No Easy Answers


Saturday, July 21, 2007

Bismillah v. Gates: Court Access to Evidence Supporting Detention [CADC 06-1197]

Source: http://pacer.cadc.uscourts.gov/docs/common/opinions/200707/06-1197a.pdf

H/T: HowAppealing

Some analysis at Scotus Blog, noting how this decision relates to and will play a part in SCOTUS hearing of Boumediene v. Bush (06-1196) and Al Odah v. U.S. (06-1196)



             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


                         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


        *
          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."



                                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

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))

        *
          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."


                                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

     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


        *
           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).


                                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 attorney-
client 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 attorney-
client 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, § 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


        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).


                                 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).


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