United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2008 Decided June 20, 2008

No. 06-1397

HUZAIFA PARHAT,

PETITIONER

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,

RESPONDENTS

______

On Petition for Review of an Order 

of a Combatant Status Review Tribunal

______

P. Sabin Willett argued the cause for petitioner. With him

on the briefs were Susan Baker Manning, Rheba Rutkowski, Neil

McGaraghan, and Jason S. Pinney.

Gregory G. Katsas, Deputy Associate Attorney General,

U.S. Department of Justice, argued the cause for respondents.

On the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney

General, Jonathan F. Cohn, Deputy Assistant Attorney General,

and Douglas N. Letter, Robert M. Loeb, August E. Flentje,

Pamela M. Stahl, Jennifer A. Paisner, and Catherine Y.

Hancock, Attorneys.

Before: SENTELLE, Chief Judge, and GARLAND and

GRIFFITH, Circuit Judges.
2

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: A Combatant Status Review

Tribunal has decided that petitioner Huzaifa Parhat, a detainee

at the United States Naval Base at Guantanamo Bay, Cuba, is an

“enemy combatant.” This is the first case in which this court has

considered the merits of a petition to review such a decision

under the Detainee Treatment Act of 2005. The Act grants this

court jurisdiction to “determine the validity of any final decision

of a Combatant Status Review Tribunal that an alien is properly

detained as an enemy combatant.” We conclude that the

Tribunal’s decision in Parhat’s case was not valid.

Parhat is an ethnic Uighur, who fled his home in the

People’s Republic of China in opposition to the policies of the

Chinese government. It is undisputed that he is not a member of

al Qaida or the Taliban, and that he has never participated in any

hostile action against the United States or its allies. The

Tribunal’s determination that Parhat is an enemy combatant is

based on its finding that he is “affiliated” with a Uighur

independence group, and the further finding that the group was

“associated” with al Qaida and the Taliban. The Tribunal’s

findings regarding the Uighur group rest, in key respects, on

statements in classified State and Defense Department

documents that provide no information regarding the sources of

the reporting upon which the statements are based, and

otherwise lack sufficient indicia of the statements’ reliability.

Parhat contends, with support of his own, that the Chinese

government is the source of several of the key statements.

Parhat’s principal argument on this appeal is that the record

before his Combatant Status Review Tribunal is insufficient to

support the conclusion that he is an enemy combatant, even

under the Defense Department’s own definition of that term.

We agree. To survive review under the Detainee Treatment Act,
3

a Tribunal’s determination of a detainee’s status must be based

on evidence that both the Tribunal and the court can assess for

reliability. Because the evidence the government submitted to

Parhat’s Tribunal did not permit the Tribunal to make the

necessary assessment, and because the record on review does

not permit this court to do so, we cannot find that the

government’s designation of Parhat as an enemy combatant is

supported by a “preponderance of the evidence” and “was

consistent with the standards and procedures” established by the

Secretary of Defense, as required by the Act. 

To affirm the Tribunal’s determination under such

circumstances would be to place a judicial imprimatur on an act

of essentially unreviewable executive discretion. That is not

what Congress directed us to do when it authorized judicial

review of enemy combatant determinations under the Act.

Accordingly, we direct the government to release Parhat, to

transfer him, or to expeditiously convene a new Combatant

Status Review Tribunal to consider evidence submitted in a

manner consistent with this opinion. As discussed in Part V,

this disposition is without prejudice to Parhat’s right to seek

release immediately through a writ of habeas corpus in the

district court, pursuant to the Supreme Court’s recent decision

in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S.

June 12, 2008).

We also deny, without prejudice, the government’s motion

to protect from public disclosure all nonclassified record

information that it has labeled “law enforcement sensitive,” as

well as the names and “identifying information” of all U.S.

government personnel mentioned in the record. Although we do

not doubt that there is information in these categories that

warrants protection, the government has proffered only a generic

explanation of the need for protection, providing no rationale

specific to the information actually at issue in this case. 
4

By resting its motion on generic claims, equally applicable

to all of the more than one hundred other detainee cases now

pending in this court, the government effectively “proposes

unilaterally to determine whether information is ‘protected.’”

Bismullah v. Gates, 501 F.3d 178, 188 (D.C. Cir. 2007).

Without an explanation geared to the information at issue in this

case, we are left with no way to determine whether that specific

information warrants protection -- other than to accept the

government’s own designation. But as we held in Bismullah,

“[i]t is the court, not the Government, that has discretion to seal

a judicial record, which the public ordinarily has the right to

inspect and copy.” Id. (internal citations omitted). We therefore

deny the government’s motion and direct it to file a renewed

motion, accompanied by a copy of the record identifying the

specific information it seeks to designate and pleadings

explaining why protecting that specific information is required.

I

Parhat is a Chinese citizen of Uighur heritage. Combatant

Status Review Tribunal (CSRT) Decision Report, encl. 2, at 1

(Dec. 6, 2004) (App. 14) (CSRT Decision). The Uighurs are

from the far-western Chinese province of Xinjiang, which the

Uighurs call East Turkistan. Id. According to Parhat, he fled

China in May 2001 because of “oppression and torture imposed

on [Ui]gh[u]r people by the Chinese Government.” CSRT

Exhibit R7, at 1 (App. 51) (FBI interview report dated May 11,

2002). “This oppression,” he said, “included harassment, forced

abortions for more than two children, high taxes, the taking

away of land, and the banishing of educated people to remote

areas.” Id. Parhat arrived at a Uighur camp in Afghanistan in

June 2001. CSRT Decision, encl. 2, at 1 (App. 14).

On September 11, 2001, members of al Qaida attacked the

World Trade Center and the Pentagon with hijacked commercial
5

1

The following paragraph is redacted from the publicly released

copy of this opinion because it contains classified information. That

is the explanation for all of the other redactions as well. Counsel for

both Parhat and the government have full access to the unredacted

opinion.

airplanes, killing almost three thousand people. Seven days

later, Congress authorized the President to “use all necessary

and appropriate force against those nations, organizations, or

persons he determines planned, authorized, committed, or aided

the terrorist attacks that occurred on September 11, 2001, or

harbored such organizations or persons, in order to prevent any

future acts of international terrorism against the United States by

such nations, organizations or persons.” Authorization To Use

Military Force (AUMF), Pub. L. 107-40, § 2(a), 115 Stat. 224,

224 (2001) (reprinted at 50 U.S.C. § 1541 note). Pursuant to the

AUMF, the President ordered the United States Armed Forces

to invade Afghanistan, where the Taliban (which then governed

the country) had been supporting and harboring al Qaida. 

In mid-October 2001, U.S. aerial strikes destroyed the camp

where Parhat had been living. Thereafter, according to his

undisputed testimony, Parhat and seventeen other unarmed

Uighurs fled the camp, eventually crossing into Pakistan. Local

villagers took the Uighurs in, gave them food and shelter, and

then -- in approximately December 2001 -- handed them over to

Pakistani officials who turned them over to the U.S. military. In

June 2002, the United States transferred Parhat to the U.S. Naval

Base at Guantanamo Bay, Cuba, where he remains imprisoned.

