer concerned, the petitioner for review or respondent in enforcement, as the case may be, and any intervenor in the court proceeding by written stipulation filed with the agency, board, commis sion, or officer concerned or in the court in any such pro ceeding may consistently with the rules prescribed un der the authority of section 2072 of this title designate to be included therein, or (3) as the court upon motion of a party or, after a prehearing conference, upon its own motion may by order in any such proceeding designate to be included therein. Such a stipulation or order may provide in an appropriate case that no record need be filed in the court of appeals. If, however, the correct ness of a finding of fact by the agency, board, commis sion, or officer is in question all of the evidence before the agency, board, commission, or officer shall be in cluded in the record except such as the agency, board, commission, or officer concerned, the petitioner for re view or respondent in enforcement, as the case may be, and any intervenor in the court proceeding by written stipulation filed with the agency, board, commission, or officer concerned or in the court agree to omit as wholly immaterial to the questioned finding. If there is omitted from the record any portion of the proceedings before the agency, board, commission, or officer concerned or in the court agree to omit as wholly immaterial to the questioned finding. If there is omitted from the record any portion of the proceedings before the agency, board, commission, or officer which the court subsequently de termines to be proper for it to consider to enable it to review or enforce the order in question the court may direct that such additional portion of the proceedings be filed as a supplement to the record. The agency, board, commission, or officer concerned may, at its option and without regard to the foregoing provisions of this sub section, and if so requested by the petitioner for review or respondent in enforcement shall, file in the court the entire record of the proceedings before it without abbre viation.

3. Federal Rule of Appellate Procedure 16 provides, in pertinent part:

The Record on Review or Enforcement

(a) Composition of the Record. The record on re view or enforcement of an agency order consists of:

(1) the order involved;

(2) any findings or report on which it is based; and

(3) the pleadings, evidence, and other parts of the proceedings before the agency.

 

APPENDIX E

DEPUTY SECRETARY OF DEFENSE 1010 DEFENSE PENTAGON WASHINGTON DC 20301-1010

[Seal Omitted]

7 Jul 2004

MEMORANDUM FOR THE SECRETARY OF THE NAVY

SUBJECT: Order Establishing Combatant Status Re view Tribunal

This Order applies only to foreign nationals held as enemy combatants in the control of the Department of Defense at the Guantanamo Bay Naval Base, Cuba ("detainees").

a. Enemy Combatant. For purposes of the Order, the term "enemy combatant" shall mean an individual who was part of or supporting Taliban or al Qaeda for ces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. Each detainee subject to this Order has been determined to be an enemy combatant through multiple levels of reviews by officers of the Department of Defense.

b. Notice. Within ten days after the date of this Order, all detainees shall be notified of the opportunity to contest designation as an enemy combatant in the proceeding described herein, of the opportunity to con sult with and be assisted by a personal representative as described in paragraph (c), and of the right to seek a writ of habeas corpus in the courts of the United States.

c. Personal Representative. Each detainee shall be assigned a military officer, with the appropriate security clearance, as a personal representative for the purpose of assisting the detainee in connection with the review process described herein. The personal representative shall be afforded the opportunity to review any reason ably available information in the possession of the De partment of Defense that may be relevant to a determi nation of the detainee's designation as an enemy com batant, including any records, determinations, or re ports generated in connection with earlier determina tions or reviews, and to consult with the detainee con cerning that designation and any challenge thereto. The personal representative may share any information with the detainee, except for classified information, and may participate in the Tribunal proceeding as provided in paragraph (g)(4).

d. Tribunals. Within 30 days after the detainee's personal representative has been afforded the opportu nity to review the reasonably available information in the possession of the Department of Defense and had an opportunity to consult with the detainee, a Tribunal shall be convened to review the detainee's status as an enemy combatant.

e. Composition of Tribunal. A Tribunal shall be composed of three neutral commissioned officers of the U.S. Armed Forces, each of whom possesses the appro priate security clearance and none of whom was involved in the apprehension, detention, interrogation, or previ ous determination of status of the detainee. One of the members shall be a judge advocate. The senior member (in the grade of 0-5 and above) shall serve as President of the Tribunal. Another non-voting officer, preferable a judge advocate, shall serve as the Recorder and shall not be a member of the Tribunal.

f. Convening Authority. The Convening Authority shall be designated by the Secretary of the Navy. The Convening Authority shall appoint each Tribunal and its members, and a personal representative for each de tainee. The Secretary of the Navy, with the concurrence of the General Counsel of the Department of Defense, may issue instructions to implement this Order.

g. Procedures.

(1) The Recorder shall provide the detainee in ad vance of the proceedings with notice of the unclassified factual basis for the detainee's designation as an enemy combatant.

(2) Members of the Tribunal and the Recorder shall be sworn. The Recorder shall be sworn first by the Pres ident of the Tribunal. The Recorder will then adminis ter an oath, to faithfully and impartially perform their duties, to all members of the Tribunal to include the President.

(3) The record in each case shall consist of all the documentary evidence presented to the Tribunal. The Recorder's summary of all witness testimony, a written report of the Tribunal's decision, and a recording of the proceedings (except proceedings involving deliberation and voting by the members), which shall be preserved.

(4) The detainee shall be allowed to attend all pro ceedings, except for proceedings involving deliberation and voting by the members or testimony and other mat ters that would compromise national security if held in the presence of the detainee. The detainee's personal representative shall be allowed to attend all proceed ings, except for proceedings involving deliberation and voting by the members of the Tribunal.

(5) The detainee shall be provided with an inter preter, if necessary.

(6) The detainee shall be advised at the beginning of the hearing of the nature of the proceedings and of the procedures accorded him in connection with the hearing.

(7) The Tribunal, through its Recorder, shall have access to and consider any reasonably available informa tion generated in connection with the initial determina tion to hold the detainee as an enemy combatant and in any subsequent reviews of that determination, as well as any reasonably available records, determinations, or re ports generated in connection therewith.

(8) The detainee shall be allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal. The Tribunal shall determine the reasonable availability of witnesses. If such wit nesses are from within the U.S. Armed Forces, they shall not be considered reasonably available if, as deter mined by their commanders, their presence at a hearing would affect combat or support operations. In the case of witnesses who are not reasonably available, written statements, preferably sworn, may be submitted and considered as evidence.

(9) The Tribunal is not bound by the rules of evi dence such as would apply in a court of law. Instead the Tribunal shall be free to consider any information it deems relevant and helpful to a resolution of the issue before it. At the discretion of the Tribunal, for example, it may consider hearsay evidence, taking into account the reliability of such evidence in the circumstances. The Tribunal does not have the authority to declassify or change the classification of any national security infor mation it reviews.

(10) The detainee shall have a right to testify or otherwise address the Tribunal in oral or written form, and to introduce relevant documentary evidence.

(11) The detainee may not be compelled to testify before the Tribunal.

(12) Following the hearing of testimony and the review of documents and other evidence, the Tribunal shall determine in closed session by majority vote whe ther the detainee is properly detained as an enemy com batant. Preponderance of evidence shall be the stan dard used in reaching this determination, but there shall be a rebuttable presumption in favor of the Govern ment's evidence.

(13) The President of the Tribunal shall, without regard to any other provision of the Order, have author ity and the duty to ensure that all proceedings of or in relation to the Tribunal under this Order shall comply with Executive Order 12958 regarding national security information.

h. The Record. The Recorder shall, to the maximum extent practicable, prepare the record of the Tribunal within three working days of the announcement of the Tribunal's decision. The record shall include those items described in paragraph (g)(3) above. The record will then be forwarded to the Staff Judge Advocate for the Convening Authority, who shall review the record for le gal sufficiency and make a recommendation to the Con vening Authority. The Convening Authority shall re view the Tribunal's decision and, in accordance with this Order and any implementing instructions issuded by the Secretary of the Navy, may return the record to the Tri bunal for further proceedings or approve the decision and take appropriate action.

i. Non-Enemy Combatant Determination. If the Tribunal determines that the detainee shall no longer be classified as an enemy combatant, the written report of its decision shall be forwarded directly to the Secretary of Defense or his designee. The Secretary or his desig nee shall so advise the Secretary of State , in order to permit the Secretary of State to coordinate the transfer of the detainee for release to the detainee's country of citizenship or other disposition consistent with domestic and international obligations and the foreign policy of the United States.

j. This Order is intended solely to improve manage ment within the Department of Defense concerning its detention of enemy combatants at Guantanamo Bay Na val Base, Cuba, and is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law, in equity, or otherwise by any party against the United States, its departments, agencies, instrumentalities or entities, its officers, employees or agents, or any other person.

k. Nothing in the Order shall be construed to limit, impair, or otherwise affect the constitutional authority of the President as Commander in Chief or any author ity granted by statute to the President or the Secretary of Defense.

This Order is effective immediately.

/s/ [ILLEGIBLE]

 

 

 

 

APPENDIX F

THE SECRETARY OF THE NAVY

WASHINGTON, D.C. 20350-1000

29 July 2004

[Logo Omitted]

MEMORANDUM FOR DISTRIBUTION

Subj: Implementation of Combatant Status Review Tri bunal Procedures for Enemy Combatants de tained at Guantanamo Bay Naval Base, Cuba

Ref: (a) Deputy Secretary of Defense Order of July 7, 2004

(b) Convening Authority Appointment Letter of July 9, 2004

Encl: (1) Combatant Status Review Tribunal Process (2) Recorder Qualifications, Roles and Respon-

sibilities

(3) Personal Representative Qualifications, Roles and Responsibilities

(4) Combatant Status Review Tribunal Notice to Detainees

(5) Sample Detainee Election Form

(6) Sample Nomination Questionnaire

(7) Sample Appointment Letter for Combatant Status Review Tribunal Panel

(8) Combatant Status Review Tribunal Hearing Guide

(9) Combatant Status Review Tribunal Decision Report Cover Sheet

1. Introduction

By reference (a), the Secretary of Defense has estab lished a Combatant Status Review Tribunal (CSRT) pro cess to determine, in a fact-based proceeding, whether the individuals detained by the Department of Defense at the U.S. Naval Base Guantanamo Bay, Cuba, are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designa tion. The Secretary of the Navy has been appointed to operate and oversee this process.

The Combatant Status Review Tribunal process pro vides a detainee: the assistance of a Personal Represen tative; an interpreter if necessary; an opportunity to re view unclassified information relating to the basis for his detention; the opportunity to appear personally to present reasonably available info[r]mation relevant to why he should not be classified as an enemy combatant; the op portunity to question witnesses testifying at the Tribu nal: and, to the extent they are

Subj: Implementation of Combatant Status Review Tri bunal Procedures for Enemy Combatants de tained at Guantanamo Bay Naval Base, Cuba

reasonably available, the opportunity to call witnesses on his behalf.

2. Authority

The Combatant Status Review Tribunal process was established by Deputy Secretary of Defense Order da ted July 7, 2004 (reference (a)), which designated the un dersigned to operate and oversee the Combatant Status Review Tribunal process. The Tribunals will be gov erned by the provisions of reference (a) and this imple menting directive, which sets out procedures for Tribu nals and establishes the position of Director, Combatant Status Review Tribunals. Reference (b) designates the Director, CSRT, as the convening authority for the Tri bunal process.

3. Implementing Process

The Combatant Status Review Tribunal Process is set forth in enclosure (1). Enclosures (2) and (3) set forth detailed descriptions of the roles and responsibili ties of the Recorder and Personal Representative res pectively. Enclosure (4) is a Notice to detainees regard ing the CSRT process. Enclosure (5) is a Sample De tainee Election Form. Enclosure (6) is a Sample Nomi nee Questionnaire for approval of Tribunal members, Recorders, and Personal Representatives. Enclosure (7) is an Appointment Letter that will be signed by the Di rector of CSRT as the convening authority. Enclosure (8) is a CSRT Hearing Guide. Tribunal decisions will be reported to the convening authority by means of enclo sure (9). This implementing directive is subject to revi sion at any time.

/s/ ILLEGIBLE

CC:

Secretary of State

Secretary of Defense

Attorney General

Secretary of Homeland Security

Director, Central Intelligence Agency

Assistant to the President for National Security Affairs Counsel to the President

Deputy Secretary of Defense Secretary of the Army Secretary of the Navy Secretary of the Air Force Chairman of the Joint Chiefs of Staff Director, Federal Bureau of Investigation Director of Defense Agencies Director, DOD Office of Detainee Affairs

35.

Combatant Status Review Tribunal Process

A. Organization

Combatant Status Review Tribunals (CSRT) will be ad ministered by the Director, Combatant Status Review Tribunals. The Director will staff and structure the Tri bunal organization to facilitate its operation. The CSRT staff will schedule Tribunal proceedings, provide for interpreter services, provide legal advice to the Director and to Tribunal panels, provide clerical assistance and other administrative support, ensure information secu rity, and coordinate with other agencies as appropriate.

B. Purpose and Function

This process will provide a non-adversarial proceeding to determine whether each detainee in the control of the Department of Defense at the Guantanarno Bay Naval Base, Cuba, meets the criteria to be designated as an enemy combatant, defined in reference (a) as follows:

An "enemy combatant" for purposes of this order shall mean an individual who was part of or support ing Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Each detainee whose status will be reviewed by a Tribu nal has previously been determined, since capture, to be an enemy combatant through multiple levels of review by military officers and officials of the Department of Defense.

The Director, CSRT, shall convene Tribunals pursuant to this implementing directive to conduct such proceed ings as necessary to make a written assessment as to each detainee's status as an enemy combatant. Each Tribunal shall determine whether the preponderance of the evidence supports the conclusion that each detainee meets the criteria to be designated as an enemy combat ant.

Adoption of the procedures outlined in this directive is not intended to, and does not, create any right or bene fit, substantive or procedural, enforceable at law or in equity by any party against the United States, its de partments, agencies, instrumentalities or entities, its officers, employees or agents, or any other person.

C. Combatant Status Review Tribunal Structure

(1) Each Tribunal shall be composed of a panel of three neutral commissioned officers of the U.S. Armed Forces convened to make determinations of enemy combatant status pursuant to this im plementing directive. Each of the officers shall possess the appropriate security clearance and none of the officers appointed shall have been involved in the apprehension, detention, interro gation, or previous determination of status of the detainees other than the CSRT process. The senior member of each Tribunal shall be an offi cer serving in the grade of 0-6 and shall be its President. The other members of the Tribunal shall be officers in the grade of 0-4 and above. One of the officers appointed to the Tribunal shall be a judge advocate. All Tribunal members have an equal vote as to a detainee's enemy com batant status.

(2) Recorder. Each Tribunal shall have a commis sioned officer serving in the grade of 0-3 or ab ove, preferably a judge advocate, appointed by the Director, CSRT, to obtain and present all relevant evidence to the Tribunal and to cause a record to be made of the proceedings. The Re corder shall have an appropriate security clear ance and shall have no vote. The Recorder shall not have been involved in the apprehension, de tention, interrogation, or previous determination of status of the detainees other than the CSRT process. The role and responsibilities of the Re corder are set forth in enclosure (2).

(3) Personal Representative. Each Tribunal shall have a commissioned officer appointed by the Director, CSRT, to assist the detainee in review ing all relevant unclassified information, in pre paring and presenting information, and in ques tioning witnesses at the CSRT. The Personal Representative shall be an officer in the grade of 0-4 or above, shall have the appropriate security clearance, shall not be a judge advocate, and shall have no vote. The Personal Representative shall not have been involved in the apprehension, detention, interrogation, or previous determina tion of status of the detainees other than the CSRT process. The role and responsibilities of the Personal Representative are set forth in en closure (3).

(4) Legal Advisor. The Director, CSRT, shall ap point a judge advocate officer as the Legal Advi sor to the Tribunal process. The Legal Advisor shall be available in person, telephonically, or by other means, to each Tribunal as an advisor on legal, evidentiary, procedural or other matters. In addition, the Legal Advisor shall be responsi ble for reviewing each Tribunal decision for legal sufficiency. The Legal Advisor shall have an appropriate security clearance and shall have no vote. The Legal Advisor shall also not have been involved in the apprehension, detention, interro gation, or previous determination of status of the detainees other than the CSRT process.

