Bismullah v. Gates, 06-1197.

• Decision Date: 20 July 2007
• Docket Number: No. 06-1397.,No. 06-1197.,06-1197.,06-1397.
• Citation: 501 F.3d 178
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

501 F.3d 178

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.

No. 06-1197.

No. 06-1397.

United States Court of Appeals, District of Columbia Circuit.

Argued May 15, 2007.

Decided July 20, 2007.

As Amended October 23, 2007.

On Motions.

Jeffrey I. Lang argued the cause for petitioners Haji Bismullah, et al. Sabin

Willett argued the cause for petitioners Huzaifa Parhat, et al. With them on the briefs were Rheba Rutkowski, Neil G. McGaraghan, Jason S. Pinney, Susan B. Manning, John B. Missing, Jennifer R. Cowan, and Jill van Berg.

Douglas N. Letter, Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, Gregory G. Katsas, Principal Deputy Associate Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, and Robert M. Loeb and August E. Flentje, Attorneys.

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

Opinion for the court filed by Chief Judge GINSBURG.

Concurring opinion filed by Circuit Judge ROGERS.

GINSBURG, Chief Judge:

Petitioners are eight men detained at the Naval Station at Guantánamo Bay, Cuba. Each petitioner seeks review of the determination by a Combatant Status Review Tribunal (CSRT or Tribunal) that he is an "enemy combatant." In this opinion we address the various procedural motions the parties have filed to govern our review of the merits of the detainees' petitions. The petitioners as a group and the Government each propose the court enter a protective order to govern such matters as access to and handling of classified information; the petitioners move to compel discovery and for the appointment of a special master; and the Government asks the court to treat the seven petitioners who filed the joint petition in Parhat v. Gates (No. 06-1397) as though each had filed a separate petition to review his status determination.

In order to review a Tribunal's determination that, based upon a preponderance of the evidence, a detainee is an enemy combatant, the court must have access to all the information available to the Tribunal. We therefore hold that, contrary to the position of the Government, the record on review consists of all the information a Tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense, hereinafter referred to as Government Information and defined by the Secretary of the Navy as "such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant," which includes any information presented to the Tribunal by the detainee or his Personal Representative.

In addition, we must implement such measures to govern these proceedings as are necessary to enable us to engage in meaningful review of the record as defined above. Therefore, we will enter a protective order adopting a presumption, as proposed by the petitioners, that counsel for a detainee has a "need to know" the classified information relating to his client's case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information. The protective order also will provide that the Government may inspect correspondence from counsel to a detainee, including "legal mail," and redact anything that does not pertain to the events leading up to the detainee's capture and culminating in the conduct of his CSRT, including such events in between as bear upon the decision of the Tribunal or our review thereof. Finally, the protective order will provide that a lawyer offering his or her services may, as the petitioners propose, have up to two visits with a detainee in order to obtain the detainee's authorization to seek review of the CSRT's determination of his status.

Before entering the protective order, the court will give the parties an opportunity to suggest changes.

I. Background

Each petitioner is a foreign national captured abroad and held at Guantánamo, seeking review of a decision of a CSRT determining that he is an "enemy combatant" and therefore subject to detention for the duration of hostilities. Haji Bismullah was captured in Afghanistan in 2003. Huzaifa Parhat and the six other detainees joining his petition are ethnic Uighurs who allege they were captured in Pakistan in approximately December 2001.

A. The Regulations

In a July 2004 Memorandum for the Secretary of the Navy, the Secretary of Defense established skeletal procedures for the conduct of CSRT proceedings with respect to foreign nationals held at Guantánamo to "review the detainee's status as an enemy combatant." The Secretary of the Navy, who was "appointed to operate and oversee [the CSRT] process," promptly issued a memorandum specifying detailed procedures (Navy Memorandum), which are still in effect.^*

Pursuant to those procedures, a CSRT reviews the determination, made after "multiple levels of review by military officers and officials of the Department of Defense," (E-1 § B) that a detainee is an "enemy combatant," defined as "an individual who was part of or supporting Taliban or Al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." (E-1 § B) A Tribunal is composed of "three neutral commissioned officers" who were not involved in the "apprehension, detention, interrogation, or previous determination of status of the detainee[]." (E-1 § C(1)) The Tribunal is to "determine whether the preponderance of the evidence supports the conclusion that each detainee meets the criteria to be designated as an enemy combatant." (E-1 § B) There is a rebuttable presumption that the Government Evidence, defined as "such evidence in the Government Information as may be sufficient to support the detainee's classification as an enemy combatant" (E-1 § H(4)) is "genuine and accurate" (E-1 § G(11)).

The Tribunal is authorized to request the production of "reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant," (E-1 § E(3)) and the Recorder, a military officer, is charged with obtaining from government agencies and reviewing all such Government Information (E-2 § C(1)). The Recorder must present, orally or in documentary form (E-2 § C(6)), both the Government Evidence and, if any there be in the Government Information, all "evidence to suggest that the detainee should not be designated as an enemy combatant." (E-1 § H(4), E-2 § B(1)) In advance of the Tribunal hearing, the Recorder must prepare an unclassified summary of the relevant Government Information and provide the summary to the detainee's Personal Representative, also a military officer. (E-2 § C(2), (4))

Each detainee's Personal Representative reviews the Government Evidence the Recorder plans to present to the Tribunal (E-3 § C(3)), has access to the Government Information (E-3 § C(2)), and meets with the detainee to explain the CSRT process. The Personal Representative may not, however, share classified information with the detainee. (E-3 § C(4)) The Personal Representative "shall present information to the Tribunal if the detainee so requests" and "may, outside the presence of the detainee, comment upon classified information submitted by the Recorder." (E-3 § C(5)) The detainee may testify or introduce relevant documentary evidence at the hearing, but may not be compelled to answer questions. (E-1 § F(6)-(7)) He also may present the testimony of any witness who is "reasonably available and whose testimony is considered by the Tribunal to be relevant." (E-1 § F(6))

After the hearing, the Recorder compiles a "Record of Proceedings," consisting of (1) a statement of the time and place of the hearing and the names of those present; (2) the Tribunal Decision Report cover sheet,^* which is accompanied by (a) the classified and unclassified reports made by the Recorder "upon which the Tribunal decision was based" and (b) copies of all documentary evidence presented to the CSRT; (3) a summary prepared by the Recorder of each witness's testimony; and (4) the summary report written by any dissenting member of the Tribunal. (E-2 § C(8), E-1 § G(12))

Each Tribunal has a "Legal Advisor" with whom the members may consult regarding legal, evidentiary, procedural, and like matters. (E-1 § C(4)) The Legal Advisor reviews for legal sufficiency both the CSRT's rulings on whether witnesses and evidence are reasonably available and its ultimate determination of the detainee's status. (E-1 § I(7)) The Legal Advisor forwards the Record of Proceedings to the "Director, CSRT," (E-1 § I(5)) who reviews the decision as well. (E-1 § I(8), E-2 § C(10)) If approved by the Director, CSRT, then the decision becomes final. (E-1 § I(8))

B. The Statutes

In December 2005 the President signed into law the Detainee Treatment Act (DTA), Pub.L. No. 109-148, § 1005(e)(2)(A), 119 Stat. 2742-43, which vests in this court exclusive jurisdiction "to determine the validity of any final decision of a [CSRT] that an alien is properly detained as an enemy combatant." Section 1005(e)(2)(C) of the Act provides:

The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of —

(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the...