In 2003, a military officer of the Criminal Investigation

Task Force (CITF), U.S. Department of Defense (DOD), who

was charged with reviewing Parhat’s case, “‘recommend[ed] the

release of Parhat under a conditional release agreement.’” Pet’r

Br. 6 (quoting CSRT Decision, encl. 2, at 2 (App. 15)).1
6

[Classified material redacted.]

On July 7, 2004, in a memorandum to the Secretary of the

Navy, the Deputy Secretary of Defense issued an order

establishing Combatant Status Review Tribunals (CSRTs).

Order Establishing Combatant Status Review Tribunal (July 7,

2004) (DOD Order). Three weeks later, the Secretary of the

Navy, whom the DOD Order had designated “to operate and

oversee th[e] [CSRT] process,” issued a memorandum that

established the standards and procedures for those Tribunals.

Implementation of Combatant Status Review Tribunal

Procedures at 2 (July 29, 2004) (Navy Memorandum). The

Navy Memorandum describes the Tribunals as “non-adversarial

proceeding[s] to determine whether each detainee” at

Guantanamo “meets the criteria to be designated as an enemy

combatant.” Id. at E-1 § B. The Order and Memorandum both

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. This includes any person who has committed

a belligerent act or has directly supported hostilities in

aid of enemy armed forces.

Id.; DOD Order at 1.

A CSRT was held for Parhat on December 6, 2004. The

proceedings consisted of an unclassified session, at which Parhat

was present and answered questions under oath, followed by a

classified session, at which Parhat was not present and in which

the Tribunal considered classified documents not made available

to him. The only evidence regarding the circumstances of

Parhat’s background and capture was his own interviews and
7

testimony. Parhat denied association with al Qaida or the

Taliban, stated that he had gone to Afghanistan solely to join the

resistance against China, and said that he regarded China alone

-- and not the United States -- as his enemy. See CSRT

Decision, encl. 3, at 3-4, 6-7 (App. 21-22, 24-25). The Tribunal

did not find to the contrary. See id. encl. 2, at 1-4 (App. 14-17).

Nonetheless, the Tribunal determined that Parhat was an

enemy combatant. It did so on the theory that he was

“affiliated” with a Uighur independence group known as the

East Turkistan Islamic Movement (ETIM), that ETIM was

“associated” with al Qaida and the Taliban, and that ETIM is

engaged in hostilities against the United States and its coalition

partners. See id. encl. 1, at 1 (App. 11). The basis for the charge

of Parhat’s “affiliation” with ETIM was that the Uighur camp at

which he lived and received training on a rifle and pistol was run

by an ETIM leader. See id. encl. 2, at 1 (App. 14); id. encl. 3, at

6 (App. 24). The Tribunal acknowledged, however, that “no

source document evidence was introduced to indicate . . . that

the Detainee had actually joined ETIM, or that he himself had

personally committed any hostile acts against the United States

or its coalition partners.” Id. encl. 2, at 3 (App. 16). The

grounds for the charges that ETIM was “associated” with al

Qaida and the Taliban, and that it is engaged in hostilities

against the United States or its coalition partners, were

statements in classified documents that do not state (or, in most

instances, even describe) the sources or rationales for those

statements. Parhat denied knowing anything about an al Qaida

or Taliban association with Uighur camps. See id. encl. 3, at 4,

6-7 (App. 22, 24-25). 

Notwithstanding its determination that Parhat was an enemy

combatant, the Tribunal stated that “this Detainee does present

an attractive candidate for release.” Id. encl. 2, at 2 (App. 15).

It “urge[d] favorable consideration for release . . . and also
8

urge[d] that he not be forcibly returned to the People’s Republic

of China” because he “will almost certainly be treated harshly

if he is returned to Chinese custody.” Id. at 4 (App. 17). The

Defense Department did not release him.

In July 2005, Parhat filed a petition for a writ of habeas

corpus in the United States District Court for the District of

Columbia. The district court concluded that its jurisdiction was

unclear and stayed Parhat’s case pending this circuit’s resolution

of appeals by other Guantanamo detainees, including the case of

Boumediene v. Bush. See Kiyemba v. Bush, No. 05-1509, Mem.

Order at 1-2 (D.D.C. Sept. 13, 2005). 

In December 2005, while Boumediene was pending,

Congress passed the Detainee Treatment Act of 2005 (DTA),

Pub. L. No. 109-148, 119 Stat. 2680 (2005) (reprinted at 10

U.S.C. § 801 note). The DTA granted this court “exclusive

jurisdiction to determine the validity of any final decision of a

Combatant Status Review Tribunal that an alien is properly

detained as an enemy combatant.” DTA § 1005(e)(2)(A). But

it also provided that no court “shall have jurisdiction to . . .

consider . . . an application for a writ of habeas corpus filed by

or on behalf of an alien detained by the Department of Defense

at Guantanamo Bay, Cuba.” Id. § 1005(e)(1) (amending 28

U.S.C. § 2241). In Hamdan v. Rumsfeld, the Supreme Court

held, inter alia, that the DTA’s bar against habeas claims did not

apply to claims already pending on the date of its enactment.

126 S. Ct. 2749, 2769 (2006). Congress responded in October

2006 with the Military Commissions Act of 2006 (MCA), Pub.

L. No. 109-366, 120 Stat. 2600 (2006) (codified in part at 28

U.S.C. § 2241 & note), which restated the habeas bar, providing

that no court shall have jurisdiction to consider the habeas

application 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
9

determination.” MCA § 7(a) (again amending 28 U.S.C. §

2241). The MCA further declared that the habeas bar applies

“to all cases, without exception, pending on or after the date of

the enactment of [the MCA] which relate to any aspect of the

detention . . . of an alien detained by the United States since

September 11, 2001.” Id. § 7(b).

In December 2006, Parhat filed a petition in this court for

relief under the DTA, and, in the alternative, for a writ of habeas

corpus. While Parhat’s petitions were pending, another panel of

the court decided Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.

2007). In that decision, the panel held that the MCA bars

judicial consideration of detainees’ pending habeas petitions and

that the bar is not an unconstitutional suspension of the writ. Id.

at 994. Judge Rogers dissented, concluding that the detainees

have a constitutional right to habeas and that the DTA is an

inadequate substitute. See id. at 995 (Rogers, J., dissenting).

The Supreme Court granted certiorari, 127 S. Ct. 3078 (2007),

and heard argument on December 5, 2007. On June 12, 2008,

the Court reversed the panel, holding that the detainees “have

the constitutional privilege of habeas corpus,” that the DTA’s

procedures for review of their status “are not an adequate and

effective substitute for habeas corpus,” and that the MCA

“operates as an unconstitutional suspension of the writ.”

Boumediene v. Bush, No. 06-1195, slip op. at 1-2 (U.S. June 12,

2008). 

Meanwhile, the DTA petitions of numerous Guantanamo

detainees proceeded in this circuit. In Bismullah v. Gates,

decided on July 20, 2007, the court addressed a number of

procedural issues common to a group of eight DTA petitioners,

including Parhat. See 501 F.3d 178 (D.C. Cir. 2007). The

central issue was whether the record on review in this court is

limited -- as the government argued -- to the evidence actually

presented to the CSRT, or whether it includes all of the
10

“Government Information.” Id. at 180. The latter, as defined in

the Navy Memorandum, consists of 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.” Navy Memorandum at E-1

§ E(3); see 501 F.3d at 180. 

