Bismullah Ex Rel. Bismullah v. Gates

id., discretion,” had it obtained a “prevailed” dant because attor- Jeppsen award a “material judicial resulting order al- neys’ fees. legal relationship of teration So ordered. 929;

parties,” F.3d at Buckhannon plaintiff prevail held that a does not even

though its action has the defendant caused conduct, change primary its because the

plaintiff thereby “judi- does not obtain a

cially change legal sanctioned in the rela- Buckhannon,

tionship of the parties.” 604-05,

U.S. S.Ct. 1835.

We need not the lists in this enter 514 F.3d 1291 conflict apparent among the circuits or dispute. der to resolve the instant Recall Haji Bismillah, Haji BISMULLAH a/k/a the district court this action for dismissed Haji Besmella, Haji Moham a/k/a jurisdiction holding want after Wali, Haji mad Next Friend of Bis- only that the for declara District’s action mullah, Petitioners tory relief had moot become when year school that the IDEA ended but also v. not create a right did of action GATES, Secretary M. Robert

parent recovery for the of tuition or other Defense, Respondent. monies the expended pri District had for schooling. ruling vate latter was Parhat, al., Huzaifa et Petitioners merits, judgment on the a holding jurisdiction; the court lacked the court v. held the District’s claim failed because it Gates, Defense, Secretary Robert M. contrary

was to the statute.* al., Respondents. et

III. Conclusion Abdusabour, Petitioner Because the dismissal of District’s case, properly understood, was a decision v. merits, on it raises no doubt about the Gates, Secretary M. Robert U.S. jurisdiction district court’s to award attor- Defense, al., Respondents. et neys’ merits, if fees. On the even Buck- Noxell, hwnuou overruled it is clear Abdusemet, Petitioner

Jeppsen “prevailed” has in an “action or proceeding brought under” 1415(i)(3)(B)(i)(I). Accordingly U.S.C. remand the court in case the district Gates, Secretary M. Robert whether, that may

order “in decide its Defense, al., Respondents. et * (he Although argue Animals, Jeppsen does not district dismissal. Fund Inc. U.S. Cf. court Mgmt., dismissed the case on the mer District's Bureau Land n. 4 its, that, (D.C.Cir.2006) (district argue she does because district court's characteriza court held jurisdic the District's claim for reimburse tion of dismissal based APA as failed, "prevailed” ment consequence,” she the district "of ap tional no as court of court; peals may we are bound neither district affirm "dismissal under Rule 12(b)(1) parlies’ pursuant 12(b)(6)”). court's nor characterization of the to Rule Jalaldin, GINSBURG, Judge, and

Jalal Petitioner Before: Chief SENTELLE, HENDERSON,

v. RANDOLPH, ROGERS, TATEL, GARLAND, BROWN, GRIFFITH, and Gates, Secretary Robert M. U.S. KAVANAUGH, Judges. Circuit Defense, al., Respondents. et SENTELLE, Judges Circuit Ali, Khalid Petitioner HENDERSON, RANDOLPH,- BROWN, v. grant and would KAVANAUGH petition rehearing for en banc. Gates, Secretary Robert M. U.S.

Defense, al., A Respondents. separate concurring et statement by of rehearing

denial en banc filed Chief Osman, GINSBURG, Judge Sabir Petitioner with whom Circuit ROGERS, TATEL, Judges join, GRIFFITH is attached. Gates, Secretary Robert M. U.S. separate concurring A statement in the Defense*, al., Respondents. et rehearing by denial of en banc filed Circuit Judge GARLAND is attached. Hammad, Petitioner separate A dissenting statement from rehearing the denial of banc filed en HENDERSON, Judge Circuit with whom Gates, Secretary M. Robert of Defense SENTELLE, Judges Circuit Davis, Colonel, USA, F. Wade RANDOLPH, join, and KAVANAUGH Respondents. attached. 06-1197, 06-1397, 07-1508, 07-1509, Nos. separate A statement from dissenting 07-1510, 07-1511, 07-1512, 07-1523. rehearing denial banc filed RANDOLPH, Judge Circuit with whom Appeals,

United States Court of SENTELLE, Judges Circuit District of Columbia Circuit. HENDERSON, join, and KAVANAUGH

Feb. is attached.