(5) Interpreter. If needed, each Tribunal will have an interpreter appointed by the President of the Tribunal who shall be competent in English and a language understood by the detainee. The in terpreter shall have no vote and will have an ap propriate security clearance.

D. Handling of Classified Material

(1) All parties shall have due regard for classified information and safeguard it in accordance with all applicable instructions and regulations. The Tribunal, Recorder and Personal Representative shall coordinate with an Information Security Officer in the handling and safeguarding of clas sified material before, during and after the Tri bunal proceeding.

(2) The Director, CSRT, and the Tribunal President have the authority and duty to ensure that all proceedings of, or in relation to, a Tribunal un der this Order shall comply with Executive Or der 12958 regarding national security informa tion in all respects. Classified information may be used in the CSRT process with the concur rence of the originating agency. Classified infor mation for which the originating agency declines to authorize for use in the CSRT process is not reasonably available. For any information not reasonably available, a substitute or certification will be requested from the originating agency as cited in paragraph E (3)(a) below.

(3) The Director, CSRT, the CSRT staff, and the participants in the CSRT process do not have the authority to declassify or change the classifi cation of any classified information.

E. Combatant Status Review Tribunal Authority

The Tribunal is authorized to:

(1) Determine the mental and physical capacity of the detainee to participate in the hearing. This determination is intended to be the perception of a layperson, not a medical or mental health pro fessional. The Tribunal may direct a medical or mental health evaluation of a detainee, if deemed appropriate. If a detainee is deemed physically or mentally unable to participate in the CSRT process, that detainee's case will be held as a Tr[i]bunal in which the detainee elected not to participate. The Tribunal President shall ensure that the circumstances of the detainee's absence are noted in the record.

(2) Order U.S. military witnesses to appear and to request the appearance of civilian witnesses i[f,] in the judgment of the Tribunal President those witnesses are reasonably available as defined in paragraph G (9) of this enclosure.

(3) Request the production of such reasonably avail able 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 gen erated in connection with the initial determina tion to hold the detainee as an enemy combatant and in any subsequent reviews of that determi nation, as well as any records, determinations, or reports generated in connection with such proceedings (cumulatively called hereinafter the "Government Information").

(a) For any relevant information not provided in response to a Tribunal's request, the ag ency holding the information shall provide either an acceptable substitute for the infor mation requested or a certification to the Tribunal that none of the withheld informa tion would support a determination that the detainee is not an enemy combatant. Accep table substitutes may include an unclassified or, if not possible, a lesser classified, sum mary of the information; or a statement as to the relevant facts the information would tend to prove.

(4) Require each witness (other than the detainee) to testify under oath. The detainee has the op tion of testimony under oath or unsworn. Forms of the oath for Muslim and non-Muslim wit nesses are in the Tribunal Hearing Guide (enclo sure (8)). The Tribunal Recorder will administer the oath.

F. The Detainee's Participation in the CSRT Process

(1) The detainee may elect to participate in a Com batant Status Review Tribunal or may waive participation in the process. Such waiver shall be submitted to the Tribunal in writing by the detainee's Personal Representative and must be made after the Personal Representative has ex plained the Tribunal process and the opportu nity of the detainee to contest this enemy com batant status. The waiver can be either an affir mative statement that the detainee declines to participate or can be inferred by the Personal Representative from the detainee's silence or actions when the Personal Representative ex plains the CSRT process to the detainee. The detainee's election shall be noted by the Per sonal Representative on enclosure (5).

(2) If a detainee waives participation in the Tribunal process, the Tribunal shall still review the de tainee's status without requiring the presence of the detainee.

(3) A detainee who desires to participate in the Tri bunal process shall be allowed to attend all Tri bunal proceedings except for proceedings involv ing deliberation and voting by the members and testimony or other matters that would compro mise national security if held in the presence of the detainee.

(4) The detainee may not be compelled to testify or answer questions before the Tribunal other than to confirm his identity.

(5) The detainee shall not be represented by legal counsel but will be aided by a Personal Repre sentative who may, upon the detainee's election, assist the detainee at the Tribunal. He shall be provided with an interpreter during the Tribunal hearing if necessary.

(6) The detainee may present evidence to the Tribu nal, including the testimony of witnesses who are reasonably available and whose testimony is con sidered by the Tribunal to be relevant. Evi dence on the detainee's behalf (other than his own testimony, if offered) may be presented in documentary form and through written state ments, preferably sworn.

(7) The detainee may present oral testimony to the Tribunal and may elect to do so under oath or affirmation or as unsworn testimony. If the de tainee testifies, either under oath or unsworn, he may be questioned by the Recorder, Personal Representative, or Tribunal members, but may not be compelled to answer questions before the Tribunal.

(8) The detainee's Personal Representative shall be afforded the opportunity to review the Govern ment Information, and to consult with the de tainee concerning his status as an enemy com batant and any challenge thereto. The Personal Representative may share the unclassified por tion of the Government Information with the detainee.

(9) The detainee shall be advised of the foregoing by his Personal Representative before the Tribunal is convened, and by the Tribunal President at the beginning of the hearing.

G. Tribunal Procedures

(1) By July 17, 2004, the convening authority was required to notify each detainee of the opportu nity to contest his status as an enemy combatant in the Combatant Status Review Tribunal pro cess, the opportunity to consult with and be as sisted by a Personal Representative, and of the jurisdiction of the courts of the United States to entertain a habeas corpus petition filed on the detainee's behalf. The English language version of this Notice to Detainees is at enclosure (4). All detainees were so notified July 12-14, 2004.

(2) An officer appointed as a Personal Representa tive will meet with the detainee and, through an interpreter if necessary, explain the nature of the CSRT process to the detainee, explain his opportunity to personally appear before the Tri bunal and present evidence, and assist the de tainee in collecting relevant and reasonably av ailable information and in preparing for and pre senting information to the CSRT.

(3) The Personal Representative will have the de tainee make an election as to whether he wants to participate in the Tribunal process. Enclo sure (5) is a Detainee Election Form. If the de tainee elects not to participate, or by his silence or actions indicates that he does not want to par ticipate, the Personal Representative will note this on the election form and this detainee will not be required to appear at his Tribunal hear ing. The Director, CSRT, as convening author ity, shall appoint a Tribunal as described in paragraph C (1) of this enclosure for all detain ees after reviewing Nomination Questionnaires (enclosure (6)) and approving Tribunal panel members. Enclosure (7) is a sample Appoint ment Letter.

(4) The Director, CSRT, will schedule a Tribunal hearing for a detainee within 30 days after the detainee's Personal Representative has reviewed the Government Information, had an opportu nity to consult with the detainee, and notified the detainee of his opportunity to contest his sta tus, even if the detainee declines to participate as set forth above. The Personal Representative will submit a completed Detainee Election Form to the Director, CSRT, or his designee when the Personal Representative has completed the ac tions above. The 30-day period to schedule a Tribunal will commence upon receipt of this form.

(5) Once the Director, CSRT, has scheduled a Tri bunal, the President of the assigned Tribunal panel may postpone the Tribunal for good cause shown to provide the detainee or his Personal Representative a reasonable time to acquire evi dence deemed relevant and necessary to the Tri bunal's decision, or to accommodate military exi gencies as presented by the Recorder.

(6) All Tribunal sessions except those relating to deliberation or voting shall be recorded on au diotape. Tribunal sessions where classified in formation is discussed shall be recorded on sepa rate and properly marked audiotapes.

(7) Admissibility of Evidence. The Tribunal is not bound by the rules of evidence such as would ap ply in a court of law. Instead, the Tribunal shall be free to consider any information it deems rel evant and helpful to a resolution of the issues be fore it. At the discretion of the Tribunal, for ex ample, it may consider hearsay evidence, taking into account the reliability of such evidence in the circumstances.

(8) Control of Case. The President of the Tribunal is authorized to order the removal of any person from the hearing if that person is disruptive, uncooperative, or otherwise interferes with the Tribunal proceedings following a warning. In the case of the removal of the detainee from the Tri bunal hearing, the detainee's Personal Repre sentative shall continue in his role of assisting the detainee in the hearing.

(9) Availability of Witnesses. The President of the Tribunal is the decision authority on reasonable availability of witnesses.

(a) If such witnesses are from within the U.S. Armed Forces, they shall not be considered reasonably available if, as determined by their commanders, their presence at a hear ing would adversely affect combat or sup port operations.

(b) If such witnesses are not from within the U.S. Armed Forces, they shall not be consid ered reasonably available if they decline properly made requests to appear at a hear ing, if they cannot be contacted following reasonable efforts by the CSRT or if secu rity considerations preclude their presence at a hearing. Non-U.S. Government wit nesses will appear before the Tribunal at their own expense. Payment of expenses for U.S. Government witnesses will be coordi nated by the CSRT staff and the witness's organization.

(c) For any witnesses who do not appear at the hearing, the President of the Tribunal may allow introduction of evidence by other means such as e-mail, fax copies, and tele phonic or video-telephonic testimony. Since either video-telephonic or telephonic testi mony is equivalent to in-person testimony, the witness shall be placed under oath and is subject to questioning by the Tribunal.

(10) CSRT Determinations on Availability of Evi dence. If the detainee requests witnesses or evidence deemed not reasonably available, the President of the Tribunal shall document the basis for that decision; to include, for wit nesses, efforts undertaken to procure the pres ence of the witness and alternatives considered or used in place of that witness's in-person tes timony.

(11) Burden of Proof. Tribunals shall determine whether the preponderance of the evidence supports the conclusion that each detainee meets the criteria to be designated as an en emy combatant. There is a rebuttable pre sumption that the Government Evidence, as defined in paragraph H (4) herein, submitted by the Recorder to support a determination that the detainee is an enemy combatant, is genuine and accurate.

(12) Voting. The decisions of the Tribunal shall be determined by a majority of the voting mem bers of the Tribunal. A dissenting member shall prepare a brief summary of the basis for his/her opinion, which shall be attached to the record forwarded for legal review. Only the Tribunal members shall be present during de liberation and voting.

H. Conduct Of Hearing

A CSRT Hearing Guide is attached at enclosure (8) and provides guidance on the conduct of the Tribunal hear ing. The Tribunal's hearing shall be substantially as follows:

(1) The President shall call the Tribunal to order, and announce the order appointing the Tribu nal (see enclosure (7)). The President shall also ensure that all participants are properly sworn to faithfully perform their duties.

(2) The Recorder shall cause a record to be made of the time, date, and place of the hearing, and the identity and qualifications of all partici pants. All proceedings shall be recorded on audiotape except those portions relating to deliberations and voting. Tribunal sessions where classified information is discussed shall be recorded on separate and properly marked audiotapes.

(3) The President shall advise the detainee of the purpose of the hearing, the detainee's opportu nity to present evidence, and of the conse quences of the Tribunal's decision. In cases requiring an interpreter, the President shall ensure the detainee understands these matters through the interpreter.

(4) The Recorder shall present to the Tribunal such evidence in the Government Information as may be sufficient to support the detainee's classification as an enemy combatant, includ ing the circumstances of how the detainee was taken into the custody of U.S. or allied forces (the evidence so presented shall constitute the "Government Evidence"). In the event the Government Information contains evidence to suggest that the detainee should not be desig nated as an enemy combatant, the Recorder shall also separately provide such evidence to the Tribunal.

(5) The Recorder shall present to the Tribunal an unclassified report summarizing the Govern ment Evidence and any evidence to suggest that the detainee should not be designated as an enemy combatant. This report shall have been provided to the detainee's Personal Rep resentative in advance of the Tribunal hearing.

(6) The Recorder shall call the witnesses, if any. Witnesses shall be excluded from the hearing except while testifying. An oath or affirmation shall be administered to each witness by the Recorder. When deemed necessary or appro priate, the Tribunal members can call wit nesses who are reasonably available to testify or request the production of reasonably avail able documentary or other evidence.

(7) The detainee shall be permitted to present evi dence and question any witnesses. The Per sonal Representative shall assist the detainee in obtaining unclassified documents and in ar ranging the presence of witnesses reasonably available and, if the detainee elects, the Per sonal Representative shall assist the detainee in the presentation of information to the Tribu nal. The Personal Representative may, outside the presence of the detainee, present or com ment upon classified information that bears upon the detainee's status if it would aid the Tribunal's deliberations.

(8) When deemed necessary and appropriate by any member of the Tribunal, the Tribunal may recess the Tribunal hearing to consult with the Legal Advisor as to any issues relating to evi dence, procedure, or other matters. The Presi dent of the Tribunal shall summarize on the record the discussion with the Legal Advisor when the Tribunal reconvenes.

(9) The Tribunal shall deliberate in closed session with only voting members present. The Tribu nal shall make its determination of status by a majority vote. The President shall direct a Tribunal member to document the Tribunal's decision on the Combatant Status Review Tri bunal Decision Report cover sheet (enclosure (9)), which will serve as the basis for the Re corder's preparation of the Tribunal record. The unclassified reasons for the Tribunal's de cision shall be noted on the Tribunal Decision Report cover sheet, and should include, as ap propriate, the detainee's organizational mem bership or affiliation with a governmental, mil itary, or terrorist organization (e.g., Taliban, al Qaida, etc.). A dissenting member shall pre pare a brief summary of the basis for his/ her opinion.

(10) Both documents shall be provided to the Re corder as soon as practicable after the Tribu nal concludes.

I. Post-Hearing Procedures

(1) The Recorder shall prepare the record of the hearing and ensure that the audiotape is pre served and properly classified in conformance with security regulations.

(2) The detainee's Personal Representative shall be provided the opportunity to review the re cord prior to the Recorder forwarding it to the President of the Tribunal. The Personal Rep resentative may submit, as appropriate, obser vations or information that he/she believes was presented to the Tribunal and is not included or accurately reflected on the record.

(3) The Recorder shall provide the completed re cord to the President of the Tribunal for signa ture and forwarding for legal review.

(4) In all cases the following items will be attached to the decision which, when complete and signed by the Tribunal President, shall consti tute the record:

(a) A statement of the time and place of the hearing, persons present, and their quali fications;

(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 pre sented to the Tribunal and summaries of all witness testimony. If classified mate rial is part of the evidence submitted or considered by the Tribunal, the report will be properly marked and handled in accordance with all applicable security regulations; and

(e) A dissenting member's summary report, if any.

(5) The President of the Tribunal shall forward the Tribunal's decision and all supporting doc uments as set forth above to the Director, CSRT, acting as Convening Authority, via the CSRT Legal Advisor, within three working days of the date of the Tribunal decision. If additional time is needed, the President of the Tribunal shall request an extension from the Director, CSRT.

(6) The Recorder shall ensure that all audiotapes of the Tribunal hearing are properly marked with identifying information and classification markings, and stored in accordance with all applicable security regulations. These tapes may be reviewed and transcribed as necessary for the legal sufficiency and Convening Au thority reviews.

(7) The CSRT Legal Advisor shall conduct a legal sufficiency review of all cases. The Legal Ad visor shall render an opinion on the legal suffi ciency of the Tribunal proceedings and for ward the record with a recommendation to the Director, CSRT. The legal review shall specif ically address Tribunal decisions regarding reasonable availability of witnesses and other evidence.

(8) The Director, CSRT, shall review the Tribu nal's decision and may approve the decision and take appropriate action, or return the re cord to the Tribunal for further proceedings. In cases where the Tribunal decision is ap proved and the case is considered final, the Director, CSRT, shall so advise the DoD Office of Detainee Affairs, the Secretary of State, and any other relevant U.S. Government agencies.

(9) If the Tribunal determines that the detainee shall no longer be classified as an enemy com batant, and the Director, CSRT, approves the Tribunal's decision, the Director, CSRT, shall forward the written report of the Tribunal's decision directly to the Secretary of the Navy. The Secretary of the Navy shall so advise the DoD Office of Detainee Affairs, the Secretary of State, and any other relevant U.S. Govern ment agencies, in order to permit the Secre tary of State to coordinate the transfer of the detainee with representatives of the detainee's country of nationality for release or other dis position consistent with applicable laws. In these cases the Director, CSRT, will ensure coordination with the Joint Staff with respect to detainee transportation issues.