Bismullah held that the record on review in this court is all

of the Government Information. 501 F.3d at 180. On

September 7, 2007, the government sought rehearing and

rehearing en banc. The panel denied rehearing on October 3,

2007, see 503 F.3d 137, and the full court denied rehearing en

banc on February 1, 2008, see 514 F.3d 1291. The government

then filed a petition for certiorari in the Supreme Court and

sought a stay from the Bismullah panel pending the Supreme

Court’s determination. The panel granted the motion in part and

stayed, pending disposition by the Supreme Court, the

government’s obligation in the eight cases to produce additional

record material beyond that presented to the CSRTs. See

Bismullah v. Gates, No. 06-1197, Order at 3-4 (D.C. Cir. Feb.

13, 2008). The government’s petition for certiorari is currently

pending.

On October 29, 2007, while its request for en banc review

in Bismullah was still under consideration, the government

produced to Parhat’s counsel the record (both classified and

unclassified) of what was actually presented to Parhat’s CSRT.

On November 1, Parhat filed a motion asking this court to

review the CSRT’s determination based solely upon that record.

While reserving his right to future review based on all of the

Government Information, to which he is entitled under

Bismullah, Parhat contended that the materials before the CSRT

are sufficient to establish as a matter of law that he is not an

enemy combatant. Further delay while the government sought

certiorari regarding his entitlement to a broader record, he
11

argued, would be unnecessary and unjust. The government did

not oppose Parhat’s request.

On December 14, 2007, we set the case for briefing, and on

April 4, 2008 we heard argument, solely on the record before the

CSRT. See Parhat v. Gates, No. 06-1397, Order at 2 (D.C. Cir.

Dec. 14, 2007). That is the case that is presently before us.

Also before us is the government’s motion to designate as

“protected information” certain unclassified information in the

CSRT record that it has produced to counsel and the court.

II

The DTA grants this court jurisdiction to “determine the

validity of any final decision of a Combatant Status Review

Tribunal that an alien is properly detained as an enemy

combatant.” DTA § 1005(e)(2)(A). The scope of our review is

“limited to the consideration of”:

(i) whether the status determination of the [CSRT] was

consistent with the standards and procedures specified

by the Secretary of Defense for [CSRTs] (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.

Id. § 1005(e)(2)(C); see Boumediene, slip op. at 47-49 (noting

the limited nature of the DTA’s jurisdictional grant to this
12

court). The DOD “standards and procedures” referenced in

DTA § 1005(e)(2)(C)(i) and (ii) are set out in the DOD Order

and Navy Memorandum discussed in Part I above. The

Bismullah opinion describes those standards and procedures in

detail. See 501 F.3d at 181-82; see also Boumediene, slip op. at

37 (describing the limited nature of “the procedural protections

afforded to the detainees in the CSRT hearings”). Here, we

describe only those that are relevant to our disposition.

Each CSRT is composed of “three neutral commissioned

officers.” Navy Memorandum at E-1 § C(1). The Recorder,

also a commissioned officer, is charged with gathering the

“Government Information,” which is defined as “reasonably

available information in the possession of the U.S. Government

bearing on the issue of whether the detainee” meets the enemy

combatant criteria. Id. at E-1 § E(3); see id. at E-2 § C(1). The

Recorder must present to the Tribunal both 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,” and any evidence in the

Government Information that is exculpatory, described as

“evidence to suggest that the detainee should not be designated

as an enemy combatant.” Id. at E-1 § H(4). 

The Recorder must also make the Government Information

available to the detainee’s assigned Personal Representative, a

military officer who is “neither a lawyer [n]or an advocate,” but

who must explain the CSRT process to the detainee and may

assist the detainee in preparing for it. Id. at E-1 § F(5); id. at E-2

§ C(4); id. at E-3 §§ A, D. The Personal Representative may

view the classified evidence but may not share it with the

detainee. See id. at E-1 § F(8); id. at E-3 § C(4). The detainee’s

discussions with the Personal Representative are neither

privileged nor confidential. Id. at E-3 §§ C(1), D. The detainee

may testify or introduce relevant documentary evidence at the
13

hearing, and may present the testimony of any witness who is

“reasonably available and whose testimony is considered by the

Tribunal to be relevant.” Id. at E-1 § F(6); see Boumediene, slip

op. at 38 (noting, in connection with this provision, that the

detainee’s “ability to rebut the Government’s evidence against

him is limited by the circumstances of his confinement and his

lack of counsel at this stage”).

The CSRT must “determine whether the preponderance of

the evidence supports the conclusion that [the] detainee meets

the criteria to be designated as an enemy combatant.” Navy

Memorandum at E-1 § G(11). There is a rebuttable presumption

that the Government Evidence is “genuine and accurate.” Id.

The Tribunal “may consider hearsay evidence, taking into

account the reliability of such evidence in the circumstances.”

Id. at E-1 § G(7). 

An important DOD “standard” for our purposes is the

definition of “enemy combatant.” As noted above, the DOD

Order and the Navy Memorandum both 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. This includes any person who has committed

a belligerent act or has directly supported hostilities in

aid of enemy armed forces.

DOD Order at 1; Navy Memorandum at E-1 § B.

Parhat contends that the record before his CSRT does not

support its finding that he is an enemy combatant, even under

the government’s own definition, and hence that the Tribunal’s

determination is not “consistent with the standards and
14

procedures specified by the Secretary of Defense for Combatant

Status Review Tribunals.” DTA § 1005(e)(2)(C)(i). In the

alternative, he argues that the government’s definition is

“inconsistent with the Constitution and laws of the United

States,” id. § 1005(e)(2)(C)(ii), because it exceeds the

authorization that Congress gave the President in the AUMF.

Although he makes a number of arguments in this regard,

Parhat’s principal contention is that, by defining “enemy

combatant” as including an individual who was merely “part of

or supporting” forces “associated” with the Taliban or al Qaida,

the government exceeded the AUMF’s authorization to use force

“against those nations, organizations, or persons” that the

President determines “planned, authorized, committed, or aided

the terrorist attacks that occurred on September 11, 2001,” or

that “harbored such organizations or persons.” AUMF § 2(a).

The government responds that the evidence before Parhat’s

CSRT does support his designation as an enemy combatant

under the DOD definition. It further maintains, based on a

theory of organizational equivalence, that this definition is

consistent with the AUMF. In the AUMF, the government

argues, Congress authorized force not only against the Taliban

and al Qaida, but also against any person or entity that is

effectively part of the same organization. See Unclassified Oral

Arg. Tr. 23-24. Moreover, even if the DOD definition is not

authorized by the AUMF, the government maintains that it is

nonetheless within the President’s constitutional authority as

Commander in Chief.

While disputing the government’s statutory and

constitutional arguments, Parhat emphasizes that we need not

reach them if we determine that the evidence that was before his

CSRT is insufficient to support his status as an enemy

combatant under the government’s own definition. Nor does the

government argue that Parhat’s status as an enemy combatant
15

can be maintained if the evidence does not support the

government’s own regulatory definition. To the contrary, the

government recognizes that the DTA authorizes us to determine

“whether the [CSRT’s determination] was consistent with the

standards and procedures specified by the Secretary of Defense.”

DTA § 1005(e)(2)(C)(i). Accordingly, because we conclude

below that the evidence that was before the CSRT is insufficient

to categorize Parhat as an enemy combatant under DOD’s

definition, we do not reach the other issues disputed by the

parties.

