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Article Context: No rehearing on major detainee ruling (SCOTUSblog)

            United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT


                   Filed February 1, 2008


                        No. 06-1197

Haji Bismullah a/k/a Haji Bismillah, and a/k/a Haji Besmella,
   Haji Mohammad Wali, Next Friend of Haji Bismullah,
                         Petitioners

                              v.

           Robert M. Gates, Secretary of Defense,
                       Respondent

                          _______

                        No. 06-1397

                    Huzaifa Parhat, et al.,
                        Petitioners

                              v.

        Robert M. Gates, Secretary of Defense, et al.,
                       Respondents


   [additional case numbers and parties snipped for brevity]


       On Petition for Rehearing En Banc and Motions
                          _______

    BEFORE:       GINSBURG, Chief Judge, and SENTELLE,
                  HENDERSON, RANDOLPH, ROGERS, TATEL,
                  GARLAND, BROWN, GRIFFITH, and
                  KAVANAUGH, Circuit Judges

                         ORDER

     Respondents' petition for rehearing en banc and the
response thereto were circulated to the full court, and a vote
was requested. Thereafter, a majority of the judges eligible to
participate did not vote in favor of the petition. Upon
consideration of the foregoing and the motion to expedite
review of the petition for rehearing en banc and any
subsequent proceedings; the motion for leave to file ex
parte/in camera top secret-SCI declarations for judges' review
only and the joint opposition thereto; and the letters filed
pursuant to Federal Rule of Appellate Procedure 28(j), it is

    ORDERED that the petition for rehearing en banc be
denied. It is

    FURTHER ORDERED that the motion to expedite be
dismissed as moot. It is

     FURTHER ORDERED that the motion for leave to file
ex parte/in camera top secret-SCI declarations for judges'
review only be granted.

                               5

                      Per Curiam

                            FOR THE COURT:
                            Mark J. Langer, Clerk

                      BY:

                            Deputy Clerk

    Circuit Judges SENTELLE, HENDERSON, RANDOLPH,
BROWN, and KAVANAUGH would grant the petition for
rehearing en banc.

    A separate statement concurring in the denial of rehearing
en banc filed by Chief Judge GINSBURG, with whom Circuit
Judges ROGERS, TATEL, and GRIFFITH join, is attached.

    A separate statement concurring in the denial of rehearing
en banc filed by Circuit Judge GARLAND is attached.

    A separate statement dissenting from the denial of
rehearing en banc filed by Circuit Judge HENDERSON, with
whom Circuit Judges SENTELLE, RANDOLPH, and
KAVANAUGH join, is attached.

    A separate statement dissenting from the denial of
rehearing en banc filed by Circuit Judge RANDOLPH, with
whom Circuit Judges SENTELLE, HENDERSON, and
KAVANAUGH join, is attached.

    A separate statement dissenting from the denial of
rehearing en banc filed by Circuit Judge BROWN is attached.


     GINSBURG, Chief Judge, with whom Circuit Judges
ROGERS, TATEL, and GRIFFITH join, concurring in the denial of
rehearing en banc: The panel that heard this case held that "the
record on review must include all the Government Information,"
which the controlling DoD Regulations define as "reasonably
available information in the possession of the U.S. Government
bearing on the issue of whether the detainee meets the criteria to
be designated as an enemy combatant." Bismullah v. Gates
(Bismullah II), 503 F.3d 137, 138-39 (2007); Bismullah v. Gates
(Bismullah I), 501 F.3d 178, 185-86 (2007); E-1 § E(3). In his
dissent from the court's denial of rehearing en banc, Judge
Randolph says of the panel's ruling that it "is contrary to the rule
and the statute governing the contents of the record in cases such
as these, it violates the restrictions on our jurisdiction in the
Detainee Treatment Act [(DTA), Pub. L. No. 109-148, §
1005(e)(2), 119 Stat. 2680, 2742-43 (Dec. 30, 2005) (codified as
amended at 10 U.S.C. § 801 note)], and it risks serious security
breaches for no good reason." Stmt. of Randolph, J., at 1. Like
Judge Randolph, I would not ordinarily write a separate opinion
on a denial of rehearing en banc, but his suggestion that the
panel's decision was not only erroneous but also dangerous
should not go unremarked.

     Judge Randolph contends that 28 U.S.C. § 2112(b) and
Federal Rule of Appellate Procedure 16(a), which implements
§ 2112(b), "make crystal clear that ... the record does not include
information never presented to the Combatant Status Review
Tribunal" (CSRT).1 Stmt. of Randolph, J., at 1-2. Section

---
    1
      Judge Randolph also implies the panel ignored the provisions
of the DoD Regulations that define the "Record of Proceedings"
before the CSRT, namely, E-2 § C(8) & (10). In fact, the panel not
only epitomized both E-2 § C(8) and E-2 § C(10), see Bismullah I,
501 F.3d at 182; see also Bismullah II, 503 F.3d at 139 (citing E-2 §
C(8)), it expressly rejected the Government's contention that the


                                 2

2112(b) states: "The record to be filed in the court of appeals ...
shall consist of the order sought to be reviewed or enforced, the
findings or report upon which it is based, and the pleadings,
evidence, and proceedings before the agency, board,
commission, or officer concerned." Accord FED. R. APP. P.
16(a). The term "agency," in turn, "includes any department,
independent establishment, commission, administration,
authority, board or bureau of the United States ... unless the
context shows that such term was intended to be used in a more
limited sense." 28 U.S.C. § 451. Judge Randolph asserts that §
2112(b) applies to our review pursuant to the DTA of a CSRT's
status determination because a CSRT is within a military
department and a "military department is a `department' under
§ 451, and thus an `agency' under § 2112(b)." Stmt. of
Randolph, J., at 3.

     Section 2112(b) does not define the record on review of a
CSRT proceeding because a military department is not an
agency under 28 U.S.C. § 451. Several provisions of Title 28
distinguish between an "agency" and a "military department,"
which necessarily implies that a military department is not an
agency. See 28 U.S.C. § 530D(e) ("executive agencies and
military departments"); 28 U.S.C. § 530C(b)(L)(iv) ("executive
agency or military department"); 28 U.S.C. § 530D(d)
("executive agency or military department"); cf. 28 U.S.C. §
2671 (defining "[f]ederal agency" specifically to include "the
military departments" for purposes of certain sections of Title 28


---
Record of Proceedings constitutes the record on review for reasons
stated in the panel's two opinions. See Bismullah I, 501 F.3d at 184-
86; Bismullah II, 503 F.3d at 139-41.