(10) The detainee shall be notified of the Tribunal decision by the Director, CSRT. If the de tainee has been determined to no longer be designated as an enemy combatant, he shall be notified of the Tribunal decision upon finaliza tion of transportation arrangements or at such earlier time as deemed appropriate by the Commander, JTF-GTMO.

 

Recorder Qualifications, Roles and Responsibilities

A. Qualifications of the Recorder

(1) For each case, the Director, CSRT, shall select a commissioned officer in the grade of 0-3 or higher, preferably a judge advocate, to serve as a Recorder.

(2) Recorders must have at least a TOP SECRET security clearance. The Director shall ensure that only properly cleared officers are as signed as Recorders.

B. Roles of the Recorder

(1) Subject to section C (I), below, the Recorder has a duty to present to the CSRT such evi dence in the Government Information as may be sufficient to support the detainee's classifi cation as an enemy combatant, including the circumstances of how the detainee was taken into the custody of U.S. or allied forces (the "Government Evidence"). In the event the Government Information contains evidence to suggest that the detainee should not be desig nated as an enemy combatant, the Recorder shall also provide such evidence to the Tribu nal.

(2) The Recorder shall have due regard for classi fied information and safeguard it in accordance with all applicable instructions and regula tions. The Recorder shall coordinate with an Information Security Officer (ISO) in the han dling and safeguarding of classified material before, during, and following the Tribunal pro cess.

C. Responsibilities of the Recorder

(1) For each assigned detainee case under review, the Recorder shall obtain and examine the Government Information as defined in para graph E (3) of enclosure (1).

(2) The Recorder shall draft a proposed unclassi fied summary of the relevant evidence derived from the Government Information.

(3) The Recorder shall ensure appropriate coordi nation with original classification authorities for any classified information presented that was used in the preparation of the proposed unclassified summary.

(4) The Recorder shall permit the assigned Per sonal Representative access to the Govern ment Information and will provide the unclas sified summary to the Personal Representative in advance of the Tribunal hearing.

(5) The Recorder shall ensure that coordination is maintained with Joint Task Force-Guantanamo Bay and the Criminal Investigative Task Force to deconflict any other ongoing activities and arrange for detainee movements and security.

(6) The Recorder shall present the Government Evidence orally or in documentary form to the Tribunal. The Recorder shall also answer questions, if any, asked by the Tribunal.

(7) The Recorder shall administer an appropriate oath to the Tribunal members, the Personal Representative, the paralegal/reporter, the in terpreter, and all witnesses (including the de tainee if he elects to testify under oath).

(8) The Recorder shall prepare a Record of Pro ceedings, and, if applicable, a record of the dis senting member's report. The Record of Pro ceedings should include:

(a) A statement of the time and place of the hearing, persons present, and their quali fications;

(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 pre sented to the Tribunal and summaries of all witness testimony. If classified mate rial is part of the evidence submitted or considered by the Tribunal, the report will be properly marked and handled in accordance with applicable security regu lations; and

(e) A dissenting member's summary report, if any.

(9) The Recorder shall provide the detainee's Per sonal Representative the opportunity to review the record prior to the Recorder forwarding it to the President of the Tribunal. The Personal Representative may submit, as appropriate, observations or information that he/she be lieves was presented to the Tribunal and is not included or accurately reflected on the record.

(10) The Recorder shall submit the completed Re cord of Proceedings to the President of the Tribunal who shall sign and forward it to the Director, CSRT via the CSRT Legal Advisor. Once signed by the Tribunal President, the completed record is considered the official re cord of the Tribunal's decision.

(11) The Recorder shall ensure that all audiotapes of the Tribunal hearing are properly marked with identifying information and classification markings, and stored in accordance with appli cable security regulations. These tapes are considered part of the case record and may be reviewed and transcribed as necessary for the legal sufficiency and convening authority re views.

Personal Representative Qualifications, Roles and

Responsibilities

A. Qualifications of Personal Representative

(1) For each case, the Director, CSRT, shall select a commissioned officer serving in the grade of 0-4 or higher to serve as a Personal Represen tative. The Personal Representative shall not be a judge advocate.

(2) Personal Representatives must have at least a TOP SECRET security clearance. The Direc tor shall ensure that only properly cleared offi cers are assigned as Personal Representatives.

B. Roles of the Personal Representative

(1) The detainees were notified of the Tribunal process per reference (a). When detailed to a detainee's case the Personal Representative shall further explain the nature of the CSRT process to the detainee, explain his opportu nity to present evidence and assist the de tainee in collecting relevant and reasonably available information and in preparing and presenting information to the Tribunal.

(2) The Personal Representative shall have due regard for classified information and safeguard it in accordance with all applicable instructions and regulations. The Personal Representative shall coordinate with an Information Security Officer (ISO) in the handling and safeguarding of classified material before, during, and after the Tribunal process.

C. Responsibilities of the Personal Representative

(1) The Personal Representative is responsible for explaining the nature of the CSRT process to the detainee. Upon first contact with the de tainee, the Personal Representative shall ex plain to the detainee that no confidential rela tionship exists or may be formed between the detainee and the Personal Representative. The Personal Representative shall explain the de tainee's opportunity to make a personal ap pearance before the Tribunal. The Personal Representative shall request an interpreter, if needed, to aid the detainee in making such ap pearance and in preparing his presentation. The Personal Representative shall explain to the detainee that he may be subject to ques tioning by the Tribunal members, but he can not be compelled to make any statement or answer any questions. Paragraph D, below, provides guidelines for the Personal Represen tative meeting with the enemy combatant prior to his appearance before the Tribunal.

(2) After the Personal Representative has re viewed the Government Information, had an opportunity to consult with the detainee, and notified the detainee of his opportunity to con test his status, even if the detainee declines to participate as set forth above, the Personal Representative shall complete a Detainee El ection Form (enclosure (5)) and provide this form to the Director, CSRT.

(3) The Personal Representative shall review the Government Evidence that the Recorder plans to present to the CSRT and shall permit the Recorder to review documentary evidence that will be presented to the CSRT on the de tainee's behalf.

(4) Using the guidelines set forth in paragraph D, the Personal Representative shall meet with the detainee, using an interpreter if necessary, in advance of the CSRT. In no circumstance shall the Personal Representative disclose classified information to the detainee.

(5) If the detainee elects to participate in the Tri bunal process, the Personal Representative shall present information to the Tribunal if the detainee so requests. The Personal Represen tative may, outside the presence of the de tainee, comment upon classified information submitted by the Recorder that bears upon the presentation made on the detainee's behalf, if it would aid the Tribunal's deliberations.

(6) If the detainee elects not to participate in the Tribunal process, the Personal Representative shall assist the detainee by presenting infor mation to the Tribunal in either open or closed sessions and may, in closed sessions, comment upon classified information submitted by the Recorder that bears upon the detainee's pre sentation, if it would aid the Tribunal's deliber ations.

(7) The Personal Representative shall answer questions, if any, asked by the Tribunal.

(8) The Personal Representative shall be provided the opportunity to review the record prior to the Recorder forwarding it to the President of the Tribunal. The Personal Representative may submit, as appropriate, observations or information that he/she believes was presented to the Tribunal and is not included or accu rately reflected on the record.

D. Personal Representative Guidelines for Assisting the Enemy Combatant

In discussing the CSRT process with the detainee and completing the Detainee Election Form, the Personal Representative shall use the guidelines provided below to assist the detainee in preparing for the CSRT:

You have already been advised that a Combatant Status Review Tribunal has been established by the United States government to review your clas sification as an enemy combatant.

A Tribunal of military officers shall review your case in "x" number of days [or other time frame as known], and I have been assigned to ensure you understand this process. The Tribunal shall re view your case file, offer you an opportunity to speak on your own behalf if you desire, and ask questions. You also can choose not to appear at the Tribunal hearing. In that case I will be at the hearing and will assist you if you want me to do so.

You will be provided with an opportunity to review unclassified information that relates to your clas sification as an enemy combatant. I will be able to review additional information that is classified. I can discuss the unclassified information with you.

You will be allowed to attend all Tribunal proceed ings, except for proceedings involving deliberation and voting by the members, and testimony or other matters that would compromise U.S. na tional security if you attended. You will not be forced to attend, but if you choose not to attend, the Tribunal will be held in your absence and I will attend.

You will have the opportunity to question wit nesses testifying at the Tribunal.

You will have the opportunity to present evidence to the Tribunal, including calling witnesses to tes tify on your behalf if those witnesses are reason ably available. If a witness is not considered by the Tribunal as reasonably available to testify in person, the Tribunal can consider evidence sub mitted by telephone, written statements, or other means rather than having a witness testify in per son. I am available to assist you in gathering and presenting these materials, should you desire to do so. After the hearing, the Tribunal shall deter mine whether you should continue to be desig nated as an enemy combatant.

I am neither a lawyer nor your advocate, but have been given the responsibility of assisting your preparation for the hearing. None of the informa tion you provide me shall be held in confidence and I may be obligated to divulge it at the hearing.

I am available to assist you in preparing an oral or written presentation to the Tribunal should you desire to do so. I am also available to speak for you at the hearing if you wish that kind of assis tance.

Do you understand the process or have any ques tions about it?

The Tribunal is examining one issue: whether you are an enemy combatant against the United States or its coalition partners. Any information you can provide to the Tribunal relating to your activities prior to your capture is very important in answer ing this question. However, you may not be com pelled to testify or answer questions at the Tribu nal hearing.

Do you want to participate in the Tribunal process and appear before the Tribunal?

Do you wish to present information to the Tribu nal or have me present information for you?

Is there anyone here in the camp or elsewhere who can testify on your behalf regarding your cap ture or status?

Do you want to have anyone else submit any infor mation to the Tribunal regarding your status? [If so,] how do I contact them? If feasible and you can show the Tribunal how the information is rele vant to your case, the Tribunal will endeavor to arrange for evidence to be provided by other means such as mail, e-mail, faxed copies, or tele phonic or video-telephonic testimony.

Do you have any questions?

36. Combatant Status Review Tribunal

37. Notice to Detainees*

You are being held as an enemy combatant by the United States Armed Forces. An enemy combatant is 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 part ners. The definition includes any person who has com mitted a belligerent act or has directly supported such hostilities.

The U.S. Government will give you an opportunity to contest your status as an enemy combatant. Your case will go before a Combatant Status Review Tribunal, composed of military officers. This is not a criminal trial and the Tribunal will not punish you, but will determine whether you are properly held. The Tribunal will pro vide you with the following process:

1. You will be assigned a military officer to assist you with the presentation of your case to the Tri bunal. This officer will be known as your Per sonal Representative. Your Personal Represen tative will review information that may be rele vant to a determination of your status. Your Per sonal Representative will be able to discuss that information with you, except for classified infor mation.

2. Before the Tribunal proceeding, you will be given a written statement of the unclassified factual ba sis for your classification as an enemy combatant.

3. You will be allowed to attend all Tribunal pro ceedings, except for proceedings involving delib eration and voting by the members, and testi mony or other matters that would compromise U.S. national security if you attended. You will not be forced to attend, but if you choose not to attend, the Tribunal will be held in your absence. Your Personal Representative will attend in ei ther case.

4. You will be provided with an interpreter during the Tribunal hearing if necessary.

5. You will be able to present evidence to the Tribu nal, including the testimony of witnesses. If those witnesses you propose are not reasonably available, their written testimony may be sought. You may also present written statements and other documents. You may testify. before the Tribunal but will not be compelled to testify or answer questions.

As a matter separate from these Tribunals, United States courts have jurisdiction to consider petitions brought by enemy combatants held at this facility that challenge the legality of their detention. You will be notified in the near future what procedures are available should you seek to challenge your detention in U.S. courts. Whether or not you decide to do so, the Combat ant Status Review Tribunal will still review your status as an enemy combatant.

If you have any questions about this notice, your Per sonal Representative will be able to answer them.

[*Text of Notice translated, and delivered to detainees 12-14 July 2004]

38.

Sample Detainee Election Form

Date/Time:

ISN#:

Personal Representative:

[Name/Rank]

Translator Requires? Language?

CSRT Procedures Read to Detainee or Written Copy Read by Detainee?

Detainee Election:

_ Wants to Participate in Tribunal

_ Wants Assistance of Personal Representative

_ Affirmatively Declines to Participate in Tribunal

_ Uncooperative or Unresponsive

Personal Representative Comments:

 

 

 

 

 

Personal Representative

SAMPLE NOMINATION QUESTIONNAIRE

Department of Defense Director, Combatant Status Review Tribunals

[Seal Omitted]

As a candidate to become a Combatant Status Review Tribunal member, Recorder, or Personal Representa tive, please complete the following questionnaire and provide it to the Director, Combatant Status Review Tribunal (CSRT). Because of the sensitive personal in formation requested, no copy will be retained on file outside of the CSRT.

 

1. Name (Last, First MI) _______ 2. Rank/Grade

3. Date of Rank ______4. Service 5. Active Duty Service Date

6. Desig/MOS 7. Date Current Tour Began:

8. Security Clearance Level 9. Date of clearance:

10. Military Award/ Decorations:

 

11. Current Duty Position _____ 12. Unit:

13. Date of Birth _____ 14. Gender ____ 15. Race or Ethnic Origin

16. Civilian Education. College/Vocational/Civilian Pro fessional School:

17. Date graduated or dates attended (and number of years), school, location, degree/major:

18. Military Education. Dates attended, school/course title.

 

 

19. Duty Assignments. Last four assignments, units, and dates of assignments.

 

 

20. Have you had any relative or friend killed or wounded in Afghanistan or Iraq? Explain.

 

 

 

21. Have you had any close relative or friend killed, wounded, or impacted by the events of September ll, 2001? _______Explain.

 

 

22. Have you ever been in an assignment related to en emy prisoners of war or enemy combatants, to include the apprehension, detention, interrogation, or previous determination of status of a detainee at Guantanamo Bay? Explain.

23. Do you believe you may be disqualified to serve as a Tribunal member, Recorder, or Personal Representa tive for any reason? Explain.

24. Your name or image as well as information related to the enemy combatant may be released to the public in conjunction with the Combatant Status Review Tribunal process. Could this potential public affairs release af fect your ability to objectively serve in any capacity in the Tribunal process? Y/N _____Explain.

 

 

 

SIGNATURE OF OFFICER: DATE:

Approve ____ Disapprove _____ Director, CSRT

 

Sample Appointment Letter for Combatant Status Review Tribunal Panel

[Seal Omitted] ser

Department of Defense

Director, Combatant Status Review Tribunals

From: Director, Combatant Status, Review Tribu nals

Subj: APPOINTMENT OF COMBATANT STA TUS REVIEW TRIBUNAL

Ref: (a) Convening Authority Appointment Letter of 7 July 2004

By the authority given to me in reference (a), a Combat ant Status Review Tribunal established by DCN XXX" Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guan tanamo Bay Naval Base, Cuba" is hereby convened. It shall hear such cases as shall be brought before it with out further action of referral or otherwise.

The following commissioned officers shall serve as members of the Tribunal:

MEMBERS:

XXX, 999-99-9999; President*

YYY, 999-99-9999; Member*

ZZZ, 999-99-9999; Member*

J.M. MCGARRAH

RADM, CEC, USNR,

[* The Order should note which member is the Judge Advocate required to be on the Tribunal.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

39. Combatant Status Review Tribunal Hearing Guide

RECORDER: All rise. (The Tribunal enters)

[In Tribunal sessions where the detainee has waived participation, the Tribunal can generally omit the ital icized portions.]

PRESIDENT: This hearing shall come to order.

RECORDER: This Tribunal is being conducted at [Time/Date] on board Naval Base Guantanamo Bay, Cuba. The follow ing personnel are present:

, President

, Member

, Member

, Personal Representative

, Interpreter

, Reporter/ Paralegal, and

______________, Recorder

[Rank/Name] is the Judge Advo cate member of the Tribunal.

PRESIDENT: The Recorder will be sworn. Do you, (name and rank of the Re corder) swear (or affirm) that you will faithfully perform the duties assigned in this Tribunal (so help you God)?