III

In this Part, we describe the evidence relevant to the

CSRT’s determination that Parhat is an enemy combatant and

identify deficiencies in that evidence. In Part IV, we explain

why the record evidence is insufficient to support the Tribunal’s

determination under the DTA. 

At his CSRT, Parhat repeatedly stated that his only enemy,

and the only enemy of his fellow Uighurs, is the government of

China. He testified that the Uighurs

have never been against the United States and we do

not want to be against the United States. . . . The reason

we went into Pakistan was because in China there is

torture and too much pressure on the Uighur people. .

. . The Uighur people only have the privilege of having

two children. If a female gets pregnant with a third

child, the government will forcibly take the kid through

abortion.
16

2

 [Classified material redacted.]

CSRT Decision, encl. 3, at 3 (App. 21).2 Neither the CSRT nor

this court, of course, has any authority to determine whether

Parhat truly is an enemy of China. As the CSRT recognized,

“[t]he People’s Republic of China is not a coalition partner for

enemy combatant classification purposes.” Id. encl. 2, at 3

(App. 16).

 Parhat also denied any association with al Qaida or the

Taliban, see id. encl. 3, at 4-7 (App. 22-25), and the CSRT did

not find him to be “an individual who was part of or supporting

Taliban or al Qaida forces,” Navy Memorandum at E-1 § B.

Nor did it find that he “committed a belligerent act or has

directly supported hostilities in aid of enemy armed forces.” Id.

To the contrary, it expressly found that he did not engage in

hostilities against the United States or the Northern Alliance (an

Afghani coalition partner of the United States), CSRT Decision,

encl. 2, at 2 (App. 15), and declared that there was “no source

document evidence . . . that the Detainee . . . himself had

personally committed any hostile acts against the United States

or its coalition partners,” id. at 3 (App. 16). 

The Tribunal nonetheless determined that Parhat was an

enemy combatant. It did so on the basis of the following

finding: that Parhat “is affiliated with forces associated with al

Qaida and the Taliban (i.e., ‘the East Turkistan Islamic

Movement,’) that are engaged in hostilities against the United

States and its coalition partners.” Id. encl. 1, at 1 (App. 11).

The parties agree that, for a detainee who is not a member

of al Qaida or the Taliban, DOD’s definition establishes three

elements that the government must prove by a preponderance of

the evidence to designate an individual as an enemy combatant:
17

3

[Classified material redacted.]

(1) the petitioner was part of or supporting “forces”; (2) those

forces were associated with al Qaida or the Taliban; and (3)

those forces are engaged in hostilities against the United States

or its coalition partners. In Parhat’s case, this means that the

government must show that: (1) Parhat was part of or

supporting ETIM; (2) ETIM was associated with al Qaida or the

Taliban; and (3) ETIM is engaged in hostilities against the

United States or its coalition partners. Accord Pet’r Br. 21-22;

Resp’t Br. 10-11, 18-19; Pet’r Reply Br. 14-15; Unclassified

Oral Arg. Tr. 21.

A

The first element of the DOD definition of enemy

combatant requires proof that Parhat was “part of or supporting”

ETIM. Neither Parhat nor any other detainee stated that Parhat

was a member of ETIM. And as the CSRT noted, “no source

document evidence was introduced to indicate . . . that the

Detainee had actually joined ETIM.” CSRT Decision, encl. 2,

at 3 (App. 16).

To support the contention that Parhat was “part of or

supporting” ETIM, the government relies on evidence that

comes almost entirely from Parhat’s own statements and those

of other Uighur detainees. Parhat stated that, when he decided

to leave China, he headed for a Uighur camp, widely known in

Xinjiang province, that was located in the Tora Bora mountains

of Afghanistan. See CSRT Exhibit R7, at 1-2 (App. 51-52) (FBI

interview report dated May 11, 2002). At the camp, he received

training on a Kalashnikov rifle and a pistol, which “consisted of

weapon disassembly and cleaning,” Pet’r Br. 18 n.22 (quoting

CSRT Exhibit R3, at 2 (App. 37))3

; performed guard duty, see
18

CSRT Exhibit R7, at 2 (App. 52); and helped to build a house,

see CSRT Decision, encl. 3, at 6 (App. 24). He sought the

training, he said, only to fight the Chinese government. Id. encl.

1, at 2 (App. 12); id. encl. 3, at 3-4 (App. 21-22).

Parhat testified that a man named Hassan Maksum, whom

the government has identified as a leader of ETIM, was a leader

at the camp. See id. encl. 3, at 6 (App. 24). Parhat maintains

that the fact that Maksum was a leader of the camp is not enough

to make it an “ETIM camp,” and that the kind of activities in

which Parhat participated at the camp are not enough to

establish that he was “part of or supporting” ETIM. The

government argues to the contrary. We need not decide those

questions. As we discuss below, the evidence on the second and

third elements of DOD’s definition of enemy combatant, unlike

the evidence on the first, does not disclose from whence it came.

It is therefore insufficient to support the Tribunal’s

determination because it does not permit the Tribunal or this

court to assess its reliability.

B

The second element of DOD’s definition requires proof that

ETIM was “associated” with al Qaida or the Taliban. The Navy

Memorandum does not define “associated.” Parhat contends

that the term is inconsistent with the AUMF, which authorizes

the President to use force only against “those nations,

organizations, or persons he determines planned, authorized,

committed, or aided the terrorist attacks that occurred on

September 11, 2001, or harbored such organizations or persons.”

AUMF § 2(a) (emphasis added). And he stresses that there is no

allegation that ETIM itself had anything to do with the

September 11 attacks or that it harbored any organization that

did. 
19

4

See Unclassified Oral Arg. Tr. 24 (“Judge Sentelle: So you are

dependent on the proposition that ETIM is properly defined as being

part of al Qaida, not that it aided or abetted, or aided or harbored al

Qaida, but that it’s part of [?] Mr. Katsas: Correct. . . . in order to fit

them in the AUMF.”). 

5

We have recognized in a related context that two organizations

with different names may nonetheless be the same organization,

simply operating under aliases. See National Council of Resistance of

Iran v. Department of State, 251 F.3d 192, 199-200 (D.C. Cir. 2001)

(affirming the authority of the Secretary of State to designate the

NCRI as a foreign terrorist organization where the Secretary found

“that the PMOI is a foreign organization engaging in terrorist activities

. . . and that the NCRI and the PMOI are one and the same”).

The government maintains that an entity that, subsequent to

September 11, becomes so closely associated with al Qaida or

the Taliban that it is effectively “part of the same organization,”

Unclassified Oral Arg Tr. 23, is covered by the AUMF because

it thereby becomes the same “organization[]” that perpetrated

the September 11 attacks, AUMF § 2(a). This argument

suggests that, even under the government’s own definition, the

evidence must establish a connection between ETIM and al

Qaida or the Taliban that is considerably closer than the

relationship suggested by the usual meaning of the word

“associated.”4

 We need not decide the precise meaning of the

term,5

 however, as there is a more fundamental problem with the

evidence employed by the government to prove this element.

That problem is discussed below and in Part IV.