                                3

that have no bearing upon § 2112).2

     Judge Randolph dismisses these provisions on the ground
that in them the term "agency" is always modified by
"executive" or "federal," which suggests a more limited
conception of "agency" there than in § 451, where it appears
without modification. Stmt. of Randolph, J., at 3. For
confirmation, he points to § 2 of the Administrative Procedure
Act, 5 U.S.C. § 551(1)(F), which excludes "courts martial and
military commissions" from the definition of "agency" for
purposes of that Act. Stmt. of Randolph, J., at 3 & n.3. Judge
Randolph seems to believe that by defining "agency" broadly
and then excluding courts martial and military commissions, the
APA implies that courts martial and military commissions are
agencies except where "expressly excluded"; because Title 28,
unlike the APA, does not expressly exclude courts martial and
military commissions from its scope, courts martial and military
commissions are presumably agencies for purposes of that title,
including §§ 451 and 2112.

     This reasoning tells us nothing about a CSRT, however,
unless a CSRT is a court martial or military commission, which
it assuredly is not. See 10 U.S.C. § 802 (specifying persons
subject to court martial); 10 U.S.C. § 817 (defining jurisdiction
of court martial); 10 U.S.C. §§ 877-934 (enumerating
substantive offenses that may be tried before a court martial);
see 10 U.S.C. § 948b(f) (defining "military commission"); 10

---
    2
       See W. Va. Univ. Hosps. v. Casey, 499 U.S. 83, 88-92, 100-01
(1991) (holding "attorney's fees" and "expert fees" distinct for
purposes of 42 U.S.C. § 1988 because "[i]f ... the one includes the
other, dozens of statutes referring to the two separately become an
inexplicable exercise in redundancy").


                                    4

U.S.C. § 948d(c) (distinguishing military commission from
CSRT); compare DTA § 1005(e)(2) ("Review of decisions of
combatant status review tribunals of propriety of detention")
with DTA § 1005(e)(3) ("Review of final decisions of military
commissions").3 Not coming within any exclusion from the
APA, therefore, a CSRT must be either an agency subject to the
APA or, as I believe it is, something sui generis and outside the
contemplation of the APA. If a CSRT were an agency subject
to the APA, then the detainees at Guantánamo would
presumably be entitled to the significant procedural rights
afforded by the APA. The notion that a CSRT is subject to the
APA is completely inconsistent with the Congress'
understanding when, by enacting the DTA, it ratified the
procedural framework for CSRTs established by the DoD
Regulations. In summary, a CSRT can be structured as it is
under the DoD Regulations only because it is not a court martial,
not a military commission, and not an agency.4

---
     3
      Judge Randolph says 5 U.S.C. § 551 also expressly excludes
"other military authorities." Stmt. of Randolph, J., at 3 n.3. In fact,
the exclusion is for "military authority exercised in the field in time of
war or in occupied territory." 5 U.S.C. § 551(1)(G). Citing his own
concurring opinion in Al Odah v. United States, 321 F.3d 1134, 1149
(2003), Judge Randolph argues a CSRT is a military authority
exercised in the field in a time of war. Stmt. of Randolph, J., at 3 n.3.
No court has ever so held and, in any event, no party to this case has
suggested as much.
     4
        Of course, if a CSRT were a court martial or a military
commission, then the detainees would be entitled to greater procedural
rights than they have under the DoD Regulations. See 10 U.S.C. §§
830-876b (defining procedures for court martial); 10 U.S.C. §§ 948q-
950j (defining procedures for military commission).


                                 5

     It would be particularly untoward to apply § 2112(b)
outside its apparent field of application ­ and particularly
improbable the Congress so intended ­ when the result would be
to preclude the court from discharging the review function
assigned to it in the DTA. That review function is broader than
Judge Randolph suggests. The DTA charges the court with
reviewing not only "whether ... the conclusion of the Tribunal
[was] supported by a preponderance of the evidence," but also
whether it was reached in a manner "consistent with the
standards and procedures specified by the Secretary of Defense"
for CSRTs. DTA § 1005(e)(2)(C).

     The DoD Regulations, which establish the "standards and
procedures" to be followed by the Recorder, the detainee's
Personal Representative, and the CSRTs themselves, require the
Recorder to obtain all the Government Information, E-1 § C(2);
E-2 § C(1), to cull from the Government Information and
forward to the Tribunal such information "as may be sufficient
to support the detainee's classification as an enemy combatant"
together with all exculpatory information, E-1 § H(4); E-2 §§
B(1), C(6), and to share all the Government Information with the
detainee's Personal Representative, E-1 § F(8); E-2 § C(4). In
order to review whether the Recorder performed these tasks, the
court obviously must see all the Government Information.5 See

---
    5
       The record before the court suggests the Recorder has not
always fulfilled his obligations under the DoD Regulations. See Decl.
of Stephen Abraham, Lieutenant Colonel, U.S. Army Reserve ¶¶ 5-19
(June 15, 2007) (stating "the information comprising the Government
Information and the Government Evidence was not compiled
personally by the CSRT Recorder;" "on a number of occasions" his
request that an originating agency provide "a written statement that
there was no exculpatory evidence ... [was] summarily denied;" the


                                    6

Bismullah I, 501 F.3d at 185-86; Bismullah II, 503 F.3d at 139-
40. Further, the court will be able to assess whether any failure
by the Recorder to perform these tasks affected the weight of the
evidence before the CSRT only if the court can consider that
failure in light of all the information the Recorder was supposed
to collect and forward. See Bismullah I, 501 F.3d at 185-86;
Bismullah II, 503 F.3d at 139-40. Irrespective, therefore, of
what § 2112 might say in general about the scope of a record on
review, the DTA requires that the record on review of a CSRT's
status determination include all the Government Information,
regardless whether it was all put before the Tribunal.

     Judge Randolph lodges two pragmatic objections to this
analysis. First, he argues "it is impossible for us to determine
whether any particular piece of information was obtained or was
not obtained by any particular Recorder in any particular
detainee's case" because "Recorders ... did not save the
information they obtained unless" they forwarded it "to the
Tribunal." Stmt. of Randolph, J., at 5-6. Judge Randolph is
correct ­ which is why the panel held the Government could

---
people "preparing materials for use by the CSRT board members did
not know whether they had examined all available information or even
why they possessed some pieces of information but not others;" and
"the case writer or Recorder, without proper experience or a basis for
giving context to information, often rejected some information
arbitrarily while accepting other information without any articulable
rationale"); Decl. of James M. McGarrah, Rear Admiral (Ret.), U.S.
Navy ¶¶ 4-6, 10-13 (May 31, 2007) (stating that after September 1,
2004 the Recorder did not "personally collect[] the Government
Information" and that the Recorder withheld from the Tribunal
exculpatory Government Information if in his view it was
"duplicative" or "if it did not relate to a specific allegation being made
against the detainee").


