Bismullah v. Gates

• Decision Date: 03 October 2007
• Docket Number: No. 06-1397.,No. 06-1197.,06-1197.,06-1397.
• 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

503 F.3d 137

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.

October 3, 2007.

On Petition for Rehearing.

Peter D. Keisler, Acting Attorney General, Paul Clement, Solicitor General, Gregory G. Katsas, Acting Associate Attorney General, Gregory G. Garre, Deputy Solicitor General, Jonathan F. Cohn, Deputy Assistant Attorney General, and Douglas N. Letter, Robert M. Loeb, August E. Flentje, and Catherine Y. Hancock, Attorneys, U.S. Department of Justice, were on the petition for rehearing for respondent.

John B. Missing, Jeffrey I. Lang, and Jennifer R. Cowan, for Huzaifa Parhat, et al., and Sabin Willett, Rheba Rutkowski, Neil McGaraghan, Jason S. Pinney, and Susan Baker Manning for Haji Bismullah, et al., were on the joint opposition to the petition for rehearing.

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

Opinion for the Court filed by Chief Judge GINSBURG.

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 "enemy combatant." In our opinion of July 20, 2007, we addressed various procedural motions filed by the Government 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 Government then petitioned for rehearing or, in the alternative, suggested rehearing en banc. The petition for rehearing 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.¹ We deny the Government'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 conduct of a CSRT proceeding with respect to a foreign national held at Guantánamo to "review the detainee's status as an enemy combatant." 501 F.3d 178, 181. The Secretary of the Navy then issued a memorandum elaborating 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. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant, including information generated in connection with the initial determination to hold the detainee 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 hereinafter "Government Information").

E-1 § E(3); see 501 F.3d at 181. The Recorder must collect 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 Government 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 separately provide such evidence to the Tribunal.

E-1 § H(4); E-2 § B(1), C(6).

In Bismullah I the Government argued that the record on review should consist solely of the Record of Proceedings, which, under the DoD Regulations, includes only such Government Information as the Recorder 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 reasonably available to the Government," the petitioners contended that the record should include all of the Government 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 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 . . . )." DTA § 1005(e)(2)(C).² 501 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 preponderance of the evidence supported the conclusion of the Tribunal, cannot be ascertained without consideration 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 desire 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 enemy detainee who claims prisoner-of-war status under the Geneva Conventions. The Government asserts that Army Regulation 190-8 does not require "that the military 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 neither 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 Information exactly as it appears in the DoD Regulations themselves, the court in Bismullah I required the Government 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 consistent 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 include 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 required 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 entirely 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 performing 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 hundreds of thousands, of documents" relating to a given detainee. According to Deputy Secretary of Defense Gordon England, two offices within the DoD have expended well over 2000 man-hours in a recent effort to collect material relating to six detainees who have petitioned for review of their status determination.

The Government, it seems, is overreading Bismullah I and underreading the DoD Regulations. Those regulations 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 information without regard to whether it is "reasonably available" is clearly not required by Bismullah I.

Indeed, the Government states elsewhere in its petition for rehearing that it does "not believe that the information" it is now seeking "is properly considered `reasonably available.'"³ Apparently, the Government is searching for all relevant information without regard to whether it is reasonably available because it did not retain all the Government Information that the Recorder collected.⁴ The Government has consequently determined that it must now search for relevant...