The principal evidence supporting this element comes from

four U.S. government intelligence documents, one from the

Department of State and three from components of the

Department of Defense. The following paragraphs describe the

four documents. Because the documents are almost entirely
20

6

Parhat also testified that he did not “believe Osama bin Laden or

the Taliban were financially providing for the camp,” CSRT Decision,

encl. 3, at 2 (App. 20), that he saw “only Uighur people” at the camp,

id. at 6 (App. 24), and that “[t]he people in Turkistan will not associate

with al Qaida,” id. at 7 (App. 25).

7

We note that Basit testified at his own CSRT that he had “no

idea” who provided the camp. That testimony is available on DOD’s

classified, our description is redacted from the public version of

this opinion.

[Classified material redacted.]

Finally, the government relies on the interview report of a

single Uighur detainee, Akhdar Basit, which states that Basit

told the interviewer that a leader at the camp told him that the

camp “had been provided to the Uigh[u]rs by the Taliban in

order that the Uigh[u]rs could train to fight the Chinese

oppression.” See CSRT Exhibit R4, at 2 (App. 40) (FBI

interview report dated December 9, 2002). Parhat’s own

statement was that the camp was given to the Uighurs by the

“Afghani Government.” CSRT Exhibit R6, at 1-2 (App. 49-50)

(FBI interview report dated July 19, 2003).6 Of course, the

Taliban was the “Afghani Government” in 2001, and not all

entities provided with housing by that government -- which no

doubt ranged from orphanages to terrorist organizations like al

Qaida -- were “associated” with the Taliban in a sense that

would make them enemy combatants. 

In any event, the government’s reliance on Basit’s interview

report is problematic because the CSRT was not provided with

exculpatory evidence on the same point. Although the report

states that Basit said he had been told that the camp was

provided to the Uighurs by the Taliban,7

 Parhat’s appellate
21

website, see www.dod.mil/pubs/foi/detainees/csrt/Set_16_1363-

1446.pdf (last accessed June 9, 2008), but it was not presented to

Parhat’s CSRT. Because the website does not disclose whether

Basit’s testimony pre- or post-dated Parhat’s CSRT, it is unclear

whether we may consider it on this review. See Boumediene, slip op.

at 60-61 (holding that “the DTA review proceeding falls short of being

a constitutionally adequate substitute” for habeas because the detainee

has “no opportunity to present evidence discovered after the CSRT

proceedings concluded”).

counsel has called our attention to evidence from another

Uighur’s CSRT to the effect that the Uighur camp was actually

in existence prior to the Taliban takeover of Afghanistan. See

Pet’r Br. 4; Affidavit of Susan Baker Manning (App. 192-93)

(quoting a Tribunal member’s statement in the November 30,

2004 CSRT of detainee Abdul Semet, that [classified material

redacted]). This evidence was not presented to Parhat’s CSRT.

As noted in Part II, the Navy Memorandum requires the

CSRT Recorder to present to the Tribunal any “evidence to

suggest that the detainee should not be designated as an enemy

combatant.” Navy Memorandum at E-1 § H(4). This obligation

certainly includes testimony given by other detainees in the

course of other CSRT proceedings prior to the commencement

of the detainee’s own. See id. at E-2 §§ B(1), C(1);

Boumediene, slip op. at 60-61 (noting that, under the DTA, the

detainee has “no opportunity to present evidence discovered

after the CSRT proceedings concluded” (emphasis added)). If,

in order to support the proposition that ETIM is associated with

the Taliban (a necessary element of the government’s definition

of “enemy combatant”), the government is going to rely on the

statement in Basit’s interview report that the camp he stayed in

was provided by the Taliban, then it must also give the Tribunal
22

8

We also note that the government ultimately determined that

Basit was not an enemy combatant and released him from

Guantanamo, notwithstanding that -- like Parhat -- he acknowledged

that he took weapons training at the camp. See Notice by United

States of Transfer of Petitioners, Mamet v. Bush, No. 05-1886 (D.D.C.

May 5, 2006) (advising the district court that the government had

released from Guantanamo and transferred to Albania for release

certain Uighur detainees, including Basit, who were “no longer

classified as enemy combatants”).

9

The government contends that examination of statements from

other detainees’ CSRTs is contrary to the holding in Bismullah that the

DTA “does not authorize this court to determine whether a status

determination is arbitrary and capricious because . . . it is inconsistent

with the status determination of another detainee who was detained

under similar circumstances.” 501 F.3d at 186. We have not,

however, examined those statements to determine whether the

different CSRTs acted inconsistently, but rather to determine whether

the government honored its obligation to present Parhat’s CSRT with

exculpatory evidence -- as required by the “procedures specified by

the Secretary of Defense.” DTA § 1005(e)(2)(C)(i). 

an opportunity to consider contrary evidence.8 Because the

Tribunal was not afforded that opportunity, we cannot conclude

that reliance on the interview report “was consistent with the

standards and procedures specified by the Secretary of Defense.”

DTA § 1005(e)(2)(C)(i).9 We express no opinion as to whether

the Recorder’s failure to present exculpatory evidence to the

CSRT serves as an independent ground for invalidating the

Tribunal’s entire determination.

C

Proving the third element of DOD’s definition of enemy

combatant requires evidence that ETIM engaged in hostilities

against the United States or its coalition partners. As with the
23

10[Classified material redacted.] 

second element, the principal evidence supporting this element

comes from the four government intelligence documents

described above. Because the documents are classified, much

of the following discussion is redacted from the public version

of this opinion. As we have previously noted, there is no

allegation or evidence that Parhat personally engaged in any

such hostilities. See CSRT Decision, encl. 2, at 2-3 (App. 15-

16); [classified material redacted].

 [Classified material redacted.]

In its brief, the government seeks further support in two

unclassified lists that designate ETIM as a terrorist organization,

one established by the Department of State and the other by a

United Nations Security Council committee. Neither list

discloses the grounds upon which the designation was made.10

In any event, because neither list was submitted to Parhat’s

CSRT, neither can be relied upon to support its determination

here.

IV

As Part III indicates, the principal evidence against Parhat

regarding the second and third elements of DOD’s definition of

enemy combatant consists of four government intelligence

documents. The documents make assertions -- often in haec

verba -- about activities undertaken by ETIM, and about that

organization’s relationship to al Qaida and the Taliban. The

documents repeatedly describe those activities and relationships

as having “reportedly” occurred, as being “said to” or “reported

to” have happened, and as things that “may” be true or are

“suspected of” having taken place. But in virtually every
24

11The only exception is the reference in three of the documents,

which is repeated in almost identical language in each, to a statement

by an unnamed Uighur detainee at Guantanamo: [Classified material

redacted.] The government did not provide the CSRT (or the court)

with the interview report of that detainee, notwithstanding that it did

provide the report of another detainee upon which it relied for a

different point. See CSRT Exhibit R4 (App. 46) (FBI interview report

of Akhdar Qasem Basit). Thus, the CSRT had no opportunity to

assess how the unnamed detainee obtained this information, or to see

how the government interviewer assessed the detainee’s reliability,

[classified material redacted], or otherwise to do so on its own.