                                7

either "reassemble the Government Information it did collect or
... convene a new CSRT." Bismullah II, 503 F.3d at 141-42.6

     Second, Judge Randolph argues that "at most ... the record
on review should consist only of the evidence before the
Tribunal plus any exculpatory information the government has
discovered." Stmt. of Randolph, J., at 6. Of course, the
Recorder is supposed to forward all the exculpatory Government
Information to the Tribunal. See E-1 § H(4); E-2 §§ B(1), C(6).
But the court is no more able than the CSRT itself to determine
whether the Recorder withheld any exculpatory Government
Information from the CSRT ­ unless, that is, subject to the
national security limitations discussed below, counsel may see
and draw the attention of the court to any arguably exculpatory
Government Information the Recorder did not put before the
Tribunal. See Decl. of Stephen Abraham, Lieutenant Colonel,
U.S. Army Reserve ¶¶ 10-17 (June 15, 2007) ("asked to confirm
and represent in a statement to be relied upon by the CSRT
board members that the [originating intelligence] organizations
did not possess `exculpatory information' relating to [detainees
who were] the subject of the CSRT, ... [I could not] reach [such]
a conclusion ... without knowing that I had seen all information,
[but I] was never told that the information that was provided [to
me by the originating organizations] constituted all available
information").

---
    6
       The Government is reportedly now "review[ing] ... whether to
conduct new hearings" out of concern that it may not have "take[n]
everything into consideration when [it] did the original" CSRTs.
William Glaberson, New Detention Hearings May Be Considered,
N.Y. TIMES, Oct. 14, 2007 (quoting Capt. Theodore Fessel, Jr.),
available at  http://www.nytimes.com/2007/10/14/us/14cnd-gitmo.html.


                                  8

      One need not impute to the Recorder negligence much less
bad faith to see that the DTA requires the court to review his
adherence to the DoD Regulations. Because the DoD
Regulations assign to the Recorder a central role in the CSRT
process, to ignore the actions of the Recorder ­ and especially
to ignore the evidence the Recorder did not put before the
Tribunal ­ would render utterly meaningless judicial review
intended to ensure that status determinations are made
"consistent with" the DoD Regulations. DTA § 1005(e)(2)(C).
Unlike the final decision rendered in a criminal or an agency
proceeding, which is the product of an open and adversarial
process before an independent decisionmaker, a CSRT's status
determination is the product of a necessarily closed and
accusatorial process in which the detainee seeking review will
have had little or no access to the evidence the Recorder
presented to the Tribunal, little ability to gather his own
evidence, no right to confront the witnesses against him, and no
lawyer to help him prepare his case, and in which the
decisionmaker is employed and chosen by the detainee's
accuser. See E-1 §§ A, B, C(1), C(3), E(2), E(4), F, G(2), G(8),
G(9), H(7).7 As a result, the Recorder's failure to adhere to the
DoD Regulations can influence the outcome of the proceeding
to a degree that a prosecutor or an agency staff member cannot;
as a practical matter, the Recorder may control the outcome.
For this court to ignore that reality would be to proceed as
though the Congress envisioned judicial review as a mere

---
     7
      The detainee obviously cannot be given access to the classified
portion of the Government Information. The detainee's Personal
Representative, who is "neither a lawyer nor [the detainee's]
advocate," E-3 § D, is not obligated to but "may share the unclassified
portion of the Government Information with the detainee." E-1 §§
F(8), G(8), H(7).


                                   9

charade when it enacted the DTA. Thus, the analogy Judge
Henderson draws between our review of status determinations
under the DTA and our review of agency decisions, Stmt. of
Henderson, J., at 3-4, is inapt.

      Judge Henderson's comparison of a status determination
proceeding before a CSRT to a probable cause hearing for a
criminal defendant is likewise wide of the mark. She asks, "If
we can determine whether the preponderance of the evidence
supports a probable cause finding sufficient to hold an arrestee
for trial without knowing (much less, reviewing) all the evidence
in the prosecutor's possession, can we not do so in reviewing the
evidence supporting the `enemy combatant' designation?" Stmt.
of Henderson, J., at 2-3. The critical question, however, is not
whether it is possible for the court to review the determination
of a CSRT based solely upon the evidence that was before the
CSRT, but whether that would be the presumably meaningful
review the Congress prescribed. Note also that a panoply of
constitutional and statutory protections ensures that a person
imprisoned after a probable cause hearing will receive a speedy
trial and be convicted or released, thereby mitigating the impact
of an erroneous finding of probable cause predicated upon
limited and possibly one-sided evidence. In contrast, the
determination of a CSRT is only a determination of the
detainee's status as an enemy combatant.8 Thereafter, it may be

---
     8
       The DoD Regulations define an enemy combatant as "an
individual who was part of or supporting Taliban or al Qaida forces,
or associated forces that are engaged in hostilities against the United
States or its coalition partners." E-1 § B; see also Hamdi v. Rumsfeld,
542 U.S. 507, 518 (2004): "The purpose of detention is to prevent
captured individuals from returning to the field of battle and taking up
arms once again." The Government reportedly "hope[s] to try


                                   10

that nothing prevents the Government from holding an enemy
combatant "for the duration of the relevant conflict." Hamdi v.
Rumsfeld, 542 U.S. 507, 518-21 (2004)9; see Boumediene v.
Bush, 476 F.3d 981, 988-94 (D.C. Cir. 2007) (holding alien
detained as enemy combatant at Guantánamo Bay has no
constitutional right to writ of habeas corpus), cert. granted, 127
S. Ct. 3078 (June 29, 2007) (No. 06-1195).

      Finally, Judge Randolph raises the concern that "sharing
[the Government Information] with private counsel [will] give[]
rise to a severe risk of a security breach." Stmt. of Randolph, J.,
at 6. The panel, however, accommodated, to the full extent
requested by the Government, its position that certain types of

---
eventually as many as 80 of the 305 detainees at Guantánamo,"
William Glaberson, Witness Names to Be Withheld From Detainee,
N.Y. TIMES, Dec. 1, 2007, available at
http://www.nytimes.com/2007/12/01/us/nationalspecial3/01gitmo.h
tml, which suggests that, if the Government intends to continue
holding the remaining 225 detainees, it intends to do so solely upon
the basis of their status determinations.

     9
        The Supreme Court left open the question whether the
Government may subject an enemy combatant to an "indefinite or
perpetual detention." Hamdi, 542 U.S. at 521 ("[W]e understand
Congress' grant of authority for use of `necessary and appropriate
force' to include the authority to detain for the duration of the relevant
conflict, and our understanding is based on longstanding law-of-war
principles. If the practical circumstances of a given conflict are
entirely unlike those of the conflicts that informed the development of
the law of war, that understanding may unravel. But that is not the
situation we face as of this date.") (quoting Authorization for Use of
Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)).