RECORDER: I do.

PRESIDENT: The reporter/paralegal will now be sworn.

RECORDER: Do you (name and rank of re porter/paralegal) swear or affirm that you will faithfully discharge your duties assigned in this tribu nal?

REPORTER/

PARALEGAL: I do.

PRESIDENT: The interpreter will be sworn. [If needed for witness testimony when detainee not present]

RECORDER: Do you swear (or affirm) that you will faithfully perform the duties of interpreter in the case now hearing (so help you God)?

INTERPRETER: I do.

PRESIDENT: We will take a brief recess while the detainee is brought into the room.

RECORDER: All Rise.

[Tribunal members depart, followed by the Recorder, Personal Representative, Interpreter, and Court Re porter. The detainee is brought into the room. All par ticipants except the Tribunal members return to the Tribunal room.]

RECORDER: All Rise. [The Tribunal members enter the room.]

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: This hearing will come to order. You may be seated.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: (NAME OF DETAINEE), this Tri bunal is convened by order of the Director, Combatant Status Review Tribunals under the provisions of his Order of XX July 2004. It will determine whether you [or Name of Detainee] meet the criteria to be designated as an enemy combatant against the United States or its al lies or otherwise meet the criteria to be designated as an enemy com batant.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: This Tribunal shall now be sworn. All rise.

INTERPRETER: (TRANSLATION OF ABOVE).

[All persons in the room stand while Recorder adminis ters the oath. Each voting member raises his or her right hand as the Recorder administers the following oath]

RECORDER: Do you swear (affirm) that you will faithfully perform your duties as a member of this Tribunal; that you will impartially examine and inquire into the matter now before you ac cording to your conscience, and the laws and regulations provided; that you will make such findings of fact and conclusions as are supported by the evidence presented; that in de termining those facts, you will use your professional knowledge, best judgment, and common sense; and that you will make such findings as are appropriate according to the best of your understanding of the rules, regulations, and laws govern ing this proceeding, and guided by your concept of justice (so help you God)?

MEMBERS OF

TRIBUNAL: I do.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: The Recorder will now administer the oath to the Personal Represen tative.

INTERPRETER: (TRANSLATION OF ABOVE).

[The Tribunal members lower their hands but remain standing while the following oath is administered to the Personal Representative:]

RECORDER: Do you swear (or affirm) that you will faithfully perform the duties of Personal Representative in this Tri bunal (so help you God)?

PERSONAL REP-

RESENTATIVE: I do.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: Please be seated. The Reporter, Re corder, and Interpreter have pre viously been sworn. This Tribunal hearing shall come to order.

[All personnel resume their seats.]

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: (NAME OF DETAINEE), you are hereby advised that the following applies during this hearing:

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: You may be present at all open ses sions of the Tribunal. However, if you become disorderly, you will be removed from the hearing, and the Tribunal will continue to hear evi dence.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: You may not be compelled to testify at this Tribunal. However, you may testify if you wish to do so. Your testimony can be under oath or un sworn.

INTERPRETER: (TRANSLATION OF ABOVE).

 

PRESIDENT: You may have the assistance of a Personal Representative at the hearing. Your assigned Personal Representative is present.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: You may present evidence to this Tribunal, including the testimony of witnesses who are reasonably avail able. You may question witnesses testifying at the Tribunal.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: You may examine documents or statements offered into evidence other than classified information. However, certain documents may be partially masked for security reasons.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: Do you understand this process?

INTERPRETER: (TRANSLATION OF ABOVE)

PRESIDENT: Do you have any questions con cerning the Tribunal process?

INTERPRETER: (TRANSLATION OF ABOVE)

[In Tribunal sessions where the detainee has waived participation substitute:

 

 

PRESIDENT: [Rank/Name of Personal Represen tative] you have advised the Tribu nal that [Name of Detainee] has el ected to not participate in this Tri bunal proceeding. Is that still the situation?

PERSONAL REP-

RESENTATIVE: Yes/No. [Explain] .

PRESIDENT: Please provide the Tribunal with the Detainee Election Form mark ed as Exhibit D-a.]

[Presentation of Unclassified Information by Recorder and Detainee or his Personal Representative. Recorder evidence shall be marked in sequence R-1, R-2, etc. while evidence presented for the detainee shall be marked in sequence D-a, D-b, etc.]

[The Interpreter shall translate as necessary during this portion of the Tribunal.]

PRESIDENT: Recorder, please provide the Tribu nal with the unclassified evidence.

RECORDER: I am handing the Tribunal what has previously been marked as Exhibit R-1, the unclassified summary of the evidence that relates to this de tainee's status as an enemy combat ant. A translated copy of this ex hibit was provided to the Personal Representative in advance of this hearing for presentation to the de tainee. In addition, I am handing to the Tribunal the following unclassi fied exhibits, marked as Exhibit R- 2 through R-x. Copies of these Ex hibits have previously been pro vided to the Personal Representa tive.

PRESIDENT: Does the Recorder have any witnes ses to present?

RECORDER: Yes/no.

If witnesses appear before the Tribunal, the Recorder shall administer an appropriate oath:

Form of Oath for a Muslim

Do you [Name], in the Name of Allah, the Most Compas sionate, the Most Merciful, swear that your testimony before this Tribunal will be the truth?

Form of Oath or Affirmation for Others

Do you (swear) (affirm) that the statements you are about to make shall be the truth, the whole truth, and nothing but the truth (so help you God)?

INTERPRETER: (TRANSLATION AS NECES SARY)

[Witnesses may be questioned by the Tribunal mem bers, the Recorder, the Personal Representative, or the detainee.]

RECORDER: Mr./Madam President, I have no further unclassified information for the Tribunal but request a closed Tribunal session at an appropriate time to present classified informa tion relevant to this detainee's sta tus as an enemy combatant.

PRESIDENT: [Name of detainee] (or Personal Representative), do you (or does the detainee) want to present infor mation to this Tribunal?

[If detainee not present, Personal Representative may present information to the Tribunal.]

INTERPRETER: (TRANSLATION OF ABOVE).

[If the detainee elects to make an oral statement:]

PRESIDENT: [Name of detainee] would you like to make your statement under oath?

INTERPRETER: (TRANSLATION OF ABOVE).

[After statement is completed:]

PRESIDENT: [Name of detainee] does that con clude your statement?

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: [Determines whether Tribunal members, Recorder, or Personal Representative have any questions for detainee.]

PRESIDENT: [Name of detainee] do you have any other evidence to present to this Tribunal?

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: All unclassified evidence having been provided to the Tribunal, this concludes this Tribunal session.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: (Name of detainee), you shall be notified of the Tribunal decision upon completion of the review of these proceedings by the convening authority in Washington, D.C.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: If the Tribunal determines that you should not be classified as an en emy combatant, you will be re leased to your home country as soon as arrangements can be made.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: If the Tribunal confirms your clas sification as an enemy combatant you shall be eligible for an Admin istrative Review Board hearing at a future date.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: That Board will make an assess ment of whether there is continued reason to believe that you pose a threat to the United States or its allies in the ongoing armed conflict against terrorist organizations such as al Qaida and its affiliates and supporters or whether there are other factors bearing upon the need for continued detention.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: You will have the opportunity to be heard and to present information to the Administrative Review Board. You can present informa tion from your family that might help you at the Board. You are en couraged to contact your family as soon as possible to begin to gather information that may help you.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: A military officer will be assigned at a later date to assist you in the Administrative Review Board pro cess.

INTERPRETER: (TRANSLATION OF ABOVE).

PRESIDENT: This Tribunal hearing is adjourned.

 

RECORDER: All Rise. [If moving into Tribunal session in which classified material will be discussed add:] This Tribu nal is commencing a closed session. Will everyone but the Tribunal members, Personal Representative, and, Reporter/Paralegal please leave the Tribunal room.

PRESIDENT: [When Tribunal room is ready for closed session.] You may be seated. The Tribunal for [Name of de tainee] is now reconvened without the detainee, being present to pre vent a potential compromise of na tional security due to, the classified nature of the evidence to be consid ered. The Recorder will note the date and time of this session for the record.

[Closed Tribunal Session Commences, as necessary, with only properly cleared personnel present. Presenta tion of classified information by Recorder and, when appropriate, Personal Representative. Recorder evi dence shall be marked in sequence R-1, R-2, etc. while evidence presented for the detainee shall be marked in sequence D-a, D-b, etc. All evidence will be properly marked with the security classification.]

PRESIDENT: This Tribunal session is adjourned and the Tribunal is closed for delib eration and voting.

RECORDER: Notes time and date when Tribunal closed.

 

[CLASSIFICATION]

40. Combatant Status Review Tribunal

41. Decision Report Cover Sheet

[CLASSIFICATION]: UNCLASSIFIED Upon Re moval of Enclosure(s) (2) [and (3)]

TRIBUNAL PANEL:

ISN #: DATE:

Ref: (a) Convening Order of XX YYY 2004

(b) CSRT Implementation Directive of XX July 2004

(c) DEPSECDEF Memo of 7 July 2004

Encl: (1) Unclassified Summary of Basis for Tribunal Decision (U)

(2) Classified Summary of Basis for Tribunal Decision (U)

(3) Copies of Documentary Evidence Presented (U)

This Tribunal was convened by references (a) and (b) to make a determinations to whether the detainee meets the criteria to be designated as an enemy combatant as defined in reference (c).

The Tribunal has determined that he (is) (is not) desig nated as an enemy combatant as defined in reference (c).

[If yes] In particular the Tribunal finds that this de tainee is a member of, or affiliated with, (al Qaida, Taliban, other), as more fully discussed below and in the enclosures.

Enclosure (1) provides an unclassified account of the basis for the Tribunal's decision, as summarized below. A detailed account of the evidence considered by the Tribunal and its findings of fact are contained in enclo sure (2).

 

 

 

 

(Rank, Name) President

1 The Secretary of the Navy attached to his memorandum three "en closures," to which we refer below in our citations to the CSRT proce dures as "E-1," "E-2," and "E-3."

2 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 pre paration of the Tribunal record."

3 Insofar as the task of gathering Government Information was per formed 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 al leges, a panel reviewing the merits of a CSRT status determination will be in a position to resolve whether the procedure followed was "consis tent with the standards and procedures specified by the Secretary of Defense for [a CSRT]." DTA § 1005(e)(2)(C)(i).

4 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).

5 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 Gov ernment 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.

6 We also held the record on review includes any evidence submitted to the Tribunal by the detainee or his Personal Representative, 501 F.3d at 186, 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.

7 We express no view as to whether any of the information the Gov ernment is seeking is not "reasonably available."

8 The Government tells us "there is no readily accessible set of Gov ernment 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 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 Tri bunals 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 con vened 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 extent the Government now suggests that certain informa tion 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 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.

12 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 Record of Proceedings constitutes the record on review for reasons stated in the panel's two opinions. See Bismullah I, 501 F.3d at 18486; Bismullah II, 503 F.3d at 139-41.

13 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").

14 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 concur ring 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.

15 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).

16 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 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 con text 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 Infor mation if in his view it was "duplicative" or "if it did not relate to a specific allegation being made against the detainee").

17 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.

18 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).

19 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 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.html, 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.

20 The Supreme Court left open the question whether the Govern ment 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)).

21 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) (Bis mullah 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. Never theless, as set forth hereinbelow, matters remain that were unad dressed at the panel level-matters that may be determinative and should at least be heard and weighed by all of us.

22 Bismullah I does note that "the court cannot, as the DTA charges us, consider whether a preponderance of the evidence supports the Tri bunal'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.

23

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]ap tivity 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 mea-

sure'" (citations omitted))).

24 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).

25 I leave aside this Court's likely burden if we do not consider en banc the scope of the Government Information disclosable to the de tainees' 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.

26 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 Bis mullah 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 Boume diene parties must submit. Nonetheless we do the Supreme Court no favor by not fully considering potentially determinative matters, includ ing 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 argu ment-any of the issues raised by the three dissents from the en banc denial.

27 The statute provides that the "record to be filed in the court of ap peals . . . 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)."

28 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 documen tary 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).

29 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 Tri bunals are sui generis and for that reason are exempt from the require ments 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 wri ter'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 Tribunal.

30 Under Defense Department regulations, "Government Informa tion" 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). "Gov ernment 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 preponder ance of the evidence supported the conclusion of the Tribunal, cannot be ascertained without consideration of all the Government Informa tion." 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 ration ale could not hold and the Chief Judge seems to have abandoned it. In legal proceedings before courts and other adjudicative bodies, the clas sic 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, Presump tions 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 con clusion be so supported. DTA § 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 regula tion 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 infor mation the Tribunal never saw.

31 The government predicts that for each detainee, the record en visioned by the panel will consist of "hundreds of thousands[] of docu ments." Pet. for Rehearing 10.

32 As a corollary, reconvening a CSRT, as the panel proposes, Bis mullah II, 503 F.3d at 141, will only postpone the issue, because the abstract set of Government Information will have no relation to that proceeding either. The court will still review whether the Recorder for the new panel gathered all reasonably available information. Bis mullah I, 501 F.3d at 185; Stmt. of Ginsburg, C.J., at 5-6.

APPENDIX G

Department of Defense

Office for the Administrative Review of

the Detention of Enemy Combatants (OARDEC)

at U.S. Naval Base Guantanamo Bay, Cuba

1010 Defense Pentagon, Washington, D.C. 20301-1010

 

OARDECINST 5421.1

7 May 2007

[Seal Omitted]

OARDEC INSTRUCTION 5421.1

 

Subj: PROCEDURE FOR REVIEW OF "NEW EVIDENCE" RELATING TO ENEMY COMBATANT (EC) STATUS

 

Ref: (a) Detainee Treatment Act of 2005 (DTA)

(b) Implementation of Combatant Status Re view Tribunal Procedures for Enemy Com batants Detained at U.S. Naval Base Guan tanamo Bay, Cuba dated July 14, 2006

(c) Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo Bay, Cuba dated July 14, 2006

1. Purpose: This regulation creates a unified procedure for the submission of new evidence relating to a Guan tanamo detainee's EC status, including those who do not receive ARB hearings.

 

a. Section 105(a)(3) of reference (a) provides that Combatant Status Review Tribunal (CSRT) and Admin istrative Review Board (ARB) procedures, outlined in references (b) and (c), for individuals detained by the Department of Defense at Guantanamo "shall provide for periodic review of any new evidence that may be come available relating to the enemy combatant status of a detainee."

b. Enclosure (13) of reference (c) provides that new information relating to the enemy combatant status of a Guantanamo detainee presented at an ARB shall be brought to the attention of the Deputy Secretary of De fense (DSD). Under that memorandum, the Department reviews new evidence and may either direct that a CSRT convene to reconsider the basis of the detainee's EC status in light of the new information, or determine that the new information does not warrant review by a CSRT.

c. Certain detainees (such as those previously approved for transfer/release or those subject to mili tary commission charges) are not provided ARB hear ings.

2. Cancellation: This is the first instruction in this series; no cancellation clause will be used.

3. Initiation of a "New Evidence Review": A de tainee or a person lawfully acting on the detainee's behalf can submit evidence that is new and relates to the detainee's EC status by mailing it to:

Director, OARDEC

1010 Defense Pentagon

Room 3A730

Washington, DC 20301-1010.

 

a. If any such evidence is submitted by a detainee to his ARB, it will be forwarded to the above office, con sistent with the DSD Memorandum on Revised Imple mentation of Administrative Review Procedures.

 

b. If an individual submitting information on a detainee's behalf has had access to classified material, it is the responsibility of that individual to follow all appli cable information security regulations with respect to the handling of classified or otherwise protected infor mation. These procedures do not absolve those individu als of that responsibility.