12As we noted in Part III, several statements in the intelligence

documents also appear to be inconsistent with the government’s theory

that ETIM and al Qaida or the Taliban are the same “organization” for

purposes of the AUMF.

instance, the documents do not say who “reported” or “said” or

“suspected” those things.11 Nor do they provide any of the

underlying reporting upon which the documents’ bottom-line

assertions are founded, nor any assessment of the reliability of

that reporting. Because of those omissions, the Tribunal could

not and this court cannot assess the reliability of the assertions

in the documents. And because of this deficiency, those bare

assertions cannot sustain the determination that Parhat is an

enemy combatant.12

The CSRT’s obligation to assess the reliability of evidence

is expressly stated in the Navy Memorandum’s provision on

“Admissibility of Evidence.” This provision states that the

Tribunal may consider hearsay evidence -- which the

intelligence reports plainly are -- but in so doing it must “tak[e]

into account the reliability of such evidence in the

circumstances.” Navy Memorandum at E-1 § G(7). That

obligation, and the concomitant requirement that reliability be

assessable, are also inherent in the Memorandum’s direction --
25

13See Singletary v. Reilly, 452 F.3d 868, 873 (D.C. Cir. 2006)

(holding that hearsay presented at a parole board hearing “was not

demonstrated to be reliable and that the Board’s decision to revoke

[the appellant’s] parole was therefore totally lacking in evidentiary

support” (internal quotation marks and citation omitted)). 

adopted by Congress in the DTA -- that the CSRT must decide

whether “a preponderance of the evidence” supports the

determination that the detainee is an enemy combatant. Id. at E1 § G(11); see DTA § 1005(e)(2)(C)(i). As the Supreme Court

explained in Concrete Pipe, in the course of discussing the

nature of “the burden of showing something by a

‘preponderance of the evidence’”: “Before any such burden can

be satisfied in the first instance, the factfinder must evaluate the

raw evidence, finding it to be sufficiently reliable and

sufficiently probative to demonstrate the truth of the asserted

proposition with the requisite degree of certainty.” Concrete

Pipe & Prods., Inc. v. Construction Laborers Pension Trust, 508

U.S. 602, 622 (1993).13 Both the obligation and the requirement

likewise flow from the Memorandum’s establishment of a

“rebuttable presumption that the Government Evidence is

‘genuine and accurate.’” Navy Memorandum at E-1 § G(11)

(emphasis added). If a Tribunal cannot assess the reliability of

the government’s evidence, then the “rebuttable” presumption

becomes effectively irrebuttable. Cf. Bismullah, 501 F.3d at 186

(noting that a rebuttable presumption of regularity “would be

irrebuttable, in effect, if neither petitioners’ counsel nor the

court could ever look behind the presumption to the actual

facts”).

 This court, in turn, has two responsibilities with respect to

the reliability of the evidence presented to the CSRT. First, in

order to judge “whether the [CSRT’s determination] was

consistent with the standards and procedures specified by the

Secretary of Defense for Combatant Status Review Tribunals,”
26

14[Classified material redacted.]

15[Classified material redacted.]

DTA § 1005(e)(2)(C)(i), we must assure ourselves that the

CSRT had the opportunity to -- and did -- evaluate the reliability

of the evidence it considered. Second, in order to ensure, as the

DTA requires, that “the conclusion of the Tribunal [is]

supported by a preponderance of the evidence,” allowing only

a “rebuttable” presumption in favor of the Government’s

evidence, id., we must be able to assess the reliability of that

evidence ourselves. 

Insistence that the Tribunal and court have an opportunity

to assess the reliability of the record evidence is not simply a

theoretical exercise. Parhat contends that the ultimate source of

key assertions in the four intelligence documents is the

government of the People’s Republic of China, and he offers

substantial support for that contention.14 Parhat further

maintains that Chinese reporting on the subject of the Uighurs

cannot be regarded as objective, and offers substantial support

for that proposition as well.15

The CSRT’s own written decision makes clear both its

inability to assess the reliability of most of the evidence

presented to it and the importance of its being able to do so.

Although the cover sheet of the Tribunal’s decision reaches the

bottom-line conclusion that Parhat “is properly designated as an

enemy combatant” because he “is affiliated with forces

associated with al Qaida and the Taliban (i.e., the ‘East

Turkistan Islamic Movement,’) which are engaged in hostilities

against the United States or its coalition partners,” CSRT

Decision, Cover Sheet (App. 10), the underlying decision is

considerably more qualified. It states: “The Tribunal found the

Detainee to be an enemy combatant because of his apparent
27

16The two instances, which we discuss in this footnote, involve

classified information. [Classified material redacted.]

ETIM affiliation . . . [classified material redacted], but despite

the fact that the ETIM is said to be making plans for future

terrorist activities against U.S. interests, no source document

evidence was introduced to indicate how this group has actually

done so . . . .” Id. encl. 2, at 3 (App. 16) (emphases added). It

further states that the “Detainee is considered to be an enemy

combatant because he is said to be affiliated with the ETIM,”

and that “[t]he camp at which he trained was an ETIM camp

apparently funded in part by Usama bin Laden and the Taliban.”

Id. at 1 (App. 14) (emphases added); see also id. at 2 (App. 15)

(referring again to Parhat’s “alleged ETIM affiliation”

(emphasis added)).

Moreover, in the two instances in which the CSRT did have

exogenous information with which to assess the reliability of

statements made in the intelligence documents, it found

sufficient discrepancies to question one statement and to “doubt

the veracity” of the other. Id. at 2-3 (App. 15-16).16 The

Tribunal plainly fulfilled its obligation to evaluate the reliability

of those two statements. In doing so, it performed the kind of

assessment that a CSRT must make in order to determine

whether a detainee has been properly classified as an enemy

combatant. And yet, that is precisely the kind of assessment that

the Tribunal could not make with respect to the bulk of the

evidence before it.

The government does not dispute that DOD’s standards and

procedures require that the CSRT be able to assess the reliability

of the record evidence. See Unclassified Oral Arg. Tr. 39. It

argues, however, that the Tribunal was able to do so here -- for

two reasons.
28

First, the government suggests that several of the assertions

in the intelligence documents are reliable because they are made

in at least three different documents. We are not persuaded.

Lewis Carroll notwithstanding, the fact that the government has

“said it thrice” does not make an allegation true. See LEWIS

CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said

it thrice: What I tell you three times is true.”). In fact, we have

no basis for concluding that there are independent sources for

the documents’ thrice-made assertions. To the contrary, as

noted in Part III, many of those assertions are made in identical

language, suggesting that later documents may merely be citing

earlier ones, and hence that all may ultimately derive from a

single source. And as we have also noted, Parhat has made a

credible argument that -- at least for some of the assertions -- the

common source is the Chinese government, which may be less

than objective with respect to the Uighurs. Other assertions in

the documents may ultimately rely on interview reports (not

provided to the Tribunal) of Uighur detainees, who may have

had no first-hand knowledge and whose speculations may have

been transformed into certainties in the course of being repeated

by report writers. 

Second, the government insists that the statements made in

the documents are reliable because the State and Defense

Departments would not have put them in intelligence documents

were that not the case. This comes perilously close to

suggesting that whatever the government says must be treated as

true, thus rendering superfluous both the role of the Tribunal and

the role that Congress assigned to this court. We do not in fact

know that the departments regard the statements in those

documents as reliable; the repeated insertion of qualifiers

indicating that events are “reported” or “said” or “suspected” to

have occurred suggests at least some skepticism. Nor do we

know whether the departments rely on those documents for

decisionmaking purposes in the form in which they were
29

17Cf. Rugendorf v. United States, 376 U.S. 528, 533 (1964)

(holding that a search warrant affidavit that withholds the name of an

informant is not deficient “so long as there [is] a substantial basis for

crediting the hearsay” based on other information (internal quotation

marks and citation omitted)); United States v. Laws, 808 F.2d 92, 95

(D.C. Cir. 1986) (affirming the sufficiency of a warrant based on a

confidential informant’s tip where there was “substantial reason to

believe that . . . the hearsay is reliable”).

presented to the Tribunal, or whether they supplement them with

backup documentation and reliability assessments before using

them to take actions of consequence. 