                               11

Government Information cannot be disclosed to the petitioners'
counsel without jeopardizing national security. The panel
"provid[ed], just as the Government urged, that it may withhold
from the petitioners' counsel any Government Information that
is either `highly sensitive information, or ... pertain[s] to a
highly sensitive source or to anyone other than the detainee,'" as
long as the Government makes the withheld information
available to the court for review in camera. Bismullah II, 503
F.3d at 142 (quoting Bismullah I, 501 F.3d at 187). The panel
also stressed that, under the DoD Regulations, "`information in
the possession of the U.S. Government bearing on the issue of
whether the detainee meets the criteria to be designated as an
enemy combatant' comes within the definition of Government
Information only if it is `reasonably available.'" Bismullah II,
503 F.3d at 141 (quoting E-1 § E(3)); see also Bismullah I, 501
F.3d at 180, 192. And, as the panel observed, an "originating
agency" may, pursuant to the DoD Regulations, "decline[] to
authorize [classified information] for use in the CSRT process,"
presumably for reasons of national security, in which case that
classified information is deemed "not reasonably available" and
accordingly is not Government Information. E-1 § D(2); see
Bismullah II, 503 F.3d at 142-43. If these options are
insufficient to safeguard national security, then the Secretary of
Defense, to whom the DTA assigns responsibility for
establishing the standards and procedures that govern CSRTs,
may revise the DoD Regulations.

    Judge Brown criticizes the panel's "reliance" upon the term
"reasonably available" because it "provides not a process-based
definition, but an abstract legal standard." Stmt. of Brown, J.,
at 1. The panel, however, did not invent the "reasonably
available" standard; it is a feature of the controlling DoD
Regulations. Further, the "reasonably available" standard is not


                               12

as open-ended as Judge Brown suggests, in important part
because, as just noted, the national security agencies may
withhold classified information from the Recorder, thereby
rendering it "not reasonably available."

     In closing, I note that the Supreme Court, in the order
granting a writ of certiorari in Boumediene, stated that "it would
be of material assistance to consult any decision" reached by this
court in Bismullah. Judge Henderson contends that "we do the
Supreme Court no favor by not fully considering potentially
determinative matters." Stmt. of Henderson, J., at 6 n.6. After
merits briefing, oral argument, an opinion by the panel (in which
Judge Henderson joined), a petition for rehearing and a response
thereto, the petitioners' post-argument letter filed pursuant to
FRAP 28(j) and the Government's response thereto, and a
supplemental opinion by the panel (in which Judge Henderson
again joined), there can be no doubt that all the issues presented
in the parties' procedural motions have been aired and fully
considered.


       GARLAND, Circuit Judge, concurring in the denial of
rehearing en banc: On June 29, 2007, the Supreme Court
granted the detainees' petition for certiorari in Boumediene v.
Bush, 476 F.3d 981 (D.C. Cir. 2007). In granting that petition,
the Court advised the parties that "it would be of material
assistance to consult any decision in Bismullah, et al. v. Gates,
. . . currently pending in the United States Court of Appeals for
the District of Columbia Circuit," and that "supplemental
briefing will be scheduled upon the issuance of any decision" in
that case. Boumediene v. Bush, 127 S. Ct. 3078 (2007). The
Supreme Court heard oral argument in Boumediene on
December 5, 2007. Were we to grant en banc review in
Bismullah, we would plainly delay our decision and hence the
Supreme Court's disposition of Boumediene. As delaying the
latter is contrary to the interests of all of the parties, as well as
to the public interest, I concur in the denial of rehearing en banc
without reaching the merits.


    KAREN LECRAFT HENDERSON, Circuit Judge, with whom
Circuit Judges SENTELLE, RANDOLPH, and KAVANAUGH join,
dissenting from the denial of rehearing en banc: The Detainee
Treatment Act of 2005 (DTA) gives exclusive jurisdiction to
this Court "to determine the validity of any final decision of
[the] Combatant Status Review Tribunal that an alien is properly
detained as an enemy combatant." Pub. L. No. 109-148
§ 1005(e)(2)(A), 119 Stat. 2680, 2742 (Dec. 30, 2005). While
the DTA is not unique in this respect, to me our exclusive
jurisdiction underscores the charge given to our entire Court to
hear and weigh all issues fairly encompassed in determining the
validity of the CSRT's decision. Granted, we are now only at
the preliminary stage of that determination, that is, resolving
procedural motions. In two respects, however, I am convinced
that our entire Court should hear and consider the protective
order which both sides have asked us to enter. Accordingly, I
dissent from the en banc denial.1

            I. The Scope of the Record on Review.

    Bismullah II attempts to correct the Government's
overreading of Bismullah I's description of the record on review
by, first, repeating the panel's reading of the Government
Information (defined by DoD Regulation E-1 § E(3)) as
including only information "reasonably available" (again,
specified by DoD Regulation E-1 § E(3)) and, then, by
concluding that "information without regard to whether it is
`reasonably available' is clearly not required by Bismullah I."
Bismullah II, 503 F.3d at 141. Bismullah II, however, leaves

---
    1
      I note that, as a member of the panel whose original opinion
issued on July 20, 2007, Bismullah v. Gates, 501 F.3d 178 (D.C. Cir.
2007) (Bismullah I), and whose opinion denying the Government's
petition for panel rehearing issued on October 3, 2007, Bismullah v.
Gates, 503 F.3d 137 (D.C. Cir. 2007) (Bismullah II), I joined both
opinions. Nevertheless, as set forth hereinbelow, matters remain that
were unaddressed at the panel level--matters that may be
determinative and should at least be heard and weighed by all of us.


                                  2

intact the panel's original conclusion that "whether the
preponderance of the evidence supported the conclusion of the
Tribunal, cannot be ascertained without consideration of all the
Government Information." Id. at 140 (citing Bismullah I, 501
F.3d at 185-86.)

     Why we are unable to otherwise conduct our limited review
of the validity of the CSRT's decision is left largely
unexplained.2 But in the criminal context--where the
protections accorded the arrestee are greater and our review is,
accordingly, more searching--our Court is plainly able to
review the conduct of a preliminary hearing without knowing all
the evidence the prosecution has gathered. The reason, of
course, is that the preliminary hearing is limited in scope.
Coleman v. Burnett, 477 F.2d 1187, 1201 (D.C. Cir. 1973)
("The preliminary hearing is not a minitrial of the issue of guilt,
. . . `A preliminary hearing,' the Supreme Court has said, `is
ordinarily a much less searching exploration into the merits of
a case than a trial, simply because its function is the more
limited one of determining whether probable cause exists to hold
the accused for trial.'" (quoting Barber v. Page, 390 U.S. 719,
725 (1968))). So too is the CSRT's mission: that is, at this
stage, it must decide simply whether the detainee is an enemy
combatant. Only if he is one can he, presumably, then be held
for trial before a military commission. If we can determine
whether the preponderance of the evidence supports a probable
cause finding sufficient to hold an arrestee for trial without
knowing (much less, reviewing) all the evidence in the
prosecutor's possession, can we not do so in reviewing the

---
    2
     Bismullah I does note that "the court cannot, as the DTA charges
us, consider whether a preponderance of the evidence supports the
Tribunal's status determination without seeing all the evidence, any
more than one can tell whether a fraction is more or less than one half
by looking only at the numerator and not at the denominator."
Bismullah I, 501 F.3d at 186.


