United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed February 1, 2008

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

________
2

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

_______
3

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

_______
4

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 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. 
5

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 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.
1

 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

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 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. 109-148, §

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).1 Stmt. of Randolph, J., at 1-2. Section
2

Record of Proceedings constitutes the record on review for reasons

stated in the panel’s two opinions. See Bismullah I, 501 F.3d at 184-

86; Bismullah II, 503 F.3d at 139-41.

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 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 “military department,”

which necessarily implies that a military department is not an

agency. See 28 U.S.C. § 530D(e) (“executive agencies and

military departments”); 28 U.S.C. § 530C(b)(L)(iv) (“executive

agency or military department”); 28 U.S.C. § 530D(d)

(“executive agency or military department”); cf. 28 U.S.C. §

2671 (defining “[f]ederal agency” specifically to include “the

military departments” for purposes of certain sections of Title 28
3

2 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”).

that have no bearing upon § 2112).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 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 commissions” from the definition of “agency” for

purposes of that Act. Stmt. of Randolph, J., at 3 & 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 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
4

3

 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

concurring 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.

4

 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. §§ 948q950j (defining procedures for military commission). 

U.S.C. § 948d(c) (distinguishing military commission from

CSRT); compare DTA § 1005(e)(2) (“Review of decisions of

combatant status review tribunals of propriety of detention”)

with DTA § 1005(e)(3) (“Review of final decisions of military

commissions”).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
5

5

 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

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 sufficient

to support the detainee’s classification as an enemy combatant”

together with all exculpatory information, E-1 § H(4); E-2 §§

B(1), C(6), and to share all the Government Information with the

detainee’s Personal Representative, 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.5

 See
6

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 context 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 Information if in his view it was

“duplicative” or “if it did not relate to a specific allegation being made

against the detainee”).

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 collect and forward. See Bismullah I, 501 F.3d at 185-86;

Bismullah II, 503 F.3d at 139-40. Irrespective, therefore, 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 Recorder in any particular

detainee’s case” because “Recorders ... 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
7

6

 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.

either “reassemble the Government Information it did collect or

... convene a new CSRT.” Bismullah II, 503 F.3d at 141-42.6 

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 Tribunal. 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, counsel may see

and draw the attention of the court to any arguably exculpatory

Government Information the Recorder did not put before the

Tribunal. See Decl. of Stephen Abraham, Lieutenant Colonel,

U.S. Army Reserve ¶¶ 10-17 (June 15, 2007) (“asked to confirm

and represent in a statement to be relied upon by the CSRT

board members that the [originating intelligence] organizations

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 available

information”).
8

7

 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).

 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).

Unlike the final decision rendered in a criminal or an agency

proceeding, which is the product of an open and adversarial

process before an independent decisionmaker, 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

lawyer 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).7

 As a result, the Recorder’s failure to adhere to the

DoD Regulations can influence the outcome 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
9

8

 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

charade when it enacted the DTA. Thus, the analogy Judge

Henderson draws between our review of status determinations

under the DTA and our review of agency decisions, Stmt. of

Henderson, J., at 3-4, is inapt. 

Judge Henderson’s comparison of a status determination

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 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 possession, can we not do so in reviewing the

evidence supporting the ‘enemy combatant’ designation?” Stmt.

of Henderson, J., at 2-3. The critical question, 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

review 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.8

 Thereafter, it may be
10

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.h

tml, 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.

9

 The Supreme Court left open the question whether the

Government 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)).

that nothing 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)9

; 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, however, accommodated, to the full extent

requested by the Government, its position that certain types of
11

Government 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 Government Information that

is either ‘highly sensitive information, 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, “decline[] to

authorize [classified information] for use in the CSRT process,”

presumably for reasons of national security, 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 standard.” 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
12

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

rendering it “not reasonably available.”

In closing, I note that the Supreme Court, in the order

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

merits 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 Government’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 Boumediene 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 decision in Bismullah, et al. v. Gates,

. . . currently pending in the United States Court of Appeals for

the District of Columbia Circuit,” and that “supplemental

briefing 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.
1

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) (Bismullah 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. Nevertheless, as set forth hereinbelow, matters remain that

were unaddressed at the panel level—matters that may be

determinative and should at least be heard and weighed by all of us.