To be clear, we do not suggest that hearsay evidence is

never reliable -- only that it must be presented in a form, or with

sufficient additional information, that permits the Tribunal and

court to assess its reliability. Nor do we suggest that the

government must always submit the underlying basis for its

factual assertions in order to make such an assessment possible.

In many cases, such submissions will be advisable and

reasonably available: the detainees’ counsel are cleared for

classified information, and, where its source is highly sensitive,

Bismullah held that it can be shown to the court (and CSRT)

alone. See 501 F.3d at 180 (“[T]he Government may withhold

from counsel, but not from the court, certain highly sensitive

information.”). But there may well be other forms in which the

government can submit information that will permit an

appropriate assessment of the information’s reliability while

protecting the anonymity of a highly sensitive source. Courts

have frequently relied on such methods in the Fourth

Amendment context,17 and have permitted the use of appropriate

nonclassified substitutions under the Classified Information
30

18See CIPA, 18 U.S.C. App. III, § 4; United States v. Rezaq, 134

F.3d 1121, 1142-43 (D.C. Cir. 1998).

Procedures Act (CIPA).18 Indeed, the Navy Memorandum

expressly directs agencies with “reasonably available

information . . . bearing on the issue of whether the detainee

meets the criteria to be designated as an enemy combatant”

either to provide the information to the Tribunal or to provide

“an acceptable substitute,” which “may include an unclassified

or, if not possible, a lesser classified, summary of the

information.” Navy Memorandum at E-1 § E(3).

In this opinion, we neither prescribe nor proscribe possible

ways in which the government may demonstrate the reliability

of its evidence. We merely reject the government’s contention

that it can prevail by submitting documents that read as if they

were indictments or civil complaints, and that simply assert as

facts the elements required to prove that a detainee falls within

the definition of enemy combatant. To do otherwise would

require the courts to rubber-stamp the government’s charges, in

contravention of our understanding that Congress intended the

court “to engage in meaningful review of the record.”

Bismullah, 503 F.3d at 180 (emphasis added); see Boumediene,

slip op. at 49 (stating that the “DTA should be interpreted to

accord some latitude to the Court of Appeals to fashion

procedures necessary to make its review function a meaningful

one”).

V

Having concluded that the evidence before the CSRT was

insufficient to sustain its determination that Parhat is an enemy

combatant, we are left with the question of remedy. Parhat avers

that, while remand for a new CSRT may be appropriate in the
31

“usual” case in which the flaws a court identifies in the record

evidence are capable of correction, see Unclassified Oral Arg.

Tr. 12, his case is different because the CSRT’s errors “cannot

be cured,” Pet’r Br. 24. Remand here would serve no purpose,

he maintains, because the record on review is “the best record

the Government’s ever going to have in this case,” and the

government has no more reliable evidence to produce.

Unclassified Oral Arg. Tr. 12. He thus urges the court to order

that he be released or transferred to a country “other than China

or any of its satellites.” Pet’r Br. 27 n.31; see Unclassified Oral

Arg. Tr. 18.

Although we are cognizant of the time that Parhat has

already spent in detention, the procedural posture of this case

counsels against our directing immediate release or transfer and

in favor of giving the government the option of holding another

CSRT. At Parhat’s behest, we have limited our review to the

evidence presented to his CSRT, without awaiting the

production of all of the “Government Information” as required

by Bismullah. We therefore cannot know whether the

government has additional evidence that would cure the

reliability issues we have identified. 

This is not to suggest, however, that we will countenance

the “endless ‘do-overs’” that Parhat fears. Pet’r Br. 27. Even

the government concedes that the case for release will be

“substantially stronger” if it falls short after a second CSRT.

Unclassified Oral Arg. Tr. 46. And while the DTA does not

expressly grant the court release authority, there is a strong

argument (which the Supreme Court left unresolved in

Boumediene, see slip op. at 59, 63, and which we need not

resolve today) that it is implicit in our authority to determine

whether the government has sustained its burden of proving that

a detainee is an enemy combatant. Were that not the case, the

DTA would consign the court to issuing an endless series of
32

effectively advisory opinions on the quality of the government’s

evidence, a task we doubt Congress had in mind for the Judicial

Branch.

We also note that DTA review is not Parhat’s only, or his

best, path to release. Boumediene made it quite clear that, at

least for a detainee like Parhat who has been imprisoned for a

lengthy period and has already had a CSRT, a habeas corpus

proceeding in the district court is also available. See

Boumediene, slip op. at 65-66. He may pursue such a

proceeding immediately, without waiting to learn whether the

government will convene another CSRT. See id. at 66 (“The

detainees in these cases are entitled to a prompt habeas corpus

hearing.”); id. (holding that “both the DTA and the CSRT

process remain intact” and that “the petitioners in these cases

need not exhaust the [DTA] review procedures in the Court of

Appeals before proceeding with their habeas actions in the

District Court”). The habeas proceeding will have procedures

that are more protective of Parhat’s rights than those available

under the DTA. See id. at 49 (holding that the DTA’s review

procedures are not “as extensive or as protective of the rights of

the detainees as they would be in a § 2241 proceeding”). In that

proceeding, he will be able to make use of the determinations we

have made today regarding the decision of his CSRT, and he

will be able to raise issues that we did not reach. Most

important, in that proceeding there is no question but that the

court will have the power to order him released. Id. at 58

(holding that the habeas court has “authority to . . . issue

appropriate orders for relief, including, if necessary, an order

directing the prisoner’s release”); see also id. at 50. 
33

19The government is under district court order to give 30 days’

notice of intent to remove Parhat from Guantanamo. See Kiyemba v.

Bush, No. 05-1509, Mem. Order at 2-3 (D.D.C. Sept. 13, 2005). 

Accordingly, we direct the government to release Parhat, to

transfer him,19 or to expeditiously convene a new CSRT to

consider evidence submitted in a manner consistent with this

opinion. If the government chooses the latter course, it must --

to obviate the need for another remand -- present to that

Tribunal the best record of Parhat’s status as an enemy

combatant that it is prepared to make.

VI

Finally, we address the government’s motion to designate

as “protected information,” and thus to bar from public

disclosure, two categories of unclassified information in the

record on review.

In Bismullah, the government “propose[d] unilaterally to

determine whether [unclassified] information is ‘protected,’

meaning that petitioners’ counsel must keep it confidential and

file under seal any document containing such information.” 501

F.3d at 188. “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.’” Id. The court rejected this

proposal, holding that, “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.” Id.
34

In order to establish procedures for the handling of

protected information, the Bismullah court adopted a protective

order applicable to a group of eight DTA cases that included

Parhat’s. The order states: “The Government may apply to the

court to deem any information ‘protected,’ and if filed in this

court to be maintained under seal. Such information must be

maintained under seal unless and until the court determines the

information should not be designated as ‘protected.’”