A separate dissenting statement from denial rehearing en banc filed Circuit BROWN is attached. Barnaby Missing, John Debevoise & LLP, ORDER DC,

Plimpton, Washington, Jennifer Cowan, Jeffrey Lang, Rose Ira Jill Van PER CURIAM. Berg, LLP, Plimpton Debevoise & New Respondents’ petition for eh York, NY, for Petitioners. response and the banc thereto were circu- Loeb, Letter, court, Mark N. Douglas Robert lated to the full and a vote was Counsel, Litigation Thereafter, August requested. majority Edward of the Cohn, Flentje, Jonathan Fredrick judges eligible participate Peter did not vote Keisler, Douglas Gregory Katsas, George petition. Upon in favor of the consider- Justice, ation Department Washington, foregoing and the motion to DC, Respondents. petition expedite review for rehear- Treatment any subsequent proceed- jurisdiction en banc and our the Detainee (DTA), 109-148,

ings; the motion for leave to file ex Act Pub.L. No. [ (Dec. 1005(e)(2), top camera 119 Stat. parte/in secret-SCI declara- 2005) (codified judges’ joint tions for and the as amended at 10 U.S.C. thereto; filed opposition note) letters ], security and it risks serious Stmt, Pro- pursuant Appellate to Federal Rule of good breaches for no reason.” 28(j), it cedure J., at Randolph, Judge 1302. Like Ran- ordinarily a dolph, sepa- would not write petition ORDERED that the for rehear- rehearing on a opinion rate denial of en ing en banc be denied. It is banc, suggestion panel’s but his that the FURTHER ORDERED that the mo- only not but decision was erroneous also It expedite tion to be dismissed as moot. dangerous go should not unremarked. Judge Randolph that 28 contends U.S.C. ORDERED that FURTHER the mo- 2112(b) § and Federal Rule of Appellate for to file parte/in top tion leave ex camera 16(a), implements Procedure which judges’ for secret-SCI declarations review 2112(b), § crystal “make ... clear that only granted. record does not include information never GINSBURG, Judge, presented to the Status Chief with whom Combatant Review Stmt, ROGERS, TATEL, (CSRT).1 Judges J., Circuit and Tribunal” Randolph, join, concurring 2112(b) GRIFFITH in the denial at 1303. Section states: “The rec en banc: ord appeals to be filed the court of sought shall consist of the order to be panel that heard this case held that enforced, findings or reviewed re “the record on must include all the review based, port upon plead which it is and Information,” which the con- evidence, ings, proceedings and before the trolling Regulations DoD define as “rea- board, agency, commission, or officer con sonably pos- available information R.App. 16(a). cerned.” Accord Fed. P. bearing session of the on U.S. Government turn, “agency,” The term “includes issue of whether the detainee meets department, independent establishment, designated the criteria to be an commission, administration, authority, (Bismul- combatant.” Bismullah v. Gates board or bureau of the States ... United II), (D.C.Cir. lah 503 F.3d 138-39 the context unless shows that such term (Bismullah 2007); I), Bismullah v. Gates was intended to be used in a more limited (D.C.Cir.2007); 501 F.3d E-l § E(3). Judge sense.” 28 U.S.C. 451. Ran § In his dissent from the court’s 2112(b) banc, dolph § that applies asserts to our denial of rehearing Ran- pursuant to the DTA of a dolph says panel’s ruling that it “is review CSRT’s contrary status determination a gov- to the rule and the statute because CSRT is military erning department the contents of the record in cases within a and a “mili these, tary department such as it the restrictions on ‘department’ violates is a under C(8)), Judge Randolph implies panel ig- (citing expressly reject- § 1. at also E-2 provisions Regulations nored the of the DoD ed the Government’s contention that the Rec- Proceedings” that define the "Record be- Proceedings ord of constitutes the record on CSRT, C(8) (10). § namely, E-2 fore & panel’s review for reasons stated in the two fact, epitomized E-2 both I, opinions. See Bismullah 184- C(8) C(I0), § §E-2 and see Bismullah 86; II, 503 F.3d at 139-41. 