Al Odah v. U.S., 05-5117.

• Citation: 559 F.3d 539
• Decision Date: 06 March 2009
• Docket Number: No. 05-5126.,No. 05-5124.,No. 05-5121.,No. 05-5127.,No. 05-5120.,No. 05-5125.,No. 05-5117.,No. 05-5123.,05-5117.,05-5120.,05-5121.,05-5123.,05-5124.,05-5125.,05-5126.,05-5127.
• Parties: Khaled A.F. AL ODAH, next friend of Fawzi Khalid Adbullah Fahad Al Odah, et al., Appellees v. UNITED STATES of America, et al., Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

559 F.3d 539

Khaled A.F. AL ODAH, next friend of Fawzi Khalid Adbullah Fahad Al Odah, et al., Appellees v. UNITED STATES of America, et al., Appellants.

No. 05-5117.

No. 05-5120.

No. 05-5121.

No. 05-5123.

No. 05-5124.

No. 05-5125.

No. 05-5126.

No. 05-5127.

United States Court of Appeals, District of Columbia Circuit.

March 6, 2009.

Appeals from the United States District Court for the District of Columbia (No. 02cv00828).

August E. Flentje, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Gregory G. Katsas, Assistant Attorney General at the time the briefs were filed, Jonathan F. Cohn, Deputy Assistant Attorney General, Douglas N. Letter, Terrorism Litigation Counsel, and Robert M. Loeb, Attorney.

David H. Remes argued the cause and filed the briefs for appellees.

Before: GARLAND and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

PER CURIAM:

These consolidated cases come to us with a long history. We now review a 2005 order of the district court compelling disclosure of certain classified information to counsel for certain detainees held at Guantanamo Bay, Cuba. That discovery order was issued well before the Supreme Court, in its June 2008 opinion in Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), ruled that the writ of habeas corpus is available to these detainees, and well before the district court issued the case management order that currently governs their habeas proceedings.¹ After issuing the discovery order the district court stayed all proceedings in these cases pending resolution of the government's appeal from the court's denial of its motion to dismiss the detainees' habeas petitions. This circuit, in turn, held the government's appeal from the discovery order in abeyance pending the circuit's and the Supreme Court's resolution of other appeals regarding the detainees' legal status. After the Supreme Court issued Boumediene, the parties filed motions to govern, and this appeal from the discovery order was taken out of abeyance and assigned to the present panel.

The parties now largely agree upon the legal framework that should govern the issuance of discovery orders of this kind, as do we. In accordance with that framework, we remand the discovery order to the district court so that it may consider the findings required before such an order may issue. In so doing, we note several specific points concerning the manner in which a remand under that framework should proceed.

I

We begin with a brief overview of the relevant chronology and then move to a more detailed description of the developments that led to the discovery order at issue here.

A

The Department of Defense (DOD) ordered the detention at the U.S. Naval Base at Guantanamo Bay, Cuba of certain foreign nationals captured abroad after al Qaeda attacked the World Trade Center and the Pentagon on September 11, 2001. Boumediene, 128 S.Ct. at 2241. To determine whether Guantanamo Bay detainees are "enemy combatants," as defined by DOD, the Deputy Secretary of Defense established Combatant Status Review Tribunals (CSRTs). Id. Each CSRT relied on an administrative record compiled by a military officer to support the government's case for detention. See Bismullah v. Gates, 501 F.3d 178, 181-82 (D.C.Cir. 2007), vacated, ___ U.S. ___, 128 S.Ct. 2960, 171 L.Ed.2d 881 (2008), reinstated, Order, No. 06-1197 (D.C.Cir. Aug. 22, 2008), petitions dismissed for lack of jurisdiction, 551 F.3d 1068 (D.C.Cir.2009). Separate CSRTs concluded that the petitioners here were enemy combatants. To contest their detentions, they filed petitions for writs of habeas corpus in the United States District Court for the District of Columbia.

Roughly two years after the first detainees arrived at Guantanamo, the Supreme Court held that the federal habeas statute, 28 U.S.C. § 2241, applied to their detention. Rasul v. Bush, 542 U.S. 466, 481, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004). Most of the Guantanamo habeas cases were then consolidated before a single district judge to "coordinate and manage all proceedings ... and to the extent necessary, rule on procedural and substantive issues." Order at 6, Rasul v. Bush, No. 02-0299 (D.D.C. Aug. 17, 2004). On January 31, 2005, the district court denied the government's motion to dismiss the petitions for failure to state a claim upon which relief can be granted. In re Guantanamo Detainee Cases, 355 F.Supp.2d 443, 464 (D.D.C.2005), vacated, Boumediene v. Bush, 476 F.3d 981 (D.C.Cir. 2007), rev'd, ___ U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). The court also granted petitioners' counsel access to the complete (unredacted) classified factual returns filed by the government in support of detention. Order Granting Nov. 8, 2004 Mot. to Designate "Protected Information" and Granting Nov. 18, 2004 Mot. for Access to Unredacted Factual Returns at 2, In re Guantanamo Detainee Cases, No. 02-0299 (D.D.C. Jan. 31, 2005) [hereinafter Discovery Order]. The government appealed both orders. The district court then stayed the proceedings "for `all purposes' pending resolution of all appeals in this matter." Order Granting in Part and Denying in Part Respondents' Mot. for Certification of Jan. 31, 2005 Orders and for Stay at 2, In re Guantanamo Detainee Cases, No. 02-0299 (D.D.C. Feb. 3, 2005).