                                  3

evidence supporting the "enemy combatant" designation?3 And
should not all of us at least hear the arguments for and against,
especially in the national security context? And especially given
the showing the Government has made in both its unclassified
and ex parte and in camera submissions? Bismullah II, 503 F.3d
at 138 n.1.

    Even if we use the administrative agency analogy instead,
the Supreme Court has made clear that we have no license to
"create" a record consisting of more than the agency itself had
before it. Camp v. Pitts, 411 U.S. 138, 142 (1973) ("[t]he focal
point for judicial review should be the administrative record
already in existence, not some new record made initially in the
reviewing court."); Doraiswamy v. Sec'y of Labor, 555 F.2d
832, 839-40 (D.C. Cir. 1976) ("This circumscription [that
review be confined to the administrative record], which the
Court has consistently honored in other cases, stems from well
ingrained characteristics of the administrative process. The
administrative function is statutorily committed to the agency,
not the judiciary. A reviewing court is not to supplant the agency

---
    3
      A detainee is not a criminal defendant. "The capture and
detention of lawful combatants and the capture, detention, and trial of
unlawful combatants, by `universal agreement and practice,' are
`important incident[s] of war.'" Hamdi v. Rumsfeld, 542 U.S. 507,
518 (2004) (quoting Ex parte Quirin, 317 U.S. 1, 28, 30 (1942)).
"The purpose of detention is to prevent captured individuals from
returning to the field of battle and taking up arms once again." Id.
(citing Naqvi, Doubtful Prisoner-of-War Status, 84 Int'l Rev. Red
Cross 571, 572 (2002) ("[C]aptivity in war is `neither revenge, nor
punishment, but solely protective custody, the only purpose of which
is to prevent the prisoners of war from further participation in the
war'" (quoting decision of Nuremberg Military Tribunal, reprinted in
41 Am. J. Int'l L. 172, 229 (1947))); W. Winthrop, Military Law and
Precedents 788 (rev. 2d ed. 1920) ("`A prisoner of war is no convict;
his imprisonment is a simple war measure'" (citations omitted))).


                                 4

on the administrative aspects of the litigation. . . . The grounds
upon which an administrative order must be judged are those
upon which the record discloses that its action was based . . . .")
(internal citations, quotations and footnotes omitted); Walter O.
Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 793 (D.C. Cir.
1984) (explaining that the record for the reviewing court is
limited to "that information before the [agency] at the time of
[its] decision, . . . thus excluding ex post supplementation of the
record by either side."); Mail Order Ass'n of Am. v. U.S. Postal
Serv., 2 F.3d 408, 433-34 (D.C. Cir. 1993) (same). Again,
should we not at least hear and weigh the arguments for and
against in the national security context?

  II. Detainees' Counsel's Access to Classified Government
                        Information.

    Bimullah II also attempts to corral the Government
Information, much of which, as the Government's submissions
make clear, is classified, that must be disclosed to the detainees'
counsel by emphasizing the exceptions from disclosure for
information that is "`highly sensitive . . . or . . . pertain[s] to a
highly sensitive source or to anyone other than the detainee.'"
Bimullah II, 503 F.3d at 142 (quoting Bismullah I, 401 F.3d at
187) (alteration in original).4 Bismullah II, however, may be
unrealistically sanguine about the Government's resulting
burden if the presumption is that it must disclose all Government
Information except what fits within the exceptions; according to
the Government's submissions, which, I submit, we are ill-
equipped to second-guess, the exceptions swamp the disclosable
information. Cf. Krikorian v. Dep't of State, 984 F.2d 461, 464

---
    4
     Bismullah I had"presume[d] counsel for a detainee has a `need
to know' all Government Information concerning his client, not just
the portions of the Government Information presented to the
Tribunal." Bismullah I, 501 F.3d at 187 (emphases added).


                                     5

(D.C. Cir. 1993).5 But the alternative is not necessarily limited
to what Bismullah II describes, namely, "the only solution is [for
the Government] to turn over none of [the Government
Information]." Bismullah II, 503 F.3d at 142. If the record on
review is more limited as discussed supra, the detainees'
counsel's access likewise contracts. Again, should we not all
consider this alternative?

    We have heard by unclassified declarations from Michael V.
Hayden, Director of the Central Intelligence Agency; Gordon
England, Deputy Secretary of the Department of Defense; Keith
Alexander, Director of the National Security Agency; Robert
Mueller, Director of the Federal Bureau of Investigation; and J.
Michael McConnell, Director of National Intelligence. We have
heard by Secret declaration from FBI Director Mueller. And we
have heard ex parte and in camera by Top Secret-SCI
declarations from CIA Director Hayden and NSA Director
Alexander.      In the unclassified declarations, the five
officials--charged with safeguarding our country while we are
now at war--have detailed the grave national security concerns
the Bismullah I holding presents. "Without doubt, our
Constitution recognizes that core strategic matters of warmaking
belong in the hands of those who are best positioned and most
politically accountable for making them." Hamdi, 542 U.S. at
531 (citing Dep't of Navy v. Egan, 484 U.S. 518, 530 (1988)
(noting reluctance of courts "to intrude upon the authority of the
Executive in military and national security affairs")). In Hamdi,
the Government represented that "military officers who are
engaged in the serious work of waging battle [will] be

---
    5
     I leave aside this Court's likely burden if we do not consider en
banc the scope of the Government Information disclosable to the
detainees' counsel. As Bismullah II itself notes, "if it is true that most
of the Government Information . . . come[s] within an exception . . .,
the practical effect . . . may yet be that our review . . . is in large part
ex parte." Bismullah II, 503 F.3d at 143 n.7.


                                    6

unnecessarily and dangerously distracted by litigation half a
world away, and discovery into military operations [will] both
intrude on the sensitive secrets of national defense and result in
a futile search for evidence buried under the rubble of war."
Hamdi, 542 U.S. at 531-32. The High Court agreed, declaring
"[t]o the extent that these burdens are triggered by heightened
procedures, they are properly taken into account." Id. at 532. I
believe our Court should likewise take these burdens into
account sitting en banc.6 For the foregoing reasons I dissent
from the denial of rehearing en banc and join Judge Randolph's
dissent.

---
    6
     I note, in granting the detainees' certiorari petition in Boumediene
v. Bush, 476 F.3d 981 (D.C. Cir. 2007), the Supreme Court advised
that "[a]s it would be of material assistance to consult any decision in
Bismullah et al. v Gates, No. 06-1197, . . . supplemental briefing will
be scheduled" once our Court's decision issues. Boumediene v. Bush,
127 S. Ct. 3078 (2007). En banc review would plainly delay our
decision and thus tighten the time frame for the supplemental briefing
the Boumediene parties must submit. Nonetheless we do the Supreme
Court no favor by not fully considering potentially determinative
matters, including these herein discussed. Although, as Chief Judge
Ginsburg lists, Stmt. of Ginsburg, C.J., at 12, we have shuffled much
paper in this case, we have yet to consider--with the benefit of
briefing and oral argument--any of the issues raised by the three
dissents from the en banc denial.