182; F.3d at see also Bismullah sions, martial implies APA that courts under ‘agency’ § thus an and 2112(b).” J., agencies at 1303. ex- Randolph, military commissions are excluded”; because “expressly cept where 2112(b) define the rec does not Section APA, express- unlike the does Title proceeding be on of a CSRT ord military com- martial and ly exclude courts an military department is not cause a courts martial scope, missions from its § 451. Several agency under 28 U.S.C. presumably military commissions distinguish between provisions of Title title, includ- agencies purposes “military department,” “agency” and a necessarily implies 451 and See 28 department agency. is not an nothing about reasoning This tells us 530D(e) (“executive agencies U.S.C. however, a court CSRT, unless a CSRT is 28 U.S.C. military departments”); commission, it military which martial or 530C(b)(L)(iv) (“executive agency § or mil § 802 assuredly not. See 10 U.S.C. is 530D(d) § 28 itary department”); U.S.C. court mar persons subject to (specifying (“executive military depart or agency tial); jurisdiction § (defining 10 817 U.S.C. ment”); § (defining 28 2671 U.S.C. cf. martial); §§ of court U.S.C. agency” specifically to include “[flederal offenses that (enumerating substantive purposes for of military departments” “the martial); may be tried before a court see certain sections of Title 28 that have no 948b(f) § (defining “military 10 U.S.C. 2112).2 § bearing upon 948d(c) (distin commission”); § 10 U.S.C. provi- Judge Randolph dismisses these CSRT); from guishing military commission in ground sions on the them the term 1005(e)(2)(“Review § of de compare DTA always by “agency” is modified “executive” cisions of combatant status review tribu “federal,” suggests a more limit- detention”) DTA propriety nals of of with in conception “agency” ed of there than 1005(e)(3) (“Review § of final decisions of § it modifica- appears where without commissions”).3 military coming Not with Stmt, J., Randolph, tion. of at 1303. For APA, therefore, any exclusion from confirmation, § points he 2 of the Ad- subject agency must be either an CSRT Act, 5 ministrative Procedure U.S.C. or, is, something the APA it as believe 551(1)(F), § mar- which excludes “courts generis contemplation s« and outside military tial and commissions” from the agency of the APA. If a CSRT were an “agency” purposes definition of for of Stmt, APA, subject to the then the detainees at J., n. Randolph, Act. at 1303 & 3. presumably Guantánamo be entitled would Judge Randolph by seems to believe that rights significant procedural to the afford defining “agency” broadly and then exclud- APA. The notion that a is military courts martial and commis- ed CSRT fact, Hosps. Casey, “military authority the exclusion is for 2. See W. Va. Univ. 100-01, 83, 88-92, 111 S.Ct. field in time of war or in exercised (1991) (holding “attorney’s fees" L.Ed.2d 68 551(1)(G). § occupied territory." 5 U.S.C. “expert purposes fees” distinct for Citing concurring opinion his in Al Odah own § ... the one in- ”[i]f U.S.C. 1988 because States, United other, referring cludes the dozens of statutes (D.C.Cir.2003), argues Judge Randolph inexplicable separately to the two become military authority exercised in the CSRT is a redundancy"). exercise in Stmt, J., Randolph, field in a time of war. and, n. No has ever so held at 1303 3. court says Randolph 5 U.S.C. 551 also § event, any suggested parly to this case has no military expressly authori- excludes "other J., Randolph, at 1303 n. 3. In as much. ties.” subject themselves, APA completely require to the inconsis the Recorder to obtain Congress’ understanding tent with Information, all the Government E-l when, DTA, by enacting the it ratified C(2); C(l), § §E-2 to cull from the Gov procedural framework CSRTs estab ernment Information and forward to the Regulations. lished the DoD In sum Tribunal such information “as be suf mary, a can be structured as it CSRT ficient to support detainee’s classifica only under the DoD Regulations because tion as an combatant” together with martial, a court is not not a com exculpatory information, H(4); § all E-l mission, agency:4 and not an , B(l) C(6), E-2 and to share all the It would be particularly untoward to Government Information with the detain 2112(b) apply apparent outside its field F(8); ee’s Representative, Personal E-l application particularly improba- —and C(4). §E-2 In order to review whether Congress ble the so intended —when performed tasks, the Recorder these result preclude would be to the court from obviously court must see all the Govern discharging assigned the review function ment Information.5 See Bismullah to it in DTA. That function is 185-86; F.3d at 503 F.3d at Judge Randolph broader than suggests. Further, 139-40. the court will be able to The DTA charges reviewing the court with assess whether failure the Record “whether conclusion perform er to these tasks affected the the supported by prepon- Tribunal a [was] weight of the evidence before the CSRT evidence,” derance of the but also whether only if the court can consider that failure was reached a manner “consistent in light of all the procedures speci- with the standards and information the Recorder by Secretary fied supposed Defense” for was to collect and forward. See 1005(e)(2)(C). §DTA CSRTs. 