KAREN LECRAFT HENDERSON, Circuit Judge, with whom

Circuit Judges SENTELLE, RANDOLPH, and KAVANAUGH join,

dissenting from the denial of rehearing en banc: The Detainee

Treatment Act of 2005 (DTA) gives exclusive jurisdiction to

this Court “to determine the validity of any final decision of

[the] Combatant 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 encompassed 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. Accordingly, I

dissent from the en banc denial.1

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 available” (again,

specified by DoD Regulation E-1 § E(3)) and, then, by

concluding that “information without regard to whether it is

‘reasonably available’ is clearly not required by Bismullah I.”

Bismullah II, 503 F.3d at 141. Bismullah II, however, leaves
2

2

Bismullah I does note that “the court cannot, as the DTA charges

us, consider whether a preponderance of the evidence supports the

Tribunal’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.

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.2

 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 preliminary hearing without knowing all

the evidence the prosecution 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 preliminary 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 function 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

combatant. Only if he is one can he, presumably, then be held

for trial before a military commission. If we can determine

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 possession, can we not do so in reviewing the
3

3

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]aptivity 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 measure’” (citations omitted))). 

evidence supporting the “enemy combatant” designation?3 And

should not all of us at least hear the arguments for and against,

especially 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

review 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 committed to the agency,

not the judiciary. A reviewing court is not to supplant the agency
4

4

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). 

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 record for the reviewing court is

limited to “that information before the [agency] at the time of

[its] decision, . . . thus excluding ex post supplementation of the

record 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 arguments 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 submissions

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).4

 Bismullah II, however, may be

unrealistically sanguine about the Government’s resulting

burden if the presumption is that it must disclose all Government

Information except what fits within the exceptions; according to

the Government’s submissions, which, I submit, we are illequipped to second-guess, the exceptions swamp the disclosable

information. Cf. Krikorian v. Dep’t of State, 984 F.2d 461, 464
5

5

I leave aside this Court’s likely burden if we do not consider en

banc the scope of the Government Information disclosable to the

detainees’ 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.

(D.C. Cir. 1993).5 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 Government

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 Michael V.

Hayden, Director of the Central Intelligence Agency; Gordon

England, Deputy Secretary of the Department 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 declarations, the five

officials—charged with safeguarding our country while we are

now at war—have detailed the grave national security concerns

the Bismullah I holding presents. “Without doubt, our

Constitution recognizes 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 represented that “military officers who are

engaged in the serious work of waging battle [will] be
6

6

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

Bismullah 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 Boumediene parties must submit. Nonetheless we do the Supreme

Court no favor by not fully considering potentially determinative

matters, including 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 argument—any of the issues raised by the three

dissents from the en banc denial.

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.

6

 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 Judges

SENTELLE, HENDERSON and KAVANAUGH join, dissenting 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 affidavits of the Directors of the Central

Intelligence Agency, the Federal Bureau of Investigation, and

the National Security Agency and the Director of National

Intelligence, 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 government must file, as the

“record” in each detainee review case, vast reams of classified

information to be shared presumptively with private defense

counsel, regardless whether any of this information was ever

presented 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 contents of the record

in cases such as these, it violates the restrictions on our

jurisdiction in the Detainee Treatment 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 decisions. This is

understandable because a separate statute governs “the contents

of the record in all proceedings instituted in the courts of appeals

to enjoin, set aside, suspend, modify, or otherwise review or

enforce orders of administrative agencies, boards, commissions,

and officers.” 28 U.S.C. § 2112(a). Subsection (b) of this

statute, and Rule 16(a) of the Federal Rules of Appellate
2

1

The statute provides that 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 . . ..” 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).”

2

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

documentary 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). 

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.1

 Yet neither of the panel’s two opinions even

mentions Rule 16(a) or § 2112(a).2

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 Ginsburg, C.J., at 2-5. While intended to

show that a Combatant Status Review Tribunal is not an
3

3

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

Tribunals are sui generis and for that reason are exempt from the

requirements 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 writer’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

“agency” for the purposes of § 2112(b), it indicates the opposite.