     RANDOLPH, Circuit Judge, with whom Circuit Judges
SENTELLE, HENDERSON and KAVANAUGH join, dissenting from
the denial of rehearing en banc: It has long been my practice not
to write or join opinions on denials of rehearing en banc. See
Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1080
(D.C. Cir. 1992). I must now depart from that practice.
According to affidavits of the Directors of the Central
Intelligence Agency, the Federal Bureau of Investigation, and
the National Security Agency and the Director of National
Intelligence, the court's ruling in these cases endangers national
security. The cases deserve to be reheard and reexamined by the
full court. I therefore dissent from the denial, by a vote of 5 to
5, of rehearing en banc. Here are the reasons.

     The panel opinion denying rehearing asserts that the
agencies just mentioned and the Department of Justice,
including the Solicitor General, do not understand the original
opinion. We think these executive departments understand full
well what the panel ordered. The government must file, as the
"record" in each detainee review case, vast reams of classified
information to be shared presumptively with private defense
counsel, regardless whether any of this information was ever
presented to the Combatant Status Review Tribunal, whose
decision is the subject of judicial review. That order is contrary
to the rule and the statute governing the contents of the record
in cases such as these, it violates the restrictions on our
jurisdiction in the Detainee Treatment Act, and it risks serious
security breaches for no good reason.

     The Detainee Treatment Act does not specify what shall be
in the record when we review Tribunal decisions. This is
understandable because a separate statute governs "the contents
of the record in all proceedings instituted in the courts of appeals
to enjoin, set aside, suspend, modify, or otherwise review or
enforce orders of administrative agencies, boards, commissions,
and officers." 28 U.S.C. § 2112(a). Subsection (b) of this
statute, and Rule 16(a) of the Federal Rules of Appellate


                                    2

Procedure, which is based on it, make crystal clear that ­
contrary to the panel's opinions ­ the record does not include
information never presented to the Combatant Status Review
Tribunal.1 Yet neither of the panel's two opinions even
mentions Rule 16(a) or § 2112(a).2

     Chief Judge Ginsburg, in his opinion concurring in the
denial of rehearing en banc, offers two explanations. The first
is that several other provisions in Title 28 ­ not applicable here
­ differentiate between an "executive agency" and a "military
department." Stmt. of Ginsburg, C.J., at 2-5. While intended to
show that a Combatant Status Review Tribunal is not an

---
     1
      The statute provides that the "record to be filed in the court of
appeals . . . shall consist of the order sought to be reviewed or
enforced, the findings or report upon which it is based, and the
pleadings, evidence, and proceedings before the agency, board,
commission, or officer concerned . . .." 28 U.S.C. § 2112(b) (italics
supplied). Rule 16(a) of the appellate rules states the same. The
government's merits brief not only cited Rule 16 but also discussed
why the record it filed was in compliance with the rule. Respondent
Br. 54-55. That discussion sufficiently alerted the panel not only to
the rule but also to the statute: the Advisory Committee Notes to Rule
16 state that "[s]ubdivision (a) is based upon 28 U.S.C. § 2112(b)."
     2
      The Department of Defense regulation directly on point provides
that the "official record of the Tribunal's decision" shall consist of:
"(a) A statement of the time and place of the hearing, persons present,
and their qualifications; (b) The Tribunal Decision Report cover sheet;
(c) The classified and unclassified reports detailing the findings of fact
upon which the Tribunal decision was based; (d) Copies of all
documentary evidence presented to the Tribunal and summaries of all
witness testimony. If classified material is part of the evidence
submitted or considered by the Tribunal, the report will be properly
marked and handled in accordance with applicable security
regulations; and (e) A dissenting member's summary report, if any."
E-2 §§ (C)(10), (C)(8).


                                  3

"agency" for the purposes of § 2112(b), it indicates the opposite.
In Title 28, "`agency' includes any department, independent
establishment, commission, administration, authority, board or
bureau of the United States . . . unless the context shows that
such term was intended to be used in a more limited sense." 28
U.S.C. § 451. Chief Judge Ginsburg's citations illustrate how
Congress has limited "agency" in other contexts by using
modifiers such as "executive" and "federal." Section 2112(b)
contains no such limit. A military department is a "department"
under § 451, and thus an "agency" under § 2112(b). Therefore,
§ 2112(b) applies to a Combatant Status Review Tribunal, which
certainly falls within the ambit of the broad definition of
"agency" in Title 28. The framers of the Administrative
Procedure Act concluded that military commissions would be
covered as "agencies," unless they were expressly excluded
from the Act. 5 U.S.C. § 551(1)(F).3

---
     3
      The Attorney General's Manual refers to courts martial, military
commissions, and other military authorities as "agencies of the United
States," Attorney General's Manual on the Administrative Procedure
Act 10 (1947), and then explains that they have been "specifically
exempted" from the APA in what is now 5 U.S.C. § 551(1)(F), Id. at
12.

     Chief Judge Ginsburg argues that Combatant Status Review
Tribunals are sui generis and for that reason are exempt from the
requirements of the APA. We agree that the APA exempts Combatant
Status Review Tribunals, but not because they are sui generis.
Instead, the detention of enemy combatants, and the review processes
related to them, are military "functions" the APA specifically exempts.
The writer's opinion in Al Odah v. United States, 321 F.3d 1134, 1149
(D.C. Cir. 2003), attached hereto as an addendum, explains why. In
any event, Chief Judge Ginsburg's argument misses the point. Our
review in this case is controlled not by the APA, but by 28 U.S.C.
§ 2112. The Chief Judge does not explain why the broad, unmodified
term "agency" in § 2112 excludes a Combatant Status Review Tribunal.


                                  4

     The Chief Judge's second explanation for disregarding
§ 2112(b) exposes still another problem with the panel's
reasoning. He writes that to follow § 2112(b)'s law governing
the contents of the record "would be to preclude the court from
discharging the review function assigned to it in the" Detainee
Treatment Act. Stmt. of Ginsburg, C.J., at 5. What exactly is
this "review function"? Apparently the idea is that the court will
look at how well the Recorder did his job in gathering
"Government Information" and how well he culled it in
presenting the information to the Tribunal as "Government
Evidence."4 Id. at 5-9.

---
     4
      Under Defense Department regulations, "Government
Information" is "reasonably available information in the possession of
the U.S. Government bearing on the issue of whether the detainee
meets the criteria to be designated as an enemy combatant." E-1
§ (E)(3). "Government Evidence" is "such evidence in the
Government Information as may be sufficient to support the detainee's
classification as an enemy combatant." E-1 § (H)(4).