185-86; Bismullah 501 F.3d at Bismul II, lah 503 F.3d at Irrespective, 139-40. Regulations, The DoD which establish therefore, might say what procedures” “standards and to fol be Recorder, general by scope about the lowed the detainee’s Per a record on Representative, sonal review, the CSRTs the DTA requires that the record course, denied;" 4. Of if a CSRT summarily were a court martial or people "preparing die commission, military a then the detainees materials for use the CSRT board members greater procedural rights would be entitled to they did not know whether had examined all than-they Regulations. have under the DoD why they pos available information or even (defining proce- §§ See 10 U.S.C. 830-876b pieces sessed some of information but not martial); 948q- dures for court 10 U.S.C. others;" Recorder, and "the case writer or 950j (defining procedures com- proper experience giv without or a basis for mission). information, rejected context to often arbitrarily some accepting information while suggests 5. The record before the court any other information without ra articulable always Recorder has not fulfilled his obli tionale"); McGarrah, Deck of James M. Rear gations Regulations. under the DoD See (Ret.), ¶¶ 4-6, Navy Admiral (May U.S. Abraham, Stephen Decl. of Lieutenant Colo 31, 2007) (stating September that after nel, (June Army Reserve V1I5-19 "personally 2004 the Recorder did not col 2007) (stating comprising "the information ] Government Information” and that lect! Government Information and the Govern the Recorder withheld from the Tribunal ex compiled personally ment Evidence was not Recorder;" culpatory Government if in Information his by the CSRT "on a number "duplicative" view it was request or "if it did not originating occasions” his that an agency specific allegation relate provide being "a to a written statement made detainee"). exculpatory there was no evidence ... [was] to represent determina- a statement on review of a CSRT’s status confirm members upon by Informa- relied the CSRT board tion include all the Government organiza- tion, [originating intelligence] that the regardless put whether it was all did informa- possess ‘exculpatory tions before the Tribunal. relating tion’ to were] who [detainees Judge Randolph lodges pragmatic two CSRT, subject ... not] could [I First, objections analysis. to this he ar conclusion ... without reach a [such] gues “it impossible is for us to determine information, knowing that I had seen all piece of informa particular told that information I] was never [but tion obtained was obtained was not originat- me provided [to that was any particular particular Recorder in any ing organizations] all available constituted detainee’s case” because “Recorders ... information”). they did not save the information obtained One impute need not the Recorder they unless” forwarded it “to Tribu Stmt, negligence much less bad faith to see that J., nal.” Randolph, at 1304. requires the DTA the court to his review Randolph why correct—which Regulations. adherence to DoD Be- held Government could ei Regulations cause the DoD to the assign ther “reassemble the Infor pro- role in Recorder central the CSRT mation it or ... did collect convene new cess, ignore the actions of the Record- CSRT.” at 141-42.6 ignore evidence especially er—and Second, Judge Randolph argues “at not put the Recorder did before the Tribu- most the record on should con- utterly meaningless ju- nal—would render sist of the evidence the Tribu- before dicial review intended to ensure that status plus any nal exculpatory information the made determinations are “consistent with” government has discovered.” Regulations. DoD DTA the J., course, Randolph, at 1305. Of the Re- 1005(e)(2)(C). § Unlike the final decision corder is to all the supposed forward ex- agency pro- rendered a criminal or an culpatory Information to the Government ceeding, product an open which is of H(4); B(l), §§ Tribunal. E-l E-2 See process indepen- and adversarial before an C(6). But the court is no more able than decisionmaker, a dent CSRT’s status de- the CSRT itself to determine whether product necessarily of termination is the a Recorder exculpatory withheld Gov- process closed and in which accusatorial ernment Information from CSRT—un- seeking the detainee have had review will less, is, subject that to the national securi- little or no access to the evidence ty below, may limitations discussed counsel Tribunal, presented Recorder to the little see and the attention