In Title 28, “‘agency’ 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. 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 Review 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 military commissions would be

covered as “agencies,” unless they were expressly excluded

from the Act. 5 U.S.C. § 551(1)(F).3
4

Tribunal.

4

Under Defense Department regulations, “Government

Information” 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). “Government 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

preponderance of the evidence supported the conclusion of the

Tribunal, cannot be ascertained without consideration of all the

Government Information.” 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 rationale could not hold and the Chief Judge

seems to have abandoned it. In legal proceedings before courts and

other adjudicative bodies, the classic 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, Presumptions 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 conclusion be so supported. DTA

The Chief Judge’s second explanation for disregarding

§ 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 function”? Apparently the idea is that the court will

look at how well the Recorder did his job in gathering

“Government Information” and how well he culled it in

presenting the information to the Tribunal as “Government

Evidence.”4 Id. at 5-9.
5

§ 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 regulation 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 information the

Tribunal never saw. 

5

The government predicts that for each detainee, the record

envisioned by the panel will consist of “hundreds of thousands[] of

documents.” Pet. for Rehearing 10. 

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 Tribunal, 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” information 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 Ginsburg has

ever given a satisfactory answer to it. 

Perhaps the panel envisioned our court examining the

thousands of documents5

 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 before 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
6

piece of information was obtained or was not obtained by any

particular Recorder in any particular detainee’s case. 

The original panel opinion offered a different rationale than

the one the Chief Judge now proposes. It was that the detainee’s

counsel would need to see Government Information “to present

an argument that the Recorder 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 information

cannot be used in our judicial review of the Tribunal’s status

determination. And we can also be sure that its assembly and

filing in this court, and potential sharing 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 important to decide the case correctly and that a

correct decision would be of more assistance to the High Court.
7

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

Administrative 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
8

“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 military

function exclusion, the APA does not waive sovereign

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 custody “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 military 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” location 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
9

President, with the approval of Congress, are continuing; those

military actions are part of the war against the al Qaeda terrorist

network; and those actions constitute “war,” not necessarily as

the Constitution uses the word, but as the APA uses it. See

Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000)

(Randolph, 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 congressional 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 “reasonably available” 

adequately defines the scope of the record because that phrase 

comes from the CSRT regulations. 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 available,” 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 exhaustive 

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 

clarify the obligation. Using the phrase “reasonably 

available” provides not a process-based definition, but an 

abstract legal standard. If the Government must populate the 

record based on this standard, it will have to conduct a new 

search for materials that satisfy it. Under 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 process—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.1

 The likely result of relying on a theoretical record 

 

1

 As a corollary, reconvening a CSRT, as the panel proposes, 

Bismullah II, 503 F.3d at 141, will only postpone the issue, because 

the abstract set of Government Information will have no relation to 
2 

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 substantially 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 proceedings. 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 procedures, 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 

acknowledges. 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-ofwar procedures were developed to implement international 

law, Army Reg. 190-8 §§ 1-1(b)(3), 1-6(a) (citing Geneva 

 

that proceeding either. The court will still review whether the 

Recorder for the new panel gathered all reasonably available 

information. Bismullah I, 501 F.3d at 185; Stmt. of Ginsburg, C.J., 

at 5–6. 
3 

Convention Relative to the Treatment of Prisoners of War 

art. 5, Aug. 12, 1949, 6 U.S.T. 3316), it is conceivable that 

they were intentionally modeled on traditional inquisitorial 

procedures. Many aspects 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 

Combatant 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 detainee” is an 

enemy combatant, id. Encl. 1 § E(3), including evidence both 

for and against that determination. Cf. JACQUELINE 

HODGSON, FRENCH CRIMINAL JUSTICE 30 (2005) 

(investigating magistrate must “gather[] evidence which 

might exculpate as well as incriminate the suspect”). Most 

important for this case, a civil-law inquisition prepares a welldefined 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 

information than what the magistrate could have gathered 

because it was available. 