 

4. Definition of "New Evidence"

 

a. For purposes of these procedures, "new evi dence" must meet the following two criteria:

(1) It must be factual information that was not previously presented to the detainee's CSRT, and

(2) It must be information that is material to the factual question of whether the detainee is an EC. Information will be deemed "material" if it creates a substantial likelihood that the "new evidence" would have altered the CSRT's prior determination that the detainee is an enemy combatant, as that term is defined by Deputy Secretary of Defense Order of July 7, 2004, and the Deputy Secretary of Defense Memorandum of July 14, 2006.

b. New "evidence" and "information" does not in clude legal argument or factual assertions not supported through documentation or witness testimony. For ex ample, documents that merely claim the detainee is not an enemy combatant and/or that primarily focus on the legality of his detention or the propriety of his CSRT/ ARB process will not be reviewed under these proce dures. Information that contends the detainee is not an enemy combatant and that contains photographs, affida vits, videotaped witness statements or other supporting exhibits may be considered new evidence or information, as would documentation of investigative results.

 

5. Conduct of a "New Evidence Review"

 

a. Every effort will be made to make a decision regarding whether or not to convene a new CSRT within 90 days of the "new evidence" being received at the above address.

b. If the evidence is found to meet the "new evi dence" standard, the DSD will direct that a CSRT con vene to reconsider the basis of the detainee's EC status in light of the new information. This CSRT will follow the procedures found in the "Implementation of Com batant Status Review Tribunal Procedures for Enemy Combatants Detained at U.S. Naval Base Guantanamo, Cuba."

c. If the evidence does not meet the "new evi dence" standard, a new CSRT will not be convened.

d. The decision to convene a CSRT to reconsider the basis of the detainee's EC status in light of "new evi dence" is a matter vested in the unreviewable discretion of the DSD.

 

/s/ FRANK SWEIGART

FRANK SWEIGART

Director, OARDEC

 

2.

APPENDIX H

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

No. 06-1197

HAJI BISMULLAH, ET AL., PETITIONER

v.

ROBERT M. GATES, RESPONDENT

 

No. 06-1397

HUZAIFA PARHAT, ET AL., PETITIONER

v.

ROBERT M. GATES, RESPONDENT

 

DECLARATION OF GENERAL MICHAEL V. HAYDEN, USAF, DIRECTOR, CENTRAL INTELLIGENCE AGENCY

 

I, MICHAEL V. HAYDEN, hereby declare and state:

1. I am the Director of the Central Intelligence Agency (CIA) and have served in this capacity since 30 April 2006. In my capacity as Director, I lead the CIA and manage the Intelligence Community's human intelli gence and open source collection programs on behalf of the Director of National Intelligence (DNI). I have held a number of positions in the Intelligence Community, including Principal Deputy Director of National Intelli gence, from April 2005 to April 2006; Director, National Security Agency/Chief, Central Security Service (NSA/ CSS), Fort George G. Meade, Maryland, from March 1999 to April 2005; Commander of the Air Intelligence Agency and Director of the Joint Command and Control Warfare Center, both headquartered at Kelly Air Force Base, Texas, from January 1996 to September 1997; and Director, Intelligence Directorate, U.S. European Com mand, Stuttgart, Germany, from May 1993 to October 1995.

2. I am a four-star general in the United States Air Force and have held senior staff positions at the Penta gon, the National Security Council, and the U.S. Em bassy in Sofia, Bulgaria, as well as serving as Deputy Chief of Staff for United Nations Command and U.S. Forces Korea. I entered active duty in 1969 as a distin guished graduate of the Reserve Officer Training Corps program.

3. I make the following statements based upon my personal knowledge and information provided to me in my official capacity.

4. This unclassified declaration is submitted in sup port of the Government's petition for rehearing. It de scribes for the Court the damage to the national security that reasonably can be expected to result from compli ance with the Court's 20 July 2007 decision.

I. Purpose Of This Declaration

A. The Bismullah Decision

5. Through the exercise of my official duties, I have been advised of this litigation. I am familiar with the Court's 20 July 2007 decision in this matter. Among other things, I understand that the Court held that the "record on review" under the Detainee Treatment Act (DTA) is not limited to the Record of Proceedings that was presented to, and considered by, the Combatant Status Review Tribunal (CSRT) in making its enemy combatant determinations. Rather, I understand that the Court held that the "record on review" is comprised of all information the CSRT is "authorized to obtain and consider" under DoD regulations, which is defined as "such reasonably available information in the possession of the U.S. Government bearing on the issue whether the detainee meets the criteria to be designated as an enemy combatant."

6. I also understand that the Court's definition of "government information" is binding on all appeals of CSRT determinations brought pursuant to the Detainee Treatment Act (DTA), not simply this case. I am in formed that if most detainees appeal their CSRT deter mination, a fair reading of the Court's decision will re quire review and potential discovery to the Court and detainee counsel of a vast number of the CIA's most sen sitive classified documents on counterterrorism intelli gence and operations. Included in this total are tens of thousands of highly classified documents.1

7. I also am familiar with the U.S. Government's petition for rehearing en banc that is being filed with this declaration. I understand that the Government's petition argues that the "record on review" is properly limited to the evidence that was actually presented to, and considered by, the CSRT in making its enemy com batant determination, as opposed to the voluminous group of documents that the CSRT was "authorized to obtain and consider" under DoD procedures.

8. This unclassified declaration is submitted in sup port of the Government's petition for rehearing en banc. This declaration explains, to the greatest extent possible on the public record, the extremely grave damage to the national security that reasonably could be expected if the "Government Information" is provided to the Court and detainee counsel.

9. The details explaining the full scope of the dam age to the national security are classified. Therefore, they are described in my classified declaration, which will be submitted to the Court in camera and ex parte. Because of its sensitivity, the classified declaration will be delivered to a DOJ Security Officer who will assist in its delivery.

B. CIA Information at Issue

10. The breadth of discovery apparently required by the Court's decision will include information about virtu ally every weapon in the CIA's arsenal to combat the terrorist threat to the United States. The documents will disclose clandestine intelligence activities, including counterterrorism covert action programs, information provided by sensitive sources, and collection activities.

11. First, the majority of the documents that appear to be discoverable under the Court's definition of "gov ernment information" relate to the covert action of the CIA. These documents disclose the classified details of the CIA's covert action programs and also would reveal the CIA's sensitive sources and methods.

12. Second, much of the information that is poten tially discoverable was provided to the CIA by foreign intelligence services or discloses the specific assistance provided by the CIA's foreign partners in the global was on terror. If the CIA is compelled to comply with the Court's decision, the CIA will be obligated to inform its foreign liaison partners that a court order requires that the CIA provide this information to the Court and de tainee counsel. There is a high probability that certain liaison services will decrease their cooperation with the CIA because of the extent that their information has become enmeshed in U.S. legal proceedings.

13. Third, some information discoverable under the Court's decision originated with, or pertains to, clandes tine human intelligence sources. These individuals pro vide information or assistance to the CIA only upon the condition of absolute and lasting secrecy. Revealing this information-even to the Court or to cleared coun sel-would expressly violate these agreements, and would irreparably harm the CIA's ability to utilize cur rent sources and to recruit sources in the future.

14. Finally, the documents include a large amount of information about the CIA's technical intelligence collec tion abilities and activities. Disclosure of the nature and extent of these activities would significantly diminish the CIA's ability to gather foreign intelligence.

C. Damage to the National Security

15. I recognize that the Court has not ordered that any classified information be publicly disclosed. Never theless, exceptionally grave damage to the national se curity reasonably can be expected to result from the Court's decision for three reasons.

16. First, certain information, such as that provided by clandestine sources, is of a nature that even disclo sure only to the Court and detainee counsel is reason ably likely to result in damage to the national security. This is so because information provided by sources can not be disclosed to the Court and detainee counsel with violating the CIA's assurances of confidentiality. If this information were disclosed outside intelligence channels, including to the Court or to detainee counsel, some sources would need to be informed and, as a result, they would restrict or altogether cease cooperation with the CIA. This outcome would severely restrict the U.S. Gov ernment's ability to collect intelligence and wage the war on terrorism.

17. Second, I am advised that over 100 appeals have been filed under the provisions of the DTA. I also un derstand that detainees typically are represented by several attorneys. With over 300 detainees at Guan tanamo Bay, Cuba, it appears that compliance with the Court's decision will require disclosure to several hun dred-perhaps more than one thousand-attorneys who are not employees of the United States government, who are not trained in handling classified information, and whose interest in protecting national security conflicts with their obligations to their clients. With so many untrained individuals allowed access to such sensitive information, I believe that unauthorized disclosures, whether intentional or inadvertent, are not only possible but inevitable. Suffice it to say here that the regulations controlling access to classified information recognize that limiting the number of people with access is a nec essary step in safeguarding sensitive information. The Court's decision would eviscerate the U.S. Government's carefully conceived plan to keep its mostly highly sensi tive information compartmentalized and would increase the likelihood of public disclosure.

18. Finally, because of the kind of information at issue in these cases, Department of Defense teams will have to review every potentially discoverable document to determine if it contains information relevant to a de tainee's status as an enemy combatant, and then CIA subject matter experts must conduct a line-by-line re view to determine whether or not the document can be provided to detainee counsel or if it must be provided only to the Court. The burden of searching for, collect ing, and reviewing such a number of documents will di vert CIA counterterrorism personnel from their pri mary goal of protecting the country from terrorist at tack.

II. Conclusion

19. I have described, to the greatest extent possible on the public record, the bases for my judgment that the Court's decision reasonably can be expected to cause exceptionally grave damage to the national security. For a complete description of my determination of my determination, I respectfully refer the Court to my clas sified declaration, which will be submitted in camera and ex parte, filed with the Government's petition.

* * * * *

I hereby declare under penalty of perjury that the foregoing is true and correct.

Executed this 6th day of September, 2007.

 

/s/ MICHAEL V. HAYDEN

MICHAEL V. HAYDEN, USAF

GENERAL MICHAEL V. HAYDEN, DIRECTOR CENTRAL INTELLI GENCE AGENCY

 

 

 

APPENDIX I

 

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

Nos. 06-1197, 06-1397

HAJI BISMULLAH, ET AL., PETITIONERS

v.

ROBERT M. GATES, RESPONDENT

 

HUZAIFA PARHAT, ET AL., PETITIONERS

v.

ROBERT M. GATES, RESPONDENT

 

DECLARATION OF ROBERT S. MUELLER, III

DIRECTOR, FEDERAL BUREAU OF

INVESTIGATION

 

I, Robert S. Mueller, III, hereby declare the follow ing:

1. (U) I am the Director of, the Federal Bureau of Investigation (FBI), United States Department of Justice, a component of the Executive Depart ment or the United States Government. I am res ponsible for, among other things, the national se curity operations of the FBI, including the FBI's Counterterrorism Division.

Derived From: MULTIPLE SOURCES

Declassify on: 20320907

2. (U) The matters stated herein are based upon my personal knowledge, my review and consideration of documents and information available to me in my official capacity, information furnished by Special Agents and other employees of the FBI, and my conclusions have been reached in accor dance therewith.

3. (U) I am generally familiar with the Court's July 20, 2007 decision and order in this matter. I sub mit this declaration in support of the govern ment's Petition for Rehearing and suggestion for Rehearing En Banc.

4. (U) For the Court's convenience, I have divided this declaration into three parts. Part I describes the serious burdens the Court's decision will, if not appropriately modified, place upon the coun terterrorism resources and operations of the FBI. Part II describes types of highly sensitive classified FBI information and techniques at is sue. Part III discuses the protective order. These sections will demonstrate that FBI compli ance with the Court's order could reasonably be expected to cause serious damage to the national security and, therefore, should be reconsidered.

Part I. (U) The Burden on the FBI's Counterterrorism Resources and Operations

5. (U) For several reasons, the requirement that the FBI disclose, even to properly cleared detainee counsel, all of the information in its possession that the Combatant Status Review Tribunals (CSRT) were authorized to obtain and consider would cause serious damage to the national se curity.

6. (U) In order to comply with the Order, the FBI would have to search for and disclose potentially hundreds of thousands of documents. The FBI has two ways to search for responsive documents: one way provides access to all documents that have been uploaded into the FBI's Automated Case Support (ACS), the electronic system which has the most complete repository of FBI mater ials, but is extraordinarily time consuming and would likely have a negative impact on the use of ACS during the search periods; and the second way provides access only to a subset of docu ments that have been uploaded into ACS but could be done in a reasonable period of time with out crippling the system.

7. (U) ACS is an old mainframe computer system and searches of its data must be "literal." For example, in order to search for documents relat ing to a particular detainee, separate searches must be run for each spelling variant of each name (first, middle, last and alias). Additional searches must be run for every combination of names (e.g., first-last, first-middle-last, alias-last, last-first, etc.). Each of these searches is run against the approximately 27 million documents in the electronic files.

8. (S)

9. (U) Searches like ones conducted to find the Par acha documents encumber ACS because all of the electronic files of the FBI are being searched for the various terms. These searches must take place after normal business hours and on week ends so as not to impair the FBI's electronic re cord search capacity thereby adversely affect the ability of other FBI employees to use ACS in sup port of the FBI's primary missions.2

10. (U) In order to meet Court-imposed deadlines, ACS searches would have to be run around the clock from multiple. computers. Even with such extraordinary measures, the FBI would still not be able to meet the Court's deadlines. ACS is an operational system used to support everything from white-collar and violent crime to counter- espionage and counterterrorism investigations. Performing multiple simultaneous searches of the nature that would be required to support this or der may have a negative impact on the overall performance of ACS.

11. (U) As an alternative to searching ACS, the FBI could conduct these searches through its Investi gative Data Warehouse (IDW) system. IDW is a "warehouse of information that provides a single- access repository for information utilizing exten sive data sources, including those located in FBI files and information from sources outside of the FBI. IDW is populated with approximately two- thirds of the information that is contained in ACS. As is pertinent to these cases, IDW does not contain information from ACS that has re stricted access, such as tax records and grand jury materials. Because counterterrorism re cords are generally not restricted, however, IDW searches are likely to reveal most, if not all of the documents that would be revealed through ACS searches. If IDW were an acceptable route through which to conduct these searches, the FBI could conduct ACS searches only when there is some reason to believe that information pertain ing to a particular detainee is in restricted files.

12. (U) Unlike ACS, IDW can be efficiently used to conduct batch (or bulk) data searches. Those searches can be conducted in a more condensed time frame and will have no affect on ACS, be cause the searches are not run against the ACS mainframe computer system. There would also be no adverse effects on searches and other tasks being performed on ACS or IDW at the same time.

13. (U) Provided that the Court and detainees' coun sel do not object to the FBI satisfying its discov ery obligation to produce all information that is "reasonably available" through IDW searches, the FBI would likely be able to conduct the initial document identification searches in a reasonable period of time. This, however, would not alleviate the other issues discussed below.

14. (U) Once potentially responsive documents are identified through either ACS or IDW searches, the FBI must provide the documents to the DoD. The DoD will then conduct its own search and review to determine which documents are actu ally pertinent documents to the FBI for a "need to know" review.

15. (U) Based upon initial search results, it is proba ble that tens of thousands of documents may need to undergo this "need to know" review by the FBI. Agents and analysts would be required to review the documents carefully in order to iden tify any highly sensitive information and tech niques described in Part II of this declaration.

16. (U) While it is not possible at this time to esti mate the number of agents and analysts who would be required to perform such a review, it is likely to be significant. Due to the specialized subject matter of the documents, it is expected that the review would be performed by agents and analysts assigned to the Counterterrorism Division (CTD) of the FBI.

17. (S)

Part II. (U) Revelation of Highly Sensitive Counterter rorism Information and Techniques

18. (S)

19. (U) Information subject to dissemination pursu ant to the Court's order will come from numer ous sources, including FBI counterterrorism in vestigative files of subjects other than the de tainees, human sources, foreign government ser vices, other government agencies and other sen sitive techniques, including Foreign Intelligence Surveillance Act (FISA) authorized searches and surveillance. Revealing intelligence acquired from or by these other sources will likely also re veal current subjects of national security investi gations.

20. (U) Disseminating human source information could reasonably lead to the disclosure of their identities because often the information provided by human sources is singular in nature. The dis closure of singular information could endanger the life of the source or his/her family or friends, or cause the source to suffer physical or economic harm or ostracism within the community. These consequences, and the inability of the FBI to pro tect the identities of its human sources, would make it exceptionally more difficult for the FBI and other U.S. intelligence agencies to recruit human sources in the future.