     The panel did not seem to appreciate the large difference between
"information" and "evidence."          It stated that "whether the
preponderance of the evidence supported the conclusion of the
Tribunal, cannot be ascertained without consideration of all the
Government Information." Bismullah v. Gates, slip op. at 5
(Bismullah II), citing Bismullah v. Gates, 501 F.3d 178, 186 (D.C. Cir.
2007) (Bismullah I). That rationale could not hold and the Chief Judge
seems to have abandoned it. In legal proceedings before courts and
other adjudicative bodies, the classic definition of "evidence" is "any
matter of fact which is furnished to a legal tribunal otherwise than by
reasoning, as the basis of inference in ascertaining some other matter
of fact." James B. Thayer, Presumptions and the Law of Evidence, 3
HARV. L. REV. 141, 143 (1889). Moreover, the Detainee Treatment
Act, in speaking of a preponderance of the evidence, refers to "the
requirement" that the Tribunal's conclusion be so supported. DTA


                                   5

     Forget for the moment that the Detainee Treatment Act
limits our jurisdiction to review of the Tribunal's status
determination. DTA § 1005(e)(2)(C)(i). Ignore as well that
under the controlling regulations it is the Tribunal, not the court,
who supervises the Recorder. E-1 § (C)(2). Even so the
question remains ­ how does the court's order requiring the
government to assemble a record consisting of all "reasonably
available" information bearing on the detainee's status enable
the court to determine whether the Recorder adequately
performed his job in gathering information? This is an essential
question and neither the panel nor Chief Judge Ginsburg has
ever given a satisfactory answer to it.

     Perhaps the panel envisioned our court examining the
thousands of documents5 making up the "record" on review and
seeing how much of this information escaped the Recorder's
attention. But the government has pointed out the fallacy in that
vision, which contemplates a comparative judgment. The
Recorders, operating before Congress passed the Detainee
Treatment Act, did not save the information they obtained unless
it became part of the permanent record when they presented it to
the Tribunal. So even if this were a proper function for our
court, it is impossible for us to determine whether any particular

---
§ 1005(e)(2)(C)(i). The reference is to Defense Department regulation
E-1 § (G)(11) dealing with the burden of proof. In context it is clear
as a bell that the "evidence" in the regulation and in the Act means the
evidence before the Tribunal, not some pile of information the
Recorder decided not to present. The panel thus erred in saying that
to determine whether there was enough evidence to support the
Tribunal's decision, the court had to look through information the
Tribunal never saw.

     5
      The government predicts that for each detainee, the record
envisioned by the panel will consist of "hundreds of thousands[] of
documents." Pet. for Rehearing 10.


                                6

piece of information was obtained or was not obtained by any
particular Recorder in any particular detainee's case.

     The original panel opinion offered a different rationale than
the one the Chief Judge now proposes. It was that the detainee's
counsel would need to see Government Information "to present
an argument that the Recorder withheld exculpatory
information." Bismullah I, 501 F.3d at 185-86. But the panel's
remedy far outruns this rationale. Even if one accepted the
exculpatory information rationale ­ which would require the
court to disregard § 2112(b) and Rule 16(a) ­ this would at most
lead to a conclusion that the record on review should consist
only of the evidence before the Tribunal plus any exculpatory
information the government has discovered. Yet the panel has
required all information, exculpatory and incriminatory alike,
bearing on the detainee's status to be deposited with the court
and presumptively made available to defense counsel.

     Why? We can be sure that the assembled information
cannot be used in our judicial review of the Tribunal's status
determination. And we can also be sure that its assembly and
filing in this court, and potential sharing with private counsel,
gives rise to a severe risk of a security breach. That is the
position of the agencies charged with protecting the country
against terrorist attacks, who warn that foreign intelligence
services will cease cooperating with the United States if the
panel opinion stands. Their concerns deserve the attention of
the full court on rehearing en banc.

      One final point. Judge Garland votes against en banc, not
because he thinks the case unimportant, but because he believes
it is more important to advance our decision-making in order to
assist the Supreme Court. Stmt. of Garland, J., at 1. We think
that it is more important to decide the case correctly and that a
correct decision would be of more assistance to the High Court.


                                 7

    For the foregoing reasons we dissent from the denial of
rehearing en banc.


                          ADDENDUM

RANDOLPH, Circuit Judge, concurring:

                               ***

     The United States or its officers may be sued only if there
is a waiver of sovereign immunity. See, e.g., Dep't of Army v.
Blue Fox, Inc., 525 U.S. 255, 260 (1999). We have held that the
Alien Tort Act, whatever its meaning, does not itself waive
sovereign immunity. Industria Panificadora, S.A. v. United
States, 957 F.2d 886, 886 (D.C. Cir. 1992) (per curiam);
Sanchez-Espinoza, 770 F.2d at 207; see Canadian Transp. Co.
v. United States, 663 F.2d 1081, 1092 (D.C. Cir. 1980). The
detainees therefore rely on the waiver provision in the
Administrative Procedure Act, 5 U.S.C. § 702, which states:
"An action in a court of the United States seeking relief other
than money damages and stating a claim that an agency or an
officer or employee thereof acted or failed to act in an official
capacity . . . shall not be dismissed . . . on the ground that it is
against the United States . . .."

     Although relying on the APA's waiver for agencies, the
detainees do not identify which "agency" of the United States
they have in mind. They have sued the President in each case,
but the President is not an "agency" under the APA and the
waiver of sovereign immunity thus does not apply to him. See
Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992);
Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). This
leaves the military. The APA specifically excludes from its
definition of "agency" certain functions, among which is


                                 8

"military authority exercised in the field in time of war or in
occupied territory." 5 U.S.C. §§ 551(1)(G), 701(b)(1)(G); see
id. §§ 553(a)(1) & 554(a)(4), exempting military "functions"
from the APA's requirements for rulemaking and adjudication;
United States ex rel. Schonbrun v. Commanding Officer, 403
F.2d 371, 375 n.2 (2d Cir. 1968) (Friendly, J.). The district
court ruled, in an alternative holding, that because of the military
function exclusion, the APA does not waive sovereign
immunity. Rasul v. Bush, 215 F. Supp. 2d 55, 64 n.10 (D.D.C.
2002). I believe this is correct.