 My point is not to hold out continental criminal 

procedure 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 tribunals. 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 international law. Nevertheless, this court 

could define the record 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. 
4 

I am now convinced we should have begun by discussing the 

problems much more thoroughly en banc. Accordingly, I 

dissent from the denial of rehearing. 
United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided October 3, 2007

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

On Petition for Rehearing

Peter D. Keisler, Acting Attorney General, Paul

Clement, Solicitor General, Gregory G. Katsas, Acting
2

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), No. 06-1197. 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’
3

1

 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 Government 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. 

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.” Slip Op. 4. 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
4

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 Slip Op. 5. The Recorder must collect the

Government Information, examine it, and then decide which

information to pass on to the Tribunal. Slip Op. 5; 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 Slip Op. 6, 12; 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. Slip Op. 10. 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
5

2

 We also held the record on review includes any evidence submitted

to the Tribunal by the detainee or his Personal Representative, Slip

Op. 15, 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.

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

 Slip Op. 13.

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. Slip

Op. 13-15.

 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
6

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. Slip Op. 13-15. 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 (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
7

3

 We express no view as to whether any of the information the

Government is seeking is not “reasonably available.”

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 Slip Op. 5. 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
8

4

 The Government tells us “there is no readily accessible set of

Government 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.

Recorder collected.4 The Government has consequently

determined that it must now search for relevant information

without regard to whether the information is reasonably

available “because [it] can conceive of no other comprehensive

method to ensure that [it] identif[ies] information that the

Recorder could have examined.” The Government explains that

it did not retain all the Government Information because, “[a]t

the time, Recorders had no reason to believe that DoD would be

required to produce (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, including those

under review in the present cases, before the DTA was enacted

in December 2005 and therefore without knowing what the

Congress would later specify concerning the scope and nature of

judicial review. 

Be that as it may, if the Government cannot, within its

resource constraints, produce the Government Information

collected by the Recorder with respect to a particular detainee,

then this court will be unable to confirm that the CSRT’s

determination was reached in compliance with the DoD

Regulations and applicable law. See Slip Op. 13 n.*. The

Government does have an alternative: 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
9

5

 The Government apparently has convened a second or successive

CSRT for a number of detainees. See Mark Denbeaux et al., NoHearing Hearings, CSRT: The Modern Habeas Corpus? An Analysis

of the Proceedings of the Government’s Combatant Status Review

Tribunals 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 convened 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.

convene a new CSRT, it will have to collect only the

Government Information specified by the DoD Regulations –

that is, the relevant information in its possession that is then

reasonably available.

5

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 Government Information.

II. Access by the Petitioner’s Counsel to Classified Government

Information.

The Government also objects to Bismullah I insofar as it

requires the Government to turn over Government Information
10

6

 To the extent the Government now suggests that certain information

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. 

to the petitioners’ counsel. The Government sees two problems

with this: The disclosure of classified Government Information

“could seriously disrupt 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 concern

about disclosure by providing, just as the Government 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 detainee.” Slip Op. 16-17.6

 The

Government’s need to review the Government Information in

order to determine 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

Information will be non-disclosable. Perhaps it is because, as
11

discussed above, the Government has been searching for all

relevant information without regard to whether it is reasonably

available. According to the DoD Regulations, “[c]lassified

information ... which the originating agency declines to

authorize for use in the CSRT process is not reasonably

available.” E-1 § D(2). Consequently, 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

information to be redacted may indeed be as small as the

Government 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 requested 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

Information that may be withheld from the petitioners’ counsel

should not affect to an appreciable degree the burden upon the

Government of producing the Government Information to the

petitioners’ counsel. Regardless of how much ultimately may

be withheld, the Government will have to conduct the same

review of the Government Information in order to make that

determination; so much was inherent in the Government’s

proposed standard for withholding information, which we

adopted. Thus, the real import of the Government’s argument

seems to be that having to review the Government Information

to determine whether it must be disclosed creates a substantial

burden for the Government and therefore, because the

Government obviously cannot indiscriminately turn over all of

the Government Information 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 determination is
12

7

 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.

inconsistent with effective judicial review as required by the

DTA and should be avoided to the extent consistent with

safeguarding classified information. Slip Op. 13, 16-17.7
United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2007 Decided July 20, 2007

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

On Motions

Jeffrey I. Lang argued the cause for petitioners Haji

Bismullah, et al. Sabin Willett argued the cause for petitioners
2

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
3

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.
4

*

 The Secretary of the Navy attached to his memorandum

three “enclosures,” to which we refer below in our citations to the

CSRT procedures as “E-1,” “E-2,” and “E-3.”

