Bismullah v. Gates, 06-1197.
| Decision Date | 01 February 2008 |
| Docket Number | No. 07-1508.,No. 07-1512.,No. 06-1397.,No. 07-1510.,No. 07-1509,,No. 07-1511.,No. 06-1197.,No. 07-1523.,06-1197.,06-1397.,07-1508.,07-1509,,07-1510.,07-1511.,07-1512.,07-1523. |
| 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. Abdusabour, Petitioner v. Robert M. Gates, U.S. Secretary of Defense, et al., Respondents. Abdusemet, Petitioner v. Robert M. Gates, U.S. Secretary of Defense, et al., Respondents. Jalal Jalaldin, Petitioner v. Robert M. Gates, U.S. Secretary of Defense, et al., Respondents. Khalid Ali, Petitioner v. Robert M. Gates, U.S. Secretary of Defense, et al., Respondents. Sabir Osman, Petitioner v. Robert M. Gates, U.S. Secretary of Defense*, et al., Respondents. Hammad, Petitioner v. Robert M. Gates, Secretary of Defense and Wade F. Davis, Colonel, USA, Respondents. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John Barnaby Missing, Debevoise & Plimpton, LLP, Washington, DC, Jennifer Rose Cowan, Jeffrey Ira Lang, Jill Van Berg, Debevoise & Plimpton LLP, New York, NY, for Petitioners.
Robert Mark Loeb, Douglas N. Letter, Litigation Counsel, August Edward Flentje, Jonathan Fredrick Cohn, Peter Douglas Keisler, Gregory George Katsas, Department of Justice, Washington, DC, for Respondents.
Before: GINSBURG, Chief Judge, and SENTELLE, HENDERSON, RANDOLPH, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and KAVANAUGH, Circuit Judges.
A separate statement concurring in the denial of rehearing en banc filed by Chief Judge GINSBURG, with whom Circuit Judges ROGERS, TATEL, and GRIFFITH join, is attached.
A separate statement concurring in the denial of rehearing en banc filed by Circuit Judge GARLAND is attached.
A separate statement dissenting from the denial of rehearing en banc filed by Circuit Judge HENDERSON, with whom Circuit Judges SENTELLE, RANDOLPH, and KAVANAUGH join, is attached.
A separate statement dissenting from the denial of rehearing en banc filed by Circuit Judge RANDOLPH, with whom Circuit Judges SENTELLE, HENDERSON, and KAVANAUGH join, is attached.
A separate statement dissenting from the denial of rehearing en banc filed by Circuit Judge BROWN is attached.
Respondents' petition for rehearing en banc and the response thereto were circulated to the full, court, and a vote was requested. Thereafter, a majority of the judges eligible to participate did not vote in favor of the petition. Upon consideration of the foregoing and the motion to expedite review of the petition for rehearing en banc and any subsequent proceedings; the motion for leave to file ex parte/in camera top secret-SCI declarations for judges' review only and the joint opposition thereto; and the letters filed pursuant to Federal Rule of Appellate Procedure 28(j), it is
ORDERED that the petition for rehearing en banc be denied. It is
FURTHER ORDERED that the motion to expedite be dismissed as moot. It is
FURTHER ORDERED that the motion for leave to file ex parte/in camera top secret-SCI declarations for judges' review only be granted.
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 (D.C.Cir. 2007); Bismullah v. Gates (Bismullah I), 501 F.3d 178, 185-86 (D.C.Cir.2007); E-1 § E(3). In his dissent from the court's denial of rehearing en banc, Judge Randolph says of the panel's ruling that it "is contrary to the rule and the statute governing the contents of the record in cases such as these, it violates the restrictions on our jurisdiction in the Detainee Treatment Act [(DTA), Pub.L. No. 109.448, § 1005(e)(2), 119 Stat. 2680, 2742-43 (Dec. 30, 2005) () 1 and it risks serious security breaches for no good reason." Stmt. of Randolph, J., at 1302. Like Judge Randolph, I would not ordinarily write a separate opinion on a denial of rehearing en banc, but his suggestion that the panel's decision was not only erroneous but also dangerous should not go unremarked.