the court to draw ability gather evidence, right to his no own any arguably exculpatory In- him, Government to confront the and witnesses put formation lawyer case, the Recorder did not before him help prepare no to his See Decl. Stephen Tribunal. Abra- and which the decisionmaker is em- ham, Colonel, Army Lieutenant Re- and accus- ployed chosen detainee’s (June ¶¶ (“asked 2007) A, B, C(l), C(3), E(2), serve to er. See E-l son, reportedly Hearings May 6. The Government is now "re New Detention Be Consid view[ing] ered, new ... whether to conduct hear (quoting Capt. N.Y. Oct. Times, may ings” out of concern that it not have Jr.), Fessel, http://www. Theodore available at everything into when “take[ii] consideration nytimes.com/2007/10/14/us/1 4cnd-gitmo.html. original” did the Glaber [it] CSRTs. William designa H(7).7 ‘enemy combatant’ G(9), supporting the G(2), G(8), As a E(4), F, Stmt, J., to result, Henderson, failure to adhere at 1300. the Recorder’s tion?” the out can influence Regulations the DoD however, is not question, The critical degree a that a to proceeding come of court for the possible it is can staff member agency or an prosecutor based of a CSRT the determination review matter, the Recorder not; practical aas before that was solely upon the evidence For this court may control the outcome. CSRT, be the but whether would proceed be to reality would ignore meaningful review the Con presumably judicial though Congress envisioned pano that a prescribed. Note also gress it mere charade when enacted as a statutory protec ply of constitutional Thus, analogy Judge DTA. person imprisoned ensures that a tions our review Henderson draws between hearing receive probable after a cause will DTA under the status determinations convicted or re speedy a trial and be decisions, agency our review of leased, of an thereby mitigating impact 1300-01, Henderson, J., inapt. predi cause finding probable erroneous comparison of sta Judge Henderson’s possibly one-sided cated limited before a proceeding tus determination contrast, the determination evidence. hearing for a probable to a cause CSRT of a a determination CSRT is likewise wide criminal defendant as an combatant.8 detainee’s status asks, can determine She “If we mark. Thereafter, pre nothing it be that of the evidence preponderance whether the holding from vents finding suffi supports probable cause the duration of the enemy combatant “for for trial cient to hold an arrestee without Rumsfeld, Hamdi v. relevant conflict.” (much less, knowing reviewing) all the evi 507, 518-21, 124 S.Ct. can prosecutor’s possession, in the dence (2004)9; L.Ed.2d see Boumediene reviewing the evidence not do so gitmo.html, given l/us/naüonalspecial3/01 obviously ac- The detainee cannot be that, suggests portion of the Govern- if the Government intends cess to the classified remaining The detainee's Personal holding ment Information. 225 detain- continue lawyer Representative, ees, "neither a nor who is solely upon to do so the basis of intends D, advocate," E-3 is not detainee's] [the their status determinations. obligated "may to but share unclassified portion Information with of the Government question Supreme open left the 9.The Court G(8), FI(7). F(8), § § E-l the detainee.” may subject an ene- whether the Government perpetual my "indefinite or combatant to an enemy Regulations define an com- 8. The DoD 521, Hamdi, 124 U.S. at detention.” 542 part who of or as "an individual was batant ("[W]e Congress' grant understand S.Ct. 2633 forces, Qaida or supporting Taliban or al as- authority ‘necessary appro- for use of of engaged in hostilities sociated forces that are authority priate to detain force' to include the part- its coalition the United States or conflict, of the relevant for the duration B; Rumsfeld, § E-l see also Hamdi ners.” longstanding understanding is based on our 2633, 507, 518, 124 S.Ct. 159 principles. practical If the cir- law-of-war (2004): purpose of deten- L.Ed.2d 578 "The entirely given cumstances of a conflict prevent captured individuals from is to tion informed the unlike those of the conflicts that taking up returning field battle and to the of war, development of the law of that under- report- again.” arms once The Government standing may But that is not the unravel. try eventually many 80 edly ”hope[s] to as as date.”) (quoting Guantánamo,” situation we face as of this Wil- the detainees at of 305 Force, Military Glaberson, for Use of Authorization Witness Names to Be With- liam 224, 107-40, 2(a), Detainee, 224 115 Stat. Pub.L. No. Dec. From N.Y. held Times, http://www.nytimes.com/2007/12/ (2001)). at available