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
5

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
6

*

 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

preparation of the Tribunal record.”

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))
7

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 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.

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 January 2006, after the DTA was

enacted, some detainees, including the petitioners, filed in this

court petitions seeking both review of a status determination by
8

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 jurisdiction over habeas petitions filed by or on

behalf of “an alien detained by the United States who has been

determined by the United States to have been properly detained

as an enemy combatant or is awaiting such determination.”

MCA § 7(a), 28 U.S.C. § 2241(e)(1). Meanwhile, 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, 127 S. Ct. 1478, 167 L. Ed. 2d 578, cert. granted, 75

U.S.L.W. 3707 (U.S. June 29, 2007) (No. 06-1195). In that case

we held that, because the common law writ of “habeas 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 petitioners filed

motions to (1) enter the protective order previously 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

evidence as was not presented to the CSRT; and (3) appoint a

special master to hold hearings and make factual findings, as

necessary to address disputes arising from the proposed
9

protective and discovery orders. In his motion to compel

discovery, Bismullah also seeks counsel access to (1) the Record

of Proceedings (classified and unclassified) 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, memoranda and correspondence of the Tribunal members,

Recorder, Personal Representative, or other person who

participated in Bismullah’s CSRT”; and (5) other “reasonably

available documents or information in the possession 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 Petitioners

seek counsel access to (1) the CSRT records (classified and

unclassified) for all seven Parhat Petitioners 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 Government’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 Turkistan Islamic Movement, which the

Government designated 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 Petitioners allege, in
10

apparent anticipation of the Government Evidence, they have no

affiliation.

For its part, the Government moves the court to enter a

substantially revised version of the protective order entered by

the district court (Government’s Proposed 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

Government also proposes the court treat the petition filed by the

seven Parhat Petitioners as seven separate petitions.

II. Analysis

The parties fundamentally disagree about what constitutes

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

Government proposes a substantially different order.

A. The Record

The petitioners argue the court must look beyond the Record

of Proceedings and consider all evidence reasonably available to

the Government, which may include evidence neither the

Recorder nor the detainee’s Personal Representative nor the

detainee put before the CSRT. In addition, they point out that
11

many of the procedures 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 potentially 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 Tribunal 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 enemy combatants. Finally,

the petitioners contend that, even if the court does not review the

Government’s compliance 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 documents which [were] properly
12

part of the administrative record had been withheld.” Thus, the

petitioners contend 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 Proceedings, as

compiled by the Recorder. According to the Government, the

plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 538 (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 Combatant 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 sufficient 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 Representative’s communication to the

detainee is largely scripted, leaving no need to produce “[his]

notes, memoranda and correspondence”; and the actions of the

Recorder, 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.
13

*

 Insofar as the task of gathering Government Information

was performed 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 alleges, a panel reviewing the merits of a CSRT status

determination will be in a position to resolve whether the procedure

followed was “consistent with the standards and procedures specified

by the Secretary of Defense for [a CSRT].” DTA § 1005(e)(2)(C)(i).

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

Tribunal 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 subset of the Government Information presented to the

Tribunal 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 presumption of regularity, as the

Government maintains — but which is not at all clear because a

CSRT does not have the transparent features of the ordinary

administrative 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,* see, e.g., NRDC v. SEC, 606 F.2d 1031, 1049 n.23
14

(D.C. Cir. 1979) (listing methods 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 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.

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 discovery,

without prejudice to renewal, because they have not made a

showing sufficient to justify compelling discovery at this stage

of these proceedings. First, the petitioners do not need discovery

in order to challenge a CSRT’s ruling that a requested witness or

item of evidence was not “reasonably available”; as the

Government points out, that ruling must be made on the record,

which should be sufficient to determine whether the Tribunal

acted in accordance with the specified procedures. Nor does a

detainee petitioner need information regarding 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 “determine 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
15

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 capricious because, to use the petitioners’ example, it is

inconsistent with the status determination of another detainee

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 Representative — supports the

Tribunal’s finding, then the Tribunal’s status determination must

be upheld, provided, of course, the determination was otherwise

made in accordance 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 enter a protective order

resolving the points in contention between the parties in such a

way as to ensure the parties 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 opportunity for the parties to

suggest changes, will be the order proposed by the Government,

as modified to conform to this opinion.