While those appeals were pending, Congress twice amended 28 U.S.C. § 2241 to deny the Guantanamo detainees habeas review. First, Congress passed the Detainee Treatment Act of 2005(DTA), Pub.L. No. 109-148, 119 Stat. 2680 (2005), but the Supreme Court held that the provision of the DTA depriving courts of jurisdiction over the detainees' habeas petitions did not apply to cases pending when the DTA was enacted. Hamdan v. Rumsfeld, 548 U.S. 557, 575-78, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006). Next, Congress passed the Military Commissions Act of 2006(MCA), Pub.L. No. 109-366, 120 Stat. 2600 (2006) (codified in part at 28 U.S.C. § 2241 & note), but the Supreme Court's Boumediene decision declared that the detainees have a constitutional right to habeas and struck down the jurisdiction-stripping provision of the MCA as an unconstitutional suspension of the writ. 128 S.Ct. at 2240.

This circuit had held the appeal of the Discovery Order in abeyance pending the outcome of Boumediene. See Order at 1-2, Al Odah v. United States, No. 05-5117 (D.C.Cir. Mar. 17, 2006); see also Order at 1, Al Odah v. United States, No. 05-5117 (D.C.Cir. Aug. 8, 2007). After Boumediene issued, the parties filed motions to govern, and the case was set for supplemental appellate briefing and oral argument. At the same time, the district court made additional preparations to manage the detainee habeas caseload and resolved, through executive session on July 1, 2008, to designate another district judge "to coordinate and manage proceedings in [nearly] all cases involving petitioners presently detained at Guantanamo Bay, Cuba." See Order at 1-2, In re: Guantanamo Bay Detainee Litigation, No. 08-442, 2008 WL 4533561 (D.D.C. July 7, 2008). On November 6, the day before oral argument in the present appeal, the new coordinating judge issued a case management order detailing the procedures for the disclosure of classified information going forward. See Case Management Order, In re: Guantanamo Bay Detainee Litigation, No. 08-442 (D.D.C. Nov. 6, 2008), amended by Order (D.D.C. Dec. 16, 2008). At oral argument, both sides agreed that the district court's new case management order does not affect the finality of this appeal.

And so, in this case we confront a January 31, 2005, Discovery Order that predates both Boumediene and the district court's current case management order, but nonetheless remains operative with respect to a small group of classified factual returns. We discuss the genesis and content of that order in more detail below.

B

In August 2004, the district court issued an order that incorporated the government's proposed schedule for filing returns identifying the factual support for each petitioner's detention as an enemy combatant. See In re Guantanamo Detainee Cases, 355 F.Supp.2d at 451. As factual support, the government submitted the records from the petitioners' CSRT proceedings. Id. The government filed its returns on a rolling basis as the CSRT proceedings were completed, submitting the earliest in September and the latest in December 2004. Id. at 451-52. Because each CSRT record contained classified information, the government filed redacted, unclassified versions on the public record and submitted the full, classified versions for the court's in camera review. Id. at 452. The government also served copies containing most but not all of the classified information in the court's copies on those petitioners' counsel who had obtained security clearances. Id. During this period, the district court issued multiple orders regarding the submission of the factual returns, including a protective order. Amended Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba, In re Guantanamo Detainee Cases, No. 02-0299 (D.D.C. Nov. 8, 2004) [hereinafter Protective Order].

In November 2004, in response to the government's notice indicating that it would not provide cleared counsel with all of the classified information in the factual returns submitted to the court, the petitioners' counsel moved for "immediate access to the unredacted returns." Petitioners' Motion for Access to Unredacted Factual Returns and to Compel Respondents to Comply with Order on Protected Information Procedures at 1-2, In re Guantanamo Detainee Cases, No. 02-0299 (D.D.C. Nov. 18, 2004). In reply, the government stated that it had redacted from counsel's copies two categories of classified information: (1) information "pertain[ing] to individuals other than the detainee at issue," Government's Supp. Br. 5, which information, the government said, the...