Judge Randolph contends that 28 U.S.C. § 2112(b) and Federal Rule of Appellate Procedure 16(a), which implements § 2112(b), "make crystal clear that ... the record does not include information never presented to the Combatant Status Review Tribunal" (CSRT).1 Stmt. of Randolph, J., at 1303. 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, commission, administration, authority, board or bureau of the United States ... unless the context shows that such term was intended to be used in a more limited sense." 28 U.S.C. § 451. Judge Randolph asserts that § 2112(b) applies to our review pursuant to the DTA of a CSRT's status determination because a CSRT is within a military department and a "military department is a `department' under § 451, and thus an `agency' under § 2112(b)." Stmt. of Randolph, J., at 1303.
Section 2112(b) does not define the record on review of a CSRT proceeding because a military department is not an agency under 28 U.S.C. § 451. Several provisions of Title 28 distinguish between an "agency" and a "military department," which necessarily implies that a military department is not an agency. See 28 U.S.C. § 530D(e) (); 28 U.S.C. § 530C(b)(L)(iv) (); 28 U.S.C. § 530D(d) (); cf. 28 U.S.C. § 2671 ().2
Judge Randolph dismisses these provisions on the ground that in them the term "agency" is always modified by "executive" or "federal," which suggests a more limited conception of "agency" there than in § 451, where it appears without modification. Stmt. of Randolph, J., at 1303. For confirmation, he points to § 2 of the Administrative Procedure Act, 5 U.S.C. § 551(1)(F), which excludes "courts martial and military commissions" from the definition of "agency" for purposes of that Act. Stmt. of Randolph, J., at 1303 & n. 3. Judge Randolph seems to believe that by defining "agency" broadly and then excluding courts martial and military commissions, the APA implies that courts martial and military commissions are agencies except where "expressly excluded"; because Title 28, unlike the APA, does not expressly exclude courts martial and military commissions from its scope, courts martial and military commissions are presumably agencies for purposes of that title, including §§ 451 and 2112.
This reasoning tells us nothing about a CSRT, however, unless a CSRT is a court martial or military commission, which it assuredly is riot. See 10 U.S.C. § 802 (); 10 U.S.C. § 817 (); 10 U.S.C. §§ 877-934 (); see 10 U.S.C. § 948b(f) (defining "military commission"); 10 U.S.C. § 948d(c) (); compare DTA § 1005(e)(2) () with DTA § 1005(e)(3) ().3 Not coming within any exclusion from the APA, therefore, a CSRT must be either an agency subject to the APA or, as I believe it is, something sui generis and outside the contemplation of the APA. If a CSRT were an agency subject to the APA, then the detainees at Guantánamo would presumably be entitled to the significant procedural rights afforded by the APA. The notion that a CSRT is subject to the APA is completely inconsistent with the Congress' understanding when, by enacting the DTA, it ratified the, procedural framework for CSRTs established by the DoD Regulations. In summary, a CSRT can be structured as it is under the DoD Regulations only because it is not a court martial, not a military commission, and not an agency.4
It would be particularly untoward to apply § 2112(b) outside its apparent field of application—and particularly improbable the Congress so intended—when the result would be to preclude the court from discharging the review function assigned to it in the DTA. That review function is broader than Judge Randolph suggests. The DTA charges the court with reviewing not only "whether ... the conclusion of the Tribunal [was] supported by a preponderance of the evidence," but also whether it was reached in a manner "consistent with the standards and procedures specified by the Secretary of Defense" for CSRTs. DTA § 1005(e)(2)(C).
The DoD Regulations, which establish the "standards and procedures" to be followed by the Recorder, the detainee's Personal Representative, and the CSRTs themselves, require the Recorder to obtain all the Government Information, E-1 § C(2); E-2 § C(1), to cull from the Government Information and forward to the Tribunal such information "as may be...
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