1. Counsel Access to Classified Information
16

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 petitioners’ 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 detainee, highly sensitive information, and information

pertaining to a highly sensitive source. Such highly sensitive

information, which the Government represents will rarely be

found and redacted, would be made available to the court ex

parte and in camera in the event the detainee seeks judicial

review of his status determination.

Petitioners’ counsel, each of whom has a security clearance,

contend they have a “need to know” all information about their

clients’ cases and related cases in order effectively to participate

in the adversarial process of review in court. Petitioners argue

that ex parte and in camera review of highly sensitive classified

information, 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 comply 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 responsibility to

determine whether a preponderance of the evidence 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. Counsel 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 concerning his client, not

just the portions of the Government Information presented to the
17

Tribunal.

That presumption is overcome to the extent the Government

seeks to withhold from counsel highly sensitive information, or

information pertaining to a highly sensitive source or to anyone

other than the detainee but presents such evidence to the court ex

parte and in camera. Therefore, as required in the Status Quo

Order, except for good cause shown, the Government shall

provide 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 deference, “[i]t is within the role of

the executive to acquire and exercise the expertise of protecting

national security. 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 review the classification of national

security information, ‘[w]e anticipate that in camera review of

affidavits, followed if necessary by further judicial inquiry, will

be the norm’”).

The Government also proposes unilaterally to determine

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 “protected” information

“reasonably expected to increase the threat of injury or harm to

any person” and information already designated by the

Government to be “For Official Use Only” or “Law Enforcement

Sensitive.”

It is the court, not the Government, that has discretion to seal

a judicial record, cf. United States v. El-Sayegh, 131 F.3d 158,
18

160 (D.C. Cir. 1997) (“The decision 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 (1978).

Therefore, insofar as a party seeks to file with the court

nonclassified information 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 subjects properly within the scope

of counsel’s representation. The parties do not disagree about

the rules governing 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 composed of

Department of Defense personnel would open an envelope

labeled as legal mail and addressed to a detainee. 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, anything 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 —
19

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 Government’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 country that are not

directly related to counsel’s representation of that

detainee.

Because their counsel have never breached this provision, 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

operations in Iraq, terrorist attacks, Hezbollah’s attack upon

Israel, and the abuse at Abu Ghraib prison. The Government

asserts such information can “incite detainees to violence” or

cause “unrest,” such as a riot, hunger strike, or suicide — as,

indeed, it has done in the past.
20

At the least, the petitioners contend, counsel may

legitimately represent the detainees in efforts to find alternate

ways of ending their detention, including diplomatic means, and

therefore must be able to correspond with the detainees regarding

such alternatives; for example, they might want to correspond

concerning which countries are suitable for seeking asylum.

Using nonlegal 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 observance of law and the administration

of justice,” Swidler & Berlin v. United States, 524 U.S. 399, 403

(1998) (internal quotation marks omitted), applies to the

communications between counsel and the detainees.

Without expressing any view as to whether the attorneyclient 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 Congress. Regrettably, however, we cannot

disagree with the Government that past breaches of the Status

Quo Order by some counsel for detainees justify the

Government’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 limited, 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, however, to limit the content of the

correspondence between petitioners and their counsel to “those
21

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 personnel 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 correspondence 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 intervention 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 Government.” 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

dispute 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
22

on behalf of a detainee. To that end, the Government proposes

to allow a lawyer one visit to Guantánamo to meet with a

potential 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 determination. The Government

asserts the eight-hour limit is needed to prevent an “unwieldy

and unworkable situation,” 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

authorization is “strongly [to be] preferred” because a putative

next friend probably does not satisfy the requirements for

standing. See Whitmore v. Arkansas, 495 U.S. 149, 163, 165

(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 detainee 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

allowed until now under the Status Quo Order.