21. (S//OC/NF)

22. (U) The FBI receives information from foreign intelligence and law enforcement services in fur therance or its counterterrorism mission. That information is often provided with strict limita tions on its use. Generally, the FBI must obtain permission from the foreign service before it can further disseminate or use its information in the course of other proceedings. Further dissemina tion by the FBI, even to cleared defense counsel or the Court, would require this extensive, time- consuming coordination with every nation that has provided information related to a detainee.

23. (U) Finally, FBI files contain documents pro vided by other U.S. intelligence agencies. The FBI is not in a position to evaluate the sensitivity of the other government agency information. In fact, standard procedures for handling classified information require that the information must be referred back to the originating agency for re view to determine whether it can be dissemi nated. Those reviews will have to be done by other government agencies whose personnel will also be engaged in their own review of substan tive information as required by this order.

24. (S)

25. (S//NF)

Part III. The Protective Order

26. (U) The protective order entered by the Court acknowledges the sensitivity of the classified na tional security information at issue but does not provide sufficient safeguards to ensure that there is no disclosure, inadvertent or otherwise, of clas sified national security information. Detainees' counsel, although appropriately cleared, do not handle classified information with regularity. In addition, they do not have much training on the proper handling, storage and maintenance of such information.

27. (U) The protective order does not address several key measures that would reduce the risk of dis closures of classified information. For example, there is no provision for where or how the classi fied information is to be stored. There is also no provision for where detainees' counsel is to re view the classified information. There is no pro hibition on detainees' counsel taking the classified information, including any notes made from the classified information, to unsecured locations, such as back to their offices or to their homes.

28. (U) In addition, there is no provision for a Court Security Officer (CSO) to be appointed in these matters. The CSO would be an added measure of protection for the classified information. The CSO could better ensure proper storage, review and retention of classified information, and the CSO could advise detainee counsel about proper use and handling of the information. With a CSO's involvement, detainee counsel would be less likely to inadvertently disclose classified in formation.

29. (U) Were the Court to modify the protective or der in those ways, it would alleviate some of the FBI's concerns about disclosure, although the other impacts to operations and national security, noted in Parts I and II above, remain.

Part IV. Conclusion

(S)

Pursuant to 2.8 U.S.C. § 1746, I declare under pen alty of perjury that the foregoing is true and correct.

Executed on September 6, 2007.

/s/ ROBERT S. MUELLER, III

ROBERT S. MUELLER, III

DIRECTOR FEDERAL BUREAU OF

INVESTIGATION

 

 

 

 

 

 

 

 

APPENDIX J

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

Case No. 06-1197

HAJI BISMULLAH, PETITIONERS

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, DEFENDANTS

 

UNCLASSIFIED DECLARATION OF LTG KEITH B. ALEXANDER, DIRECTOR, NATIONAL SECURITY AGENCY

 

DECLARATION OF LIEUTENANT GENERAL KEITH B. ALEXANDER, DIRECTOR, NATIONAL SE CURITY AGENCY

(U) I, Lieutenant General Keith B. Alexander, do hereby state and declare as follows:

(U) Introduction and Summary

1. (U) I am the Director of the National Security Agency (NSA), an intelligence agency within the De partment of Defense. I am responsible for directing the NSA, overseeing the operations undertaken to carry out its mission and, by specific charge of the President and the Director of National Intelligence, protecting NSA activities and intelligence sources and methods. I make this declaration in support of the United States' request for rehearing en banc and to inform the court of the sen sitivity of the information potentially at issue in cases involving detainees held at Guantanamo Bay, Cuba. The statements made herein are based on my personal knowledge of NSA activities and operations, and on in formation available to me as Director of the NSA.

2. (U) Through the exercise of my official duties, I have been advised of this litigation and the court's de cision of 20 July 2007. Specifically, I have been advised that the Court's decision requires this agency to compile and provide to the Court and potentially to counsel for the detainees all information that the Combatant Status Review Tribunal (hereafter Tribunal) was authorized to obtain and consider. In addition, I have been advised that the decision requires production of the information even if the information did not form the basis of the de tention of the individual and even if the information was never considered by the Tribunal. It is my understand ing that, currently, approximately 130 detainees have fi led petitions for rehearing.

(U) Background

A. (U) The National Security Agency

3. (U) The NSA was established by Presidential Directive in 1952 as a separately organized agency with in the Department of Defense. Under Executive Older 12333, § I.12(b), as amended, NSA's cryptologic mission includes three functions: (1) to collect, process, and dis seminate signals intelligence (SIGINT) information, of which COMINT is a significant subset, for (a) national foreign intelligence purposes, (b) counterintelligence purposes, and (c) the support of military operations; (2) to conduct information security activities; and (3) to con duct operations security training for the U.S. Govern ment.

B. (U) Global War on Terror

4. (U) On September 11, 2001, the al Qa'ida terror ist network launched a set of coordinated attacks along the East Coast of the United States. Four commercial jetliners, each carefully selected to be fully loaded with fuel for a transcontinental flight, were hijacked by al Qa'ida operatives. Those operatives targeted the Na tion's financial center in New York with two of the jet liners, which they deliberately flew into the Twin Tow ers of the World Trade Center. Al Qa'ida targeted the headquarters of the Nation's Armed Forces, the Penta gon, with the third jetliner. Al Qa'ida operatives were apparently headed toward Washington, D.C. with the fourth jetliner when passengers struggled with the hi jackers and the plane crashed in Shanksville, Pennsyl vania. The intended target of this fourth jetliner was most evidently the White House or the Capitol, strongly suggesting that al Qa'ida's intended mission was to strike a decapitation blew to the Government of the United States-to kill the President, the Vice President, or Members of Congress. The attacks of September 11 resulted in approximately 3,00C deaths-the highest single-day death toll from hostile foreign attacks in the Nation's history. In addition, these attacks shut down air travel in the United States, disrupted the Nation's financial markets and government operations, and caused billions of dollars of damage to the economy.

5. (U) On September 14, 2001, the President de clared a national emergency "by reason of the terrorist attacks at the World Trade Center, New York, New York, and the Pentagon, and the continuing and immedi ate threat of further attacks on the United States." Pro clamation No. 7463, 66 Fed. Reg. 48199 (Sept. 14,2001). The United States also launched a massive military res ponse, both at home and abroad. The United States also immediately began plans for a military response direc ted at al Qa'ida's training grounds and haven in Afghan istan. On September 14, 2001, both Houses of Congress passed a Joint Resolution authorizing the President "to use all necessary and appropriate force against those na tions, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks" of September 11. Authorization for Use of Military Force, Pub. L. No. 107-40 § 21(a), 115 Stat. 224, 224 (Sept. 18, 2001) ("Cong. Auth."). Congress also expressly acknow ledged that the attacks rendered it "necessary and ap propriate" for the United States to exercise its right "to protect United States citizens both at home and abroad," and acknowledged in particular that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." Id. pmbl. As a direct result of the mili tary actions described above, and during the active con flict, numerous individuals were captured and detained by the United States.

6. (U) As the President made clear at the time, the attacks of September 11 "created a state of armed con flict." Military Order, § 1(a), 66 Fed. Reg. 57833, 57833 (Nov. 13,2001). Indeed, shortly after the attacks, NA TO took the unprecedented step of invoking Article 5 of the North Atlantic Treaty, which provides that an "armed attack against one or more of [the parties] shall be considered an attack against them all." North Atlan tic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243,246; see also Statement by NATO Secre tary General Lord Robertson (Oct. 2, 2001), available at http://www.nato.int/docu/speech/2001/s011002a.htm ("[I]t has now been determined that the attack against the United States on September 11th was directed from abroad and shall therefore be regarded as an action cov ered by Article 5 of the Washington Treaty. . . . "). The President also determined that al Qa'ida terrorists "possess both the capability and the intention to under take further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of prop erty, and may place at risk the continuity of the opera tions of the United States Government," and he con cluded that "an extraordinary emergency exists for na tional defense purposes." Military Order, § l(c), (g), 66 Fed. Reg. at 57833-34. As the Supreme Court has rec ognized, implicit in the Authorization to Use Military Force was authorization to detain individuals captured during the armed conflict.

C. (U) Intelligence Challenges After September 11, 2001

7. (U) As a result of the unprecedented attacks of September 11, 2001, the United States found itself im mediately propelled into a worldwide war against a net work of terrorist groups, centered on and affiliated with al Qa'ida, that possesses the evolving capability and in tention of inflicting further catastrophic attacks on the United States. That war is continuing today, at home as well as abroad.

8. (U) The war against al Qa'ida and its allies is a very different kind of war, against a very different ene my, than any other war or enemy the Nation has prev iously faced. Al Qa'ida and its supporters operate not as a traditional nation-state but as a diffuse, decentralized global network of individuals, cells, and loosely associa ted, often disparate groups, that act sometimes in con cert, sometimes independently, and sometimes in the United States, but always in secret-and their mission is to destroy lives and to disrupt a way of life through terrorist acts. Al Qa'ida works in the shadows; secrecy is essential to al Qa'ida's success in plotting and execut ing its terrorist attacks.

(U) NSA Statutory Privilege

9. (U) Information regarding NSA's intelligence efforts directly relates to the Agency's most core func tions and activities. Congress has recognized the harms that may result from disclosure of this information and the need to protect the fragile nature of NSA's crypto logic efforts, including, but not limited to, the existence and depth of signal intelligence related analytical suc cesses, weaknesses and exploitation techniques. As a result, Congress has passed several statutes specifically protecting this type of information from disclosure. For example, the NSA activities described in this declaration are subject to protection pursuant to Section 6 of the National Security Agency Act of 1959, Public Law No. 86-36 (codified as a note to 50 U.S.C. § 402) ("NSA Act"). 10. (U) Section 6 of the NSA Act provides that "[n]othing in this Act or any other law . . . shall be construed to require the disclosure of the organization or any function of the National Security Agency [or] any information with respect to the activities thereof . . . ". By this language Congress expressed its determination that disclosure of any information relating to NSA activ ities is potentially harmful. Section 6 states unequivoc ally that, notwithstanding any other law, NSA cannot be compelled to disclose any information with respect to its activities. Further, while in this case the harm would be very serious, NSA is not required to demonstrate spe cific harm to national security when invoking this statu tory privilege, but only to show that the information re lates to its activities. Rather, for this statutory privilege to apply, NSA must demonstrate only that the informa tion to be protected falls within the scope of Section 6. NSA's functions and activities are therefore protected from disclosure regardless of whether or not the infor mation is classified. As Congress appreciated, that which is potentially innocuous to some is potentially ex ceptionally useful to our adversaries who are targets of NSA collection. This is the risk in the instant litigation where the contemplated review by the Court or Counsel places at risk of inadvertent disclosure the very heart of NSA's operations, its successful collection against these detainees.

(U) Summary and Conclusion

11 (U) The breadth of information and dissemina tion to counsel for all of the detainees that is contem plated by the Court's decision in this case, would create a very real danger of disclosure (intentional or inadver tent) of sensitive intelligence information to include sources and methods of collection. Although this infor mation would be produced pursuant to a Court Order, the widespread dissemination of this information even to cleared counsel introduces a real risk of inadvertent (or other) disclosure.

12. (U) The United States has an overwhelming in terest in detecting and thwarting further mass casualty attacks by al Qa'ida. The United States has already suf fered one attack that killed thousands, disrupted the Na tion's financial center for days, and successfully struck at the command and control center for the nation's mili tary. Al Qa'ida continues to possess the ability and in tent to carry out a massive attack in the United States that could result in a significant loss of life, as well as have a devastating impact on the U.S. economy. The exposure of sensitive intel1igence information, including particularly the sources and methods of collection of this information, could cause exceptionally grave damage to the national security of the United States.

I declare under penalty of perjury that the foregoing is true and correct.

DATE: [7 Sept. 2007]

 

/s/ KEITH B. ALEXANDER

LT. GEN. KEITH B. ALEXANDER

Director, National Security Agency

 

APPENDIX K

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

No. 06-1197

UNCLASSIFIED

HAJI BISMULLAH, ET AL., PLAINTIFFS

v.

ROBERT GATES, ET AL., DEFENDANTS

 

DECLARATION OF J. MICHAEL McCONNELL, DIRECTOR OF NATIONAL INTELLIGENCE

 

I, J. Michael McConnell, declare as follows:

l. I am the Director of National Intelligence (DNI) of the United States. I have held this position since February 2007. Previously, I have served as Executive Assistant to the Director of Naval Intelligence, as Chief of Naval Forces Division at the National Security Agency, as Director of Intelligence for the Joint Chiefs of Staff during Operation Desert Storm, and as Director of the National Security Agency.

27. Background on the Director of National Intelligence

2. Congress created the position of the Director of National Intelligence (DNI) in the Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108- 458, §§ 1011(a) and 1097, 118 Stat. 3638, 3643-63, 3698- 99 (2004) (amending sections 102 through 104 of Title I of the National Security Act of 1947). Subject to the authority, direction, and control of the President, the DNI serves as head of the United States Intelligence Community and as the principal advisor to the Presi dent, the National Security Council, and the Homeland Security Council for intelligence matters related to na tional security. 50 U.S.C. § 403(b)(1), (2).

3. The United States Intelligence Community in cludes the Office of the Director of National Intelli gence; the Central Intelligence Agency; the National Security Agency; the Defense Intelligence Agency; the National Geospatial-Intelligence Agency; the National Reconnaissance Office; other offices within the Depart ment of Defense for the collection of specialized national intelligence through reconnaissance programs; the intel ligence elements of the military services, the Federal Bureau of Investigation, the Department of Treasury, the Department of Energy, the Drug Enforcement Ad ministration, and the Coast Guard; the Bureau of Intelli gence and Research of the Department of State; the elements of the Department of Homeland Security con cerned with the analysis of intelligence information; and such other elements of any other department or agency as may be designated by the President, or jointly desig nated by the DNI and the head of the department or agency concerned, as an element of the Intelligence Community. 50 U.S.C. § 401a(4).

4. The responsibilities and authorities of the DNI are set forth in the National Security Act of 1947, as amended. These responsibilities include ensuring that national intelligence is provided to the President, heads of the departments and agencies of the Executive Branch, the Chairman of the Joint Chiefs of Staff and senior military commanders, and the Senate and House of Representatives and committees thereof. 50 U.S.C. § 403-1(a)(1). The DNI is charged with establishing the objectives of; determining the requirements and priori ties for; and managing and directing the tasking, collec tion, analysis, production, and dissemination of national intelligence by elements of the Intelligence Community. 50 U.S.C. § 403-1(f)(1)(A)(i) and (ii).

5. In addition, the National Security Act of 1947, as amended, states that "[t]he Director of National Intelli gence shall protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403-1(i)(1). Consistent with this responsibility, the DNI establishes and implements guidelines for the Intelligence Commu nity for the classification of information under applicable law, Executive Order, or other Presidential directives and for access to and dissemination of intelligence. 50 U.S.C. § 403-1(i)(2)(A), (B).

6. By virtue of my position as DNI, and unless otherwise directed by the President, I have access to all intelligence related to the national security that is col lected by any department, agency, or other entity of the United States. Pursuant to Executive Order No. 12958, 3 C.F.R. § 333 (April 7, 1995), as amended by Executive Order No. 13292 (March 25, 2003), reprinted as amended in 50 U.S.C.A. § 435 at 93 (Supp. 2004), the President has authorized me to exercise original TOP SECRET classification authority.

7. The statements made in this declaration are based on my personal knowledge, as well as on informa tion provided to me in my official capacity as DNI.

28. The Bismullah Decision

8. I have been advised of the facts surrounding this case and am aware of the Court's July 20, 2007 ruling. I understand that the Court held that the record on re view under the Detainee Treatment Act (DTA) is not limited to the information that was actually presented to and considered by the Combatant Status Review Tribu nal (CSRT) in making its enemy combatant determina tion. Instead, the Court held that the record on review is comprised of all information the CSRT was authorized to obtain and consider under DOD regulations, which is defined as "such reasonably available information in the possession of the U.S. Government bearing on the issue whether the detainee meets the criteria to be designated as an enemy combatant." I also understand that the Court's definition of the record on review is binding on all appeals of CSRT determinations brought pursuant to the DTA.