       Each of the detainees, according to their pleadings, was
taken into custody by American armed forces "in the field in
time of war." I believe they remain in custody "in the field in
time of war." It is of no moment that they are now thousands of
miles from Afghanistan. Their detention is for a purpose
relating to ongoing military operations and they are being held
at a military base outside the sovereign territory of the United
States. The historical meaning of "in the field" was not
restricted to the field of battle. It applied as well to "organized
camps stationed in remote places where civil courts did not
exist," Kinsella v. United States ex rel. Singleton, 361 U.S. 234,
274 (1960) (Whittaker, J., joined by Stewart, J., concurring in
part and dissenting in part). To allow judicial inquiry into
military decisions after those captured have been moved to a
"safe" location would interfere with military functions in a
manner the APA's exclusion meant to forbid. We acknowledged
as much in Doe v. Sullivan, 938 F.2d 1370, 1380 (D.C. Cir.
1991), when then-Judge Ruth Bader Ginsburg stated for the
court that the APA's military function exclusion applied to cases
in which a court was asked to "review military commands made
. . . in the aftermath of [ ] battle." It is also of no moment that
the detainees were captured without Congress having declared
war against any foreign state. "Time of war," as the APA uses
it, is not so confined. The military actions ordered by the


                                9

President, with the approval of Congress, are continuing; those
military actions are part of the war against the al Qaeda terrorist
network; and those actions constitute "war," not necessarily as
the Constitution uses the word, but as the APA uses it. See
Campbell v. Clinton, 203 F.3d 19, 29-30 (D.C. Cir. 2000)
(Randolph, J., concurring in the judgment); Mitchell v. Laird,
488 F.2d 611, 613 (D.C. Cir. 1973). The detainees are right not
to contest this point. To hold that it is not "war" in the APA
sense when the United States commits its armed forces into
combat without a formal congressional declaration of war would
potentially thrust the judiciary into reviewing military
decision-making in places and times the APA excluded from its
coverage.

                              ***

Al Odah v. United States, 321 F.3d 1134, 1149-50 (D.C. Cir.
2003) (Randolph, J., concurring).

     BROWN, Circuit Judge, dissenting from the denial of
rehearing en banc: I appreciate the panel's efforts to clarify
the Government's production burden in these CSRT reviews.
The panel assumes the phrase "reasonably available"
adequately defines the scope of the record because that phrase
comes from the CSRT regulations. However, because the
record so defined does not arise naturally from the
proceedings, the panel may have left much to litigate. The
Government is clearly uncertain about what information is
"reasonably available," and is searching laboriously through
"all relevant federal agencies" to make sure it gathers at least
that much information. Pet. at 10. The panel has, naturally,
refused to opine on whether the results of such an exhaustive
search are reasonably available, Bismullah v. Gates, 503 F.3d
137, 141 n.3 (D.C. Cir. 2007) (denial of panel rehearing)
(Bismullah II), but it seems to think that too intensive a search
would be unreasonable, see id. at 142. The panel avers that it
did not require "[a] search for information without regard to
whether it is `reasonably available.'" Id. at 141. But reliance
on this sort of verbal formulation may confuse rather than
clarify the obligation.        Using the phrase "reasonably
available" provides not a process-based definition, but an
abstract legal standard. If the Government must populate the
record based on this standard, it will have to conduct a new
search for materials that satisfy it. Under the panel's order,
the record may be congruent with the universe of information
identified by the regulations, but it bears no direct relationship
to the CSRT process--or any process at all. Although the
panel might have been right to reject the Government's offer
of only the record that a CSRT considered, that version of the
record is at least the definite product of a process that actually
happened.1 The likely result of relying on a theoretical record

---
1
  As a corollary, reconvening a CSRT, as the panel proposes,
Bismullah II, 503 F.3d at 141, will only postpone the issue, because
the abstract set of Government Information will have no relation to


                                2

will be continued litigation over the inclusion or exclusion of
various pieces of information, so that any review of the merits
of these cases will be substantially delayed. This would be
fair to neither the Government nor the detainees.

     The denial of rehearing has generated four separate
opinions disputing the proper scope of production; this
continuing debate suggests the court has not yet found the
right paradigm. Although we strain for familiar analogies to
guide us, none of them is apt, because they all miss a central
point: CSRTs are not adversarial proceedings. Detainees are
not represented by advocates, but only by Personal
Representatives whose sole duty is to assist, not defend, them.
Conversely, the Recorders and the CSRTs have an obligation,
under the procedures, to find and examine exculpatory
evidence. That being so, it seems improbable that the
Government need turn over only the Record of Proceedings
compiled after the CSRT, as it originally urged, Bismullah v.
Gates, 501 F.3d 178, 185 (D.C. Cir. 2007) (Bismullah I). On
the other hand, to demand everything means engaging this
court in de novo review of the CSRTs, as the panel
acknowledges. See Bismullah II, 503 F.3d at 139­40. Is such
review what Congress intended when it passed the Detainee
Treatment Act?

     Congress mandated this court to review the CSRTs. An
adversarial appeal from a nonadversarial hearing is an
unfamiliar process in this country, but it is common in other
parts of the world. Indeed, since the military's prisoner-of-
war procedures were developed to implement international
law, Army Reg. 190-8 §§ 1-1(b)(3), 1-6(a) (citing Geneva

that proceeding either. The court will still review whether the
Recorder for the new panel gathered all reasonably available
information. Bismullah I, 501 F.3d at 185; Stmt. of Ginsburg, C.J.,
at 5­6.


                               3

Convention Relative to the Treatment of Prisoners of War
art. 5, Aug. 12, 1949, 6 U.S.T. 3316), it is conceivable that
they were intentionally modeled on traditional inquisitorial
procedures. Many aspects seem similar, including the role of
the Recorder as both judge and investigator. Not only does he
prepare the "official record of the Tribunal's decision,"
Memo. from the Sec'y of the Navy on Implementation of
Combatant Status Review Tribunal Procedures Encl. 2
§ C(10) (July 29, 2004); he also gathers the Government
Information, which includes all "reasonably available
information. . . bearing on. . . whether the detainee" is an
enemy combatant, id. Encl. 1 § E(3), including evidence both
for and against that determination.            Cf. JACQUELINE
HODGSON, FRENCH CRIMINAL JUSTICE 30 (2005)
(investigating magistrate must "gather[] evidence which
might exculpate as well as incriminate the suspect"). Most
important for this case, a civil-law inquisition prepares a well-
defined record for review, consisting of the material that the
magistrate actually gathered. Bron McKillop, Anatomy of a
French Murder Case, 45 AM. J. COMP. L. 527, 544­46
(1997). Naturally, this record contains significantly less
information than what the magistrate could have gathered
because it was available.

     My point is not to hold out continental criminal
procedure as the perfect model for CSRT review, although it
may be the closest (and may actually have been the original)
model for the military's prisoner-of-war tribunals. Nor, of
course, is it a source of law, although it can be a useful source
of ideas given that the military's prisoner-of-war regulations
expressly advert to international law. Nevertheless, this court
could define the record in other ways than the "all" required
by the panel or the "nothing" offered by the Government, and
this definition is one of a set of decisions this court should
make about how we are to conduct this novel form of review.


                           4

I am now convinced we should have begun by discussing the
problems much more thoroughly en banc. Accordingly, I
dissent from the denial of rehearing.

posted by cboldt  # 2/01/2008 03:05:00 PM