We conclude the requirement of the Status Quo Order that

a lawyer “provide evidence of ... authority to represent the
23

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

overburden 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 counsel — 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. Harris, Commander of the Joint Task

Force-Guantánamo, the Government determined such a

limitation “is no longer warranted.” Though the Government

asserts its proposed one visit/eight-hour limitation upon meetings

between a lawyer and a potential client is still “warranted and

appropriate in light of the operations” at Guantánamo, it has

made no showing that a lawyer’s additional 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 requiring counsel to produce evidence

both that a detainee authorizes counsel to act on his behalf and

that he authorizes the filing of a petition submitted by a

detainee’s next friend would, in effect, “eliminate next friend

cases” 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
24

behalf”), had codified the historic practice of allowing a “next

friend” to file a petition for habeas corpus on behalf of a

prisoner. 495 U.S. at 162-63. Therefore, when the Congress

later authorized this court to review the status determination 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 petition for review of a CSRT

determination when the detainee is “unable to litigate his own

cause due to mental incapacity, lack of access to court, or other

similar disability.” Whitmore, 495 U.S. at 165. 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 standing can demonstrate the detainee is

under such a disability. 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 factual findings because

we have resolved the pending procedural disputes between the

parties. We therefore deny without prejudice the petitioners’

motion to appoint 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
25

each Parhat Petitioner’s claims, we must review a separate record

of that petitioner’s status determination. Accordingly, each

Parhat Petitioner 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 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.” We grant in part and deny

in part, as explained in this opinion, both the petitioners’ and the

Government’s motions for a protective order; deny without

prejudice the petitioners’ motions for discovery and for the

appointment 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 applied 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

classification 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 3, 20-21. 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 5 U.S.C. § 2241(e)(2); Op. at 21.

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 posture 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, 75 U.S.L.W. 3707 (U.S.

June 29, 2007) (No. 06-1195), add complexities. The attorneyclient 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. Noriega, 752 F. Supp. 1032, 1033 (S.D.

Fla. 1990). Regardless, 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 17; see also id. at 20-21. However, nothing in the opinion

would foreclose restoration of the full attorney-client
2

relationship were the Executive to determine that national

security no longer requires such restrictions 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 Department of

Defense’s CSRT procedures. See Op. at 12-14. 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 procedures specified by the Secretary of

Defense,” Op. at 3. 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 testimony

of “reasonably available” witnesses, he must develop this

rebuttal without knowledge of the classified information that

forms the case against him. He also must do so without the

benefit of counsel. Nonetheless, 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 3

(quoting Memorandum from Gordon England, Secretary of the

Navy, Regarding Implementation of CSRT Procedures for

Enemy Combatants at Guantanamo Bay Naval Base, Cuba, encl.
3

1

 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).

1, § E(3) (hereinafter CSRT Procedures)); cf. Protective Order

§ 2.I. Thus, the initial record is limited by unilateral 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 documents 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 decided 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 initially asserted a curious entitlement to

a “strong presumption of regularity” much as is received by an

administrative 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 12-14.

Then, in a post-argument submission of June 1, 2007, offering

to “assist the Court in understanding the process of developing

the CSRT record,” the Executive acknowledged that it has not

utilized the procedure for compiling the CSRT record that the

Department 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).1

 In particular, “due to the other extensive
4

responsibilities of the Recorder,” McGarrah Decl. ¶ 4, since

September 1, 2004, the Department of Defense has construed its

own requirement that “the Recorder shall obtain and examine

the Government 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 advocate, 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 Executive’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

supported 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 designed as an

adequate replacement for the writ of habeas corpus, see

Supplemental Br. of the Federal Parties Addressing the Detainee

Treatment Act of 2005, at 49-53, Boumediene, 476 F.3d 981

(No. 05-5062). Revelations that evidence is summarized by an

anonymous “research, collection, and coordination team,”

McGarrah Decl. ¶ 4, whose activities have left “some of the[]

electronic files . . . corrupted,” id. ¶ 16, reinforce concerns about

the adequacy of actions under the DTA as a substitute for the

writ of habeas corpus. See Boumediene, 476 F.3d at 1004-07

(Rogers, J., dissenting).