9. I have also reviewed and personally considered the information contained in the classified in camera, ex parte declarations of General Michael H. Hayden, Direc tor, Central Intelligence Agency, and Lieutenant Gen eral Keith B. Alexander, Director, National Security Agency, that are filed in this matter. Those declarations provide detailed discussions of the information that would have to be disclosed as a result of the Court's de cision and the harms that would result from such disclo sures.

10. This declaration is submitted in support of the Government's petition for rehearing in this case. Its purpose is to describe and explain the harm to national security that reasonably can be expected to result if the information described in the CIA and NSA declarations must be provided to the Court and detainee counsel. I also submit this declaration pursuant to my statutory responsibility to protect intelligence sources and meth ods and to protect the national security and foreign rela tions of the United States.

29. Potential Harm from Disclosure of Classified

30. Information

11. This Court's ruling will result in the Intelligence Community having to provide the Court and detainees counsel with thousands of pages of material, including some of the Government's most sensitive and highly classified records. To do so could significantly damage our ability to protect sources and methods and could cause grave harm to our national security.

12. Although the Court has not required that any classified information be publicly disclosed, but rather that information be provided to cleared counsel and the Court, I nevertheless believe that exceptionally grave damage to national security reasonably can be expected to stem from the Court's decision. It is my understand ing that over 100 appeals have been filed under the pro visions of the DTA, and with over 300 detainees at Guantanamo Bay disclosure of such classified informa tion to detainee counsel may mean disclosure to hun dreds of people who are not employees of the United States government and who are not trained in handling classified information. With so many people allowed access to such sensitive information, I believe that unau thorized disclosures, even if inadvertent, are inevitable.

13. Much of the information at issue here is closely held even within the Intelligence Community, so to pro vide this information to potentially hundreds of lawyers for detainees, even if they have clearances, could cause serious damage. Some of this information is so strictly controlled that only a small number of federal govern ment employees have access to it. Such strictly con trolled access to classified information is a necessary step in safeguarding this information. The details of the government's access control program are described more fully in the classified declarations filed with the Court. This system for controlling access to the U.S. Government's most highly sensitive information and keeping it compartmentalized has been very carefully conceived. Going outside of this access control program risks public disclosure of our nation's most sensitive se crets.

14. In an effort to counter the Al-Qaeda threat and thwart further attacks on the United States, the intelli gence community has used many vital intelligence tools to collect counterterrorism information. While some of these programs are now publicly known, to disclose ad ditional information regarding them or provide greater detail about them in this context would risk public dis closure of classified intelligence information, sources, and methods, thereby enabling adversaries of the United States to avoid detection by the U.S. Intelligence Community and/or take measures to defeat or neutralize U.S. intelligence collection, posing a serious threat of damage to our national security interests. Further elab oration of this concern is provided in the classified decla rations being filed with the Court.

15. In addition, the Intelligence Community has many sources of information that must be protected. For example, much of the information at issue was pro vided by foreign intelligence services or would reveal the specific assistance provided by foreign partners in the global war on terror. Certain liaison services will likely decrease their cooperation with the U.S. Govern ment if their information is caught up in U.S. court pro ceedings.

16. Human sources also provide the Intelligence Community with critical information, but only upon the condition of absolute secrecy. Revealing this informa tion would violate the assurances of confidentiality we provide these sources and would likely result in their minimizing or ceasing altogether their cooperation. Such a disclosure would harm the Intelligence Commu nity's ability to retain current sources and recruit new ones, and if we cannot recruit and retain sources, the Intelligence Community simply cannot conduct its busi ness.

31. Conclusion

17. For all of these reasons and the reasons dis cussed in the other agency declarations filed with the Court, I believe that the Court's decision in this case could reasonably be expected to cause serious damage, and in some instances, grave damage to our nation's se curity. In order to protect intelligence sources and methods from unauthorized disclosure and to protect our national security, I submit this declaration in sup port of the U.S. government's petition for rehearing in this case.

 

 

I declare under penalty of perjury that the foregoing is true and correct.

DATE: 6 Sep 07 /s/ J. MICHAEL MCCONNELL J. MICHAEL MCCONNELL

Director of National Intelligence

 

APPENDIX L

 

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

No. 06-1197

HAJI BISMULLAH, ET AL., PETITIONERS

v.

 

ROBERT M. GATES, SECRETARY OF DEFENSE,

RESPONDENT

No. 06-1397

HUZAIFA PARHAT, ET AL., PETITIONERS

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, RESPONDENT

 

DECLARATION OF THE HONORABLE GORDON R. ENG LAND, DEPUTY SECRETARY OF DEFENSE, DEPART MENT OF DEFENSE, WASHINGTON, DC

Pursuant to 28 U.S.C. § 1746, I, Gordon R. England, hereby declare that to the best of my knowledge, infor mation, and belief, the following is true, accurate, and correct:

1. I am the Deputy Secretary of Defense. I served as Acting Deputy from May 16, 2005 to January 4, 2006, when I was recess appointed by the President as Deputy Secretary. I was confirmed by the Senate on April 6, 2006 as the 29th Deputy Secretary of Defense. Prior to that, I served as the Secretary of the Navy, beginning in September 2003.

2. As the Deputy Secretary of Defense, I serve as the Designated Civilian Official responsible for oversee ing the detainee review processes at Joint Task Force- Guantanamo (JTF-GTMO). This includes the Combat ant Status Review Tribunals (CSRTs) and the Adminis trative Review Board (ARBs) proceedings.

3. On July 20, 2007, the Court issued its opinion in the above styled cases. Subsequently, a panel of this Court ordered the Government to produce the record, as defined in Bismullah on September 13, 2007, in Paracha v. Gates, No. 06-1038, and other panels have likewise or dered the production of a Bismullah record in other cases on other dates. I understand the Court to have de termined that the "record on review" under the Detai nee Treatment Act is not limited to the record actually presented to and considered by the CSRT in making its enemy combatant determination, but rather includes all information the CSRT is "authorized to obtain and con sider" under the Secretary of Defense's CSRT proced ures (i.e., the "Government Information," which is de fined 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 desig nated as an enemy combatant.").

4. As reflected in the Declaration of RADM (ret.) James M. McGarrah, previously submitted in this case, in the 2004-2005 time frame, when the Office for the Ad ministrative Review of the Detention of Enemy Combat ants (OARDEC) conducted the CSRTs for 558 Guan tanamo detainees, the Recorders (the term Recorder is meant to include the teams that assisted the Recorders), in searching for and gathering material for the CSRTs, relied primarily upon searches of relevant DoD data bases, specifically the Joint Detainee Information Man agement System and the I2G Investigative Information Database (formerly called I2MS). Recorders also went beyond these databases and pursued gathering informa tion from other sources. The "Government Information" with respect to a detainee, however, was not amassed into a single, reproducible file. Nor are there reliable records of the precise materials that were in fact exam ined by a Recorder in every case. Thus, it is not possible to recreate easily or with any precision the information that was reviewed by the Recorders in performing their duties.

5. Accordingly, in order to attempt to comply with the Bismullah ruling and assemble the "Government In formation" for any particular detainee, DoD is having to undertake new searches and assembly of materials from which "Government Information" can be taken. The Director of OARDEC has directed six DoD intelligence agencies, the Office of Military Commissions, and five Combatant Commands to identify, assemble and provide information from which the "Government Information" for certain individuals detained at U.S. Naval Base Guantanamo Bay, Cuba can be derived. OARDEC has conducted the same search of its own files for original documents falling within this definition. The particular components tasked for such searches were selected after an assessment was made that their organization may hold potentially responsible documents on the detainees at issue. Searches were initially undertaken with res pect to six detainees currently held as enemy combat ants at U.S. Naval Station, Guantanamo Bay, Cuba who have filed petitions under the Detainee Treatment Act so that the Department could assess the likely impact of a tasking to gather all available "Government Informa tion" with respect to the Detainee Treatment Act review cases on the mission of each command, agency and office during a time of war.

6. In addition, a number of outside agencies, includ ing the CIA, FBI, State Department, and Department of Homeland Security, as well as the National Security Agency (NSA) within DoD, were separately tasked in the context of this litigation with searching for and as sembling information from which "Government Infor mation" can be derived. DoD shares the concerns ex pressed in some of those outside agencies' declarations regarding the disclosure of highly sensitive information.

7. The current search undertaken to comply with the requirements of the Bismullah decision has created an immense burden on the Department of Defense. Documented accounts from the DoD components and commands demonstrate undue burden to war-time mis sions and objectives, compromise of resources necessary for the war effort, and diversion of significant manpower from the war time mission.

8. For example, one of the components tasked to search for potentially responsive materials is the Crim inal Investigation Task Force (CITF). CITF's primary mission is to investigate non-U.S. citizen detainees cap tured during the Global War on Terrorism and suspec ted of illegal activities in conjunction with their affilia tion to al Qaida and other enemies of the United States. The objective is to either refer the cases to the DoD Of fice of Military Commissions for criminal prosecution or to identify detainees who should be released and/or transferred from DoD control. Information obtained as the result of these investigations is also provided to the U.S. intelligence community.

9. To comply with the search-related tasking on the initial set of six cases, CITF created special working groups that included subject matter experts, law en forcement agents and intelligence analysts. The work ing group developed search terms, protocols and para meters. To date, CITF agents and analysts have spent nearly 2000 total manhours to comply with this tasking. At bottom, CITF reports that it was rendered ineffec tive for normal operations with respect to about thirty percent of CITF staff, personnel, and resources during the search process. The effect was highly disruptive. Long term repetition of these efforts, that is, extrapolat ing such efforts to all Detainee Treatment Act review cases (currently involving approximately 230 detainees), would render CITF ineffective as an investigative task force.

10. Other DoD components tasked to conduct sear ches (aside from NSA, which is addressing this matter in its own declaration in this litigation) also have repor ted not an insignificant resource toll in the matter. Cur rently, it is estimated that gathering of such materials has expended several hundred manhours, although ef forts are still underway to determine whether additional search-related work from the components is necessary. Long term repetition of such efforts with respect to these components points to a significant burden of these components' abilities to carry out duties associated with their primary mission. For example, the Joint Task Force-Guantanamo reported that future impact of a wide-scale document gathering effort could impact its primary mission of conducting detention and interroga tion operations in support of the Global War on Terror ism by, among other things, diverting personnel other wise involved in interrogations and analysis from those duties to the gathering of information to support litiga tion requirements.

11. The above-related examples do not include the work performed by OARDEC, which is discussed in de tail below.

12. OARDEC is an organization within the DoD that is responsible for several processes involving detainees at Guantanamo Bay, Cuba. Specifically, OARDEC con ducts CSRTs and annual ARBs for detainees at Guantanamo Bay, Cuba. The ARB is an annual review to determine the need to continue the detention of an en emy combatant. The ARB recommends whether an in dividual should be released, transferred or continue to be detained. This process has resulted in approximately 200 detainees being approved for transfer or release from U.S. custody.

13. OARDEC is responsible for working with each of the DoD components tasked to ensure that a complete and comprehensive search for "Government Informa tion" was accomplished. It is then the responsibility of OARDEC to review the information collected by the components to determine what information is "Govern ment Information" that should be produced in compli ance with the Bismullah decision.

14. OARDEC is working or coordinating with each DoD agency and command, and outside agencies, on the gathering of documents. Many of the agencies and com mands have different data systems and information in them is retrieved differently and sent to OARDEC in different formats. Some agencies have required OAR DEC to review documents at their facility; others have provided documents to OARDEC. OARDEC is also con ducting a review of the CSRT tribunal files for the cases to gather any appropriate original documents for the re cord on review.

15. Once documents are made available to OAR DEC, either by DoD components or by outside agencies, OARDEC must then review the documents to eliminate documents not relevant to the detainee and not relevant to the detainee's enemy combatant status. Where ma terials are supplied to OARDEC in electronic form, OARDEC is responsible for developing appropriate search terms, protocols, and parameters for searching through the materials via electronic means and conduct ing such review. In addition, some agencies provide doc uments in a format that is not electronically searchable, so OARDEC is responsible for re-formatting those docu ments before they can conduct their search. Not all agencies provide documents in electronic form; in such cases OARDEC is responsible for manually reviewing the documents. Once OARDEC's review is completed and a set of material for potential production to the Court and detainee counsel is gathered from a compon ent or agency, OARDEC then forwards these documents to the originating agency for a "need to know" analysis to determine the propriety of disclosure of the docu ments to the court or detainee's counsel.

16. The burden to OARDEC has been substantial and continues to constitute a significant burden to the mission and objectives of OARDEC at both its Washing ton, DC Headquarter offices and its offices at Guantan amo Bay, Cuba. The combined efforts by OARDEC for all agencies, offices and commands so far have involved more than 270 manhours just with respect to the gather ing of information for the Paracha matter. To conduct the work accomplished so far, which is not complete even with respect to the Paracha matter, much less the other cases, OARDEC has had to re-prioritize its work or delay other pressing responsibilities, including pre paring for or conducting CSRTs for recently arrived Guantanamo detainees, ARBs, and new CSRTs based on newly obtained evidence (see OARDEC Instruction 5421.1 (issued May 7, 2007)). OARDEC has experienced a decrease of production of the ARBs and CSRTs over the last four weeks. This is due to the fact that OAR DEC has had to take 18 of the 20 personnel assigned to the production of ARB and CSRT case files and reassign them to the current gathering and review effort. A long- term and significant increase in these gathering efforts, which would be the result of effectuating such efforts for all Detainee Treatment Act review cases (currently in volving approximately 130 detainees), would lead to an exponential increase in the burden on OARDEC's ability to carry out its other duties and a requirement for sig nificantly increased staffing to carry out the assembly of Government Information called for under Bismullah.

17. Aside from the burdens discussed above, addi tional burdens are involved in DoD's attempt to comply with the Court's order regarding production of Govern ment Information to the Court and counsel. Prior to the regime created through the Court's order in Bismullah, with respect to Guantanamo detainees with habeas cases or DTA review petitions and where so ordered by a court, only the "Government Evidence," that is, the re cord considered by the CSRT in making the enemy com batant determination (with certain exceptions), was pro vided to the Court and properly cleared and otherwise qualified petitioner's counsel. The required disclosure of the "Government Information" per the Bismullah decision, however, will typically require a much broader potential production of materials to the Court and pe titioner's counsel. As indicated above, this broader set of typically classified materials must be reviewed by ap propriate DoD components and outside agencies to de termine "need to know," that is, the suitability of disclo sure of such information to the Court and counsel. Al though a precise assessment of such burdens with res pect to DoD components (other than NSA) cannot be made at this time, given that such work on the cases in process is not complete, the process promises to be bur densome and time-consuming.

18. Although DoD is committed to devoting all nec essary resources to complying with any other court, it is important to note that our components are still engaged in active combat around the world in the Global War on Terrorism. Compliance with the Bismullah court order that requires the gathering of information as has been described here will require DoD to pull resources away from the warfighting and intelligence gathering mis sions that are essential to fighting the Global War on Terrorism. We cannot overstate the importance of en suring that our components can focus on their primary missions.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true, accurate, and correct.

Dated this the 7th day of September 2007

/s/ GORDON ENGLAND The Honorable GORDON R. ENGLAND

Deputy Secretary of Defense

Department of Defense

Pentagon, Washington, DC

 

 

 

APPENDIX M

 

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

No. 06-1197

HAJI BISMULLAH, ET AL., PETITIONERS

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, RESPONDENT

 

 

 

 

No. 06-1397

HUZAIFA PARHAT, ET AL., PETITIONERS

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, RESPONDENT

 

[ARGUMENT HELD ON MAY 5, 2007]

 

DECLARATION OF REAR ADMIRAL (Retired) JAMES M. McGARRAH

 

Pursuant to 28 U.S.C. § 1746, I, James M. McGarrah, hereby declare that to the best of my knowledge, infor mation, and belief, the following is true, accurate, and correct:

1. I was the Director of the Office for the Adminis trative Review of the Detention of Enemy Combatants (OARDEC) from July 2004 until March 2006. I cur rently serve as a Special Assistant to the Deputy Assis tant Secretary of Defense for Detainee Affairs. This declaration is intended to provide a general description of the overall Combatant Status Review Tribunal (CSRT) process during this period in which I served as the Director of OARDEC, and concurrently as the CSRT Convening Authority. CSRT Order, 7 July 2004, para. f. This declaration is based on my personal knowl edge as well as information obtained in my official ca pacity as Director of OARDEC and CSRT Convening Authority.