Bismullah, No. 06-1197, Protective Order § 7.A (as amended

Oct. 23, 2007). The order defines “protected information” as:

“any . . . information deemed by the court, either upon

application by the Government or sua sponte, to require special

precautions in storage, handling, and control, in order to protect

the security of United States Government personnel or facilities,

or other significant government interests.” Id. § 3.F.

Information deemed protected under the order can be viewed by

opposing counsel but not by the public. Id. § 7.B. Classified

material is treated under separate provisions of the order. See,

e.g., id. § 5.

After the court issued the decision in Bismullah, the

government filed the motion that is presently before us. It seeks

to designate as “protected” the following two categories of

unclassified information: (1) “any names and/or identifying

information of United States Government personnel,” and (2)

“any sensitive law enforcement information.” Resp’t Mot. to

Designate at 2 (Oct. 1, 2007). The government’s rationale for

protection is brief. In support of protecting the former category,

the motion states: “It is appropriate to protect from public

disclosure unclassified information identifying Government

personnel because . . . [t]he risks to the safety of those personnel

[, particularly those who often deploy to locations abroad,]

would be heightened if their involvement in the detention of

enemy combatants at Guantanamo were made public.” Id. In

support of protecting the latter category, the motion states: “It
35

20The government has not yet provided the full record on review

as defined in Bismullah in any DTA case, and it has not provided the

full CSRT record in many cases.

is . . . appropriate to protect Law Enforcement Sensitive

material” because public disclosure “could harm the

Government’s ongoing law enforcement activities related to the

global war against al Qaeda and its supporters.” Id. at 3.

The government filed the instant motion in identical form

in over one hundred other pending DTA cases. At the time it

filed the motion, the government had not yet provided Parhat’s

counsel -- or counsel for any of the other petitioners -- with the

record on review.20 A fortiori, it had not yet submitted the

designations of the information it regarded as falling into the

protected categories. Granting the motion under those

circumstances, without knowing which material the government

would ultimately designate, would be indistinguishable from

permitting the government “unilaterally to determine whether

information is ‘protected.’” Bismullah, 501 F.3d at 188.

Bismullah plainly bars that result.

The designation problem has not yet been completely

resolved, even in Parhat’s case. Although the government has

now provided the court and Parhat’s counsel with his CSRT

record, its method of designating material as protected is less

than clear. Some pages have been marked with the inscription

“LES” for “Law Enforcement Sensitive,” without indicating

whether the designation is intended to apply to all material on

the page. Some pages contain blacked-out lines that appear to

be intended as redactions, although the underlying words are

still legible. (We understand from oral argument that some of

what appear as black-outs were intended as highlights.) And

some lines are completely blacked out, making review by the
36

court impossible and acceptance of the government’s unilateral

determination the only ground upon which the material could be

protected.

But correction of the government’s marking protocol will

not cure the underlying flaw in the government’s motion. As set

forth above, the motion relies solely on spare, generic assertions

of the need to protect information in the two categories it

identifies. The government does not “give the court a basis for

withholding” that is specific to the information it has designated

in this case. Bismullah, 501 F.3d at 188. Nor does it offer any

basis upon which we may determine whether the information it

has designated properly falls within the categories it has

described. 

We do not doubt that there is sensitive law enforcement

information that warrants protection from disclosure. Nor does

counsel for Parhat. See Pet’r Reply Br. 19. But “Law

Enforcement Sensitive” is an imprecise term; at least seven

different federal agencies define it differently. See U.S.

GOVERNMENT ACCOUNTABILITY OFFICE, GAO 06-385,

Information Sharing: The Federal Government Needs to

Establish Policies and Processes for Sharing Terrorism-Related

and Sensitive but Unclassified Information 24 (2006); cf. Pres.

George W. Bush, Memorandum for the Heads of Executive

Departments and Agencies: Designation and Sharing of

Controlled Unclassified Information (CUI) (May 9, 2008)

(establishing a new framework for “controlled unclassified

information”). Similarly, we do not doubt that the names and

identifying information of some United States Government

personnel should be designated as “protected.” Again, neither

does Parhat’s counsel, who readily concedes that the designation

is appropriate for those military personnel who participated in

CSRT hearings and may be for others as well. Pet’r Reply Br.

19. But there are also some “U.S. Government personnel”
37

whose names appear in the record on review who are so publicly

associated with Guantanamo that protected status would plainly

be unwarranted. 

By resting its motion on generic claims applicable to all of

the more than one hundred cases in which the motion was filed,

the government has effectively duplicated its request

“unilaterally to determine whether information is ‘protected.’”

Bismullah, 501 F.3d at 188. Without an explanation tailored to

the specific information at issue, we are left with no way to

determine whether it warrants protection -- other than to accept

the government’s own designation. This we cannot do because,

as we held in Bismullah, “[i]t is the court, not the Government,

that has discretion to seal a judicial record, which the public

ordinarily has the right to inspect and copy.” Id. (internal

citations omitted); see also Bismullah Protective Order § 3.F

(defining “protected information” as “information deemed by the

court . . . to require special precautions . . . in order to protect

the security of United States Government personnel or facilities,

or other significant government interests” (emphasis added)).

Because we are unable to determine, on the pleadings

before us, whether the information that the government has

designated should be deemed “protected,” we deny the

government’s motion without prejudice. “Such information

must,” however, “be maintained under seal unless and until the

court determines the information should not be designated as

‘protected.’” Id. § 7.A (emphasis added). The government is

directed to file, within 30 days, a renewed motion, accompanied

by a marked copy of Parhat’s CSRT record indicating the

information for which it seeks protected status. That filing must

also be accompanied by pleadings specifically explaining why

protected status is required for the information that has been

marked. Opposing counsel may file a response, and the

government may file a reply, pursuant to our usual rules.
38

21See supra note 19.

VII

Congress has directed this court “to determine the validity

of any final decision of a Combatant Status Review Tribunal

that an alien is properly detained as an enemy combatant.” DTA

§ 1005(e)(2)(A). In so doing, we are to “determine,” inter alia,

whether the CSRT’s decision “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.” Id. § 1005(e)(2)(C)(i). A

CSRT’s decision regarding enemy combatant status was not

consistent with those standards and procedures unless the

Tribunal had -- and took -- the opportunity to assess the

reliability of the evidence that the government presented to it.

Nor can this court conclude that such a decision was consistent

with those standards and procedures unless we, too, are able to

assess the reliability of the government’s evidence. Because the

evidence that the government submitted to Parhat’s CSRT did

not permit the Tribunal to make the necessary assessment, and

because the record on review does not permit the court to do so,

we cannot find that the government’s designation of Parhat as an

enemy combatant was consistent with the specified standards

and procedures and is supported by a preponderance of the

evidence.

We therefore direct the government to release or to

transfer21 the petitioner, or to expeditiously hold a new CSRT

consistent with this opinion. This disposition is without

prejudice to Parhat’s right to seek release immediately through

a writ of habeas corpus in the district court, pursuant to the

Supreme Court’s decision in Boumediene, slip op. at 65-66. We
39

also deny, without prejudice, the government’s motion to

designate certain unclassified material in the CSRT record as

“protected information,” subject to the filing of a renewed

motion accompanied by pleadings sufficient to explain why such

designations are warranted in this case.

So ordered.