2. In July 2004, the Department of Defense estab lished the CSRT process. The process was established to provide a formalized, standardized process to review the combatant status of all "foreign nationals held as enemy combatants in the control of the Department of Defense at the Guantanamo Bay Naval Base, Cuba." CSRT Order, 7 July 2004. OARDEC was established in July 2004, and charged with implementing this process, as well as the annual Administrative Review Boards con ducted for detainees at Guantanamo. As Director of OARDEC, I was appointed the CSRT Convening Au thority by the Secretary of the Navy in July 2004. Dur ing my tenure as Director, we conducted 558 Combatant Status Review Tribunals (CSRTs). During that time frame, over 200 personnel (including active duty and reserve military, civilians and contractors) were as signed to OARDEC, and were involved in carrying out OARDEC's missions. The primary OARDEC mission during this period was preparing for and conducting these Tribunals, and involved the vast majority of these assigned personnel. Some of these personnel were as signed to work at Guantanamo Bay while others were assigned in the Washington, D.C. area.

3. The CSRT procedures provide that the CSRT "Tribunal is authorized to * * * request the production of such reasonably available information in the posses sion 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 gener ated in connection with the initial determination to hold the detainee as an enemy combatant and in any subse quent reviews of that determination, as well as any re cords, determinations, or reports generated in connec tion with such proceedings (cumulatively called herein after the 'Government Information')." CSRT Proce dures, Enc. 1, § E(3). The CSRT Recorder is charged with, among other things, "obtain[ing] and examin[ing] the Government Information." CSRT Procedures, Enc. 2, § 2C(1). Additionally, "the Recorder has a duty to present to the CSRT such evidence in the Government Information as may be sufficient to support the de tainee's classification as an enemy combatant, including the circumstances of how the detainee was taken into the custody of the U.S. or allied forces (the "Government Evidence")." CSRT Procedures, Enc. 2, § B(1).

4. Prior to September 1, 2004, the CSRT Recorder personally collected the Government Information. At that time, due to the other extensive responsibilities of the Recorder3 and in order to provide greater efficiency in the collection of this information, additional individu als were assigned to assist the Recorder in gathering detainee information. Responsibilities of Recorder, CSRT Procedures, Enc. 2, § C(2). Accordingly, after September 1, 2004, the task of gathering and analyzing the Government Information was performed by a specially-formed research, collection and coordination team (hereinafter referred to as "Team"). This Team, which was dedicated to the functions of obtaining, exam ining and analyzing detainee information, brought greater manpower resources to this important function. In addition, due to the location of the Team in the Wash ington, D.C. area in close proximity to other Govern ment agencies, the interagency approval procedure used for clearance of the Government Evidence was much more efficient. See supra text accompanying Paragraph 10. The dedicated Team focused on the tasks of identify ing relevant information on each detainee, including in formation that might suggest that the detainee should not be designated as an enemy combatant.

5. Members assigned to the Team each received approximately two weeks of training prior to assuming their data collection responsibilities, as well as addi tional instruction, as appropriate, during their tenures. The training included instruction on the CSRT process with specific emphasis on the Recorder's functions and responsibilities, operator training on the pertinent gov ernment databases, as well as cultural awareness and intelligence training to assist Team members in better understanding the potential significance of individual data elements. The Team was organized in three sepa rate functions.

a. The first function, Case Writer, had primary re sponsibility for researching, reviewing and ultimately collecting information from government sources. The Case Writers would the use this information to draft an unclassified summary of the factual basis for the de tainee's designation as an enemy combatant.

b. The second function, Quality Assurance (QA), reviewed the draft products from the Case Writer to ensure they were logical, consistent and grammatically correct.

c. The third function, Coordination, worked with the various government agencies whose information was to be used as Government Evidence, in order to receive clearance to use their information in the Tribunal, as well as to verify the accuracy of the Unclassified Sum mary.

6. Although the Team functioned as a data collection "staff" for the Recorders, each Recorder was held per sonally responsible for reviewing and verifying the in formation provided by the Team, for finalizing each package of unclassified and classified Government Evi dence (to include the Unclassified Summary), and for presenting this evidence to the tribunal. In reviewing and verifying the information received from the Team, the Recorder had access to the same information sys tems used by the Team, and could add information to be presented to the CSRT panel as Government Evidence or as material that might suggest that the detainee should not be designated as an enemy combatant; could decline to use as Government Evidence any material provided by the Team; and/or could submit requests for further information to obtain additional evidence from government entities. New information obtained by the Recorder in this manner would be treated as Govern ment Information and, if appropriate, would be included in the Government Evidence presented to the CSRT panel. Throughout the CSRT process, the Recorder was responsible for making the final determination of what material would be presented to the CSRT as the Govern ment Evidence. CSRT Procedures, Enc. 2, § B(1). In addition, both the Personal Representative and the Tri bunal members had, and exercised, the ability to request additional information; the Recorder had the responsi bility to respond to such requests.

7. The Team pursued leads found in government files relating to a detainee to identify other material that would qualify as Government Information. First, the Team conducted computer searches via a Defense De partment database called the Joint Detainee Informa tion Management System (JDIMS).

a. JDIMS is an information management tool devel oped and used primarily to support interrogations. In formation stored on this database includes interrogation reports, intelligence messages, intelligence reports, ana lyst products, and periodic detainee assessments by DoD and other U.S. Government organizations, such as the U.S. Army Criminal Investigation Task Force (CITF). Only information classified at the SECRET level and below is placed into the JDIMS system. The information also must be in the possession and control of the Joint Intelligence Group (JIG), an element of Joint Task Force Guantanamo (JTF-GTMO). The JDIMS system is a repository of centralized information, but does not and could not hold all information that is in the possession of the United States Government regarding a particular detainee.

b. JIG personnel regularly use and rely on this data base as a primary resource when conducting research about detainees and their interrelationships, when pre paring for interrogations and when responding to official requests for information about detainees, as well as for other mission-critical functions. Accordingly, the JIG regularly populates the database with new detainee in formation developed or uncovered through research and interrogations, and that is assessed as pertinent to the detainee.

c. Because the JDIMS system represented one of the most complete repositories of information on each detainee, it was used as the starting point for gathering the material that would qualify as the Government In formation. Additionally, this database permits the inter relationships between individuals and/or organizations to be searched and cross-referenced electronically. Ulti mately, most of the data qualifying as Government In formation were found through JDIMS. The Team also followed references that arose in these files-if a file revealed possible locations for more information, the Team pursued those leads.

8. The second database regularly searched by the Team was the database system called I2MS, used pri marily by investigators from the Criminal Investigation Task Force (the investigatory arm for the Office of Mili tary Commissions). This system holds information per taining to individual detainees collected by CITF from both the law enforcement and intelligence communities, and would include files on the detainees developed by the authorities who captured the detainees and trans ferred them to Guantanamo, files relating to any subse quent reviews of the determination to continue to hold the detainee, and interrogation files. The Team also followed references that arose in these files-if a file revealed possible locations for more information, the Team pursued those leads.

9. Third, the Team reviewed paper files in the pos session of JTF-GTMO, as well as other Department of Defense databases and files and might contain informa tion on the detainee.

10. The Team also had the ability to submit requests for information to other organizations within the De partment of Defense and to other federal agencies that might have information bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant, that was not already in the JDIMS database. These requests included information above the classification level of SECRET.

a. In both the initial data search and in requests for additional information from other agencies, the Team's requests would be for any information bearing on the issue of whether the detainee meets the criteria to be designated as any enemy combatant, and also specifi cally asked those agencies to provide any information that might suggest the detainee should not be desig nated as an enemy combatant.

b. In some instances, the Team did not directly ob tain copies of Government Information from certain in telligence agencies. Instead, upon request, certain agencies allowed properly cleared members of the Team to review the organization's information responsive to their request in order to satisfy the Team's request that the agencies produce reasonably available information under the CSRT procedure. The Team could use infor mation the agency authorized from inclusion in the CSRT record to support an enemy combatant status. However, during their review, there were instances where the Team was not permitted to use certain docu ments as Government Evidence or to make copies of them, because release of these documents could reason ably be expected to cause harm to national security by revealing sensitive information such as sources or meth ods. These searches were broadly based on names and other available identifying information, and involved voluminous responsive documents, many of which were found not relevant to the determination of whether a detainee continued to meet the criteria for designation as an enemy combatant.

c. In other instances, the Team would submit a re quest for information to law enforcement agencies; how ever, these agencies would not always provide the Team with information contained in certain files, due to the fact there was an ongoing investigation. In these cases, the law enforcement agencies would do a search of the information requested and provide the Team with docu mentation stating that none of the information withheld would support a determination that the detainee is not an enemy combatant.

d. The Team never encountered a situation where an agency objected to the use of information that suggested a detainee should not be designated as an enemy com batant.

11. A file of information was gathered as a result of these inquiries, but it did not necessarily include all ma terial that might be considered to meet the definition of "Government Information" in the CSRT procedures. CSRT Procedures, Enc. 1, § E(3).

a. First, material that might qualify as Government Information from government databases would be re viewed, but might not be collected in a distinct file if it was viewed as being not relevant or only marginally rel evant.

b. Second, as explained in Paragraph 10, some mate rial in the possession of intelligence agencies that would likely qualify as Government Information would be re viewed, but could not be collected or used as Govern ment Evidence, because of the sensitivity of the mate rial.

12. In some instances, all of the compiled Govern ment Information referred to in Paragraph 11 above was included in the Government Evidence. In fact, however, the Recorder was required to present to the tribunal only "such evidence in the Government Information as may be sufficient to support the detainee's classification as an enemy combatant..." CSRT Procedures, Enc. 1, § H(4) (emphasis added). Therefore in many instances not all of the Government Information was included as Government Evidence. Three primary considerations were employed in selecting the Government Evidence from among this information.

a. First, with respect to information derived from intelligence agencies, those agencies needed to approve the use of their information as part of the Government Evidence before it could be presented to the CSRT, par ticularly if that information was going to be used in the unclassified portion of the CSRT. If the agency or orga nization declined to approve the use of information tend ing to show that the detainee was an enemy combatant, it was deemed "not reasonably available." Often the primary reason that this information could not be used as Government Evidence is because release of these doc uments could reasonably be expected to cause harm to national security by revealing sensitive information such as sources or methods. Also, there was a concern about dissemination of this information beyond what was nec essary. That said, the Team never encountered a situa tion where an agency objected to the use of information that suggested a detainee should not be designated as enemy combatant.

b. Second, information was often duplicative of other information. Material was frequently not presented to the CSRT as part of the Government Evidence because it would merely duplicate other information already in cluded in the Government Evidence and therefore would be unnecessarily redundant.

c. Third, the Recorder might elect not to use certain information as Government Evidence if the Recorder determined that other data being used as Government Evidence appeared sufficient to support the detainee's classification as an enemy combatant. For example, if a detainee was alleged to be an enemy combatant based on six actions he was allegedly involved in and these six actions were supported by documents already in the Government Evidence, the Recorder could decide not to include documents about additional actions that the de tainee took that would also suggest that the detainee is an enemy combatant. As a result, no Government Infor mation excluded from the Government Evidence was taken into consideration by the CSRT in reaching a de termination as to enemy combatant status.

13. The CSRT procedures specify that "[i]n the event the Government Information contains evidence to suggest that the detainee should not be designated as an enemy combatant, the Recorder shall also provide such evidence to the Tribunal." CSRT Procedures, Enc. 2, § B.1; see CSRT Procedures, Enc. 1, § H.4 (same).

a. The Team and Recorder ensured that, as they reviewed Government Information, all material that might suggest the detainee should not be designated as an enemy combatant was identified and included in the materials presented to the CSRT and included in the CSRT Record. Thus, the Team and Recorder did not exclude any such material even if it had been originally obtained from other intelligence agencies. They also did not exclude any such material based on any sort of suffi ciency assessment. However, if certain information was suggested that the detainee should not be designated as an enemy combatant was duplicative, the Recorder might decide not to include that duplicative information in the Government Evidence.

b. There was one other circumstance where this type of material may be excluded from the Government Evidence-if it did not relate to a specific allegation be ing made against the detainee. For example, if the gov ernment had data that indicated the detainee had en gaged in a certain specific combatant activity and also had evidence that he had not engaged in that specific activity, the Team and Recorder could elect to present no data about that specific activity at all. In short, if the Recorder decided not to demonstrate to the CSRT that a specific incident relating to the detainee occurred, the Recorder could decide not to submit evidence to the CSRT suggesting that the specific incident did not occur.

14. In addition to the Government Evidence, the following factual material was presented to the CSRT and made part of the CSRT record:

(a) material submitted by the detainee or his Per sonal Representative;

(b) testimony of the detainee or witnesses deemed relevant and reasonably available.

(c) material obtained by the CSRT panel through its own requests for information.

15. After the CSRT deliberated and reached its con clusion, the CSRT determination was reviewed by the CSRT Legal Advisor and the CSRT Director. CSRT Procedures, Enc. 1, § I(7) & (8). If the CSRT concluded, based upon the evidence before it, that the detainee should no longer be classified as an enemy combatant, the CSRT Director would notify the intelligence agen cies and provide them an opportunity to submit addi tional information relating to the detainee or to recon sider any of their prior decisions that had prevented the Recorder from using their material as Government Evi dence at the CSRT. Additionally, if the CSRT Legal Advisor or CSRT Director returned the record to the CSRT for further proceedings, the Recorder would have the ability to supplement the material presented to the CSRT as Government Evidence.

16. Both the CSRT Order and CSRT Regulations specifically defined the record as including (among other things) "all the documentary evidence presented to the tribunal" (Government Evidence). CSRT Order, 7 July 2004, para g(3), and CSRT Procedures, Enc. 1., para I(5). There was no requirement for OARDEC to com pile a record of material comprising all of the records in government files that would qualify as Government In formation. The Recorder was required only to prepare a "Record of Proceedings" which must include 1) a state ment of the time and place of the hearing, persons pres ent, and their qualifications; 2) The Tribunal Report Cover Sheet; 3) the classified and unclassified reports detailing the findings of fact upon which the Tribunal decision was based; 4) copies of all documentary evi dence presented to the tribunal and summaries of all witness testimony; and 5) a dissenting member's sum mary report, if any. CSRT Procedures, Enc. 2, § C(8). However, OARDEC made an effort to retain the Gov ernment Information as referred to in Paragraph 11, compiled for each CSRT. It is my understanding that despite their efforts, some of these electronic files be came corrupted following a technical change-over from one computer system to another in 2005. That has made it difficult to fully recreate the electronic files of Govern ment Information compiled for each tribunal. I also un derstand that OARDEC is currently working to retrieve stored data from system archives to see if it is possible to recreate the files. As of this date, OARDEC is uncer tain whether this is possible.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true, accurate, and correct.

 

 

 

 

Date: May 2007 /s/ JAMES M. MCGARRAH

JAMES M. MCGARRAH

Real Admiral, Civil Engineer Corps, U.S. Navy (Retired)

Special Assistant

Office of the Deputy Assis- tant Secretary of Defense,

Detainee Affairs

 

1 I understand that the CIA has made classified information available to detainee counsel in previous habeas corpus cases in the district courts. The amount of information that will be made at issue by the Bismullah decision, however, is far more voluminous and far more sensitive than that information that has been made available before.

2 (U) ACS is used for investigative and analytical searches, uploading or downloading documents, and setting investigative leads.

3 Among other duties, the Recorder must attend and present evidence at CSRT hearings and prepare the records of those proceed ings. See CSRT Procedures, Enc. 2, § C.