389 (D.C.Cir.2007) Bush, safeguard security, then ficient to national Defense, enemy Secretary to the (holding detained as combat- the of whom alien Bay establishing has no for assigns ant at Guantánamo constitu- DTA responsibility right corpus), of habeas cert. govern tional to writ that procedures the standards and — U.S.-, S.Ct. granted, CSRTs, 168 may Regulations. DoD revise the 06-1195). (2007)(No. L.Ed.2d 755 panel’s “reli- Judge Brown criticizes Finally, Randolph raises con- Judge “reasonably avail- ance” the term that Government Infor- “sharing cern [the process- not a “provides able” because it give[] counsel private mation] [will] with definition, legal but an abstract based security rise to a risk of a breach.” Stmt, severe Brown, J., at 1307. standard.” J., at 1305. Randolph, panel, The however, panel, The did invent the however, accommodated, full extent standard; “reasonably it is available” Government, its requested by position Regula- DoD controlling feature of that types certain Government Informa- Further, “reasonably tions. available” petitioners’ tion disclosed to the cannot be open-ended Judge standard is not as as jeopardizing national counsel without secu- suggests, part important Brown be- rity. “provided], just as the panel cause, just noted, security national as may that urged, Government withhold classified informa- agencies withhold any from the counsel petitioners’ Govern- Recorder, thereby rendering from the tion that is either ‘highly ment Information reasonably it “not available.” information, pertain[s] sensitive to a closing, Supreme I note that highly anyone or to sensitive source other Court, in the a writ granting order ” detainee,’ long than the as the as Govern- Boumediene, that certiorari stated “it ment makes the withheld information be of to consult would material assistance available the court for review in cam- court in by decision” reached this Bis- II, at (quot- era. Bismullah Judge contends mullah. Henderson 187). I, F.3d at Bismullah Supreme do the no “we Court favor that, panel under also stressed the DoD “ fully potentially considering determinative Regulations, posses- ‘information Stmt, Henderson, J., at matters.” sion of on bearing the U.S. Government argument, n. After briefing, 6. merits oral issue meets detainee (in opinion Judge an which panel designated the criteria to be as an joined), Henderson petition combatant’ comes definition of within thereto, response petitioners’ and a Information if it is ‘rea- pursuant filed post-argument letter sonably Bismullah available.’” 28(j) FRAP and the Government’s re- E(3)); (quoting F.3d E-l also see thereto, opinion sponse supplemental and a And, 501 F.3d at (in Henderson observed, the panel “originating (cid:127) joined), no doubt again there can be agency” may, pursuant Regu- to the DoD parties’ the issues in the presented all lations, to authorize [classified “decline[] been aired procedural motions have process,” in for use the CSRT information] fully considered. presumably for reasons of national securi- in ty, which case that classified information GARLAND, concurring Judge, Circuit reasonably is deemed “not available” and rehearing in the denial of en banc: Informa- accordingly is 29, II, D(2); Supreme tion. Bismullah On June Court E-l see options petition F.3d at 142-43. If these are insuf- for certio- granted detainees’ Bush, rari in Boumediene 476 F.3d 981 charge given to our entire Court to hear (D.C.Cir.2007). granting petition, In and weigh all fairly encompassed issues parties Court advised the that “it determining validity of the CSRT’s would be of material assistance to consult Granted, decision. we are now at the al, Bismullah, any Gates, decision in et preliminary stage determination, of that ... currently pending in the United States is, resolving procedural motions. Appeals Court of for the District of Colum however, respects, two I am convinced that Circuit,” bia “supplemental and that brief our entire Court should hear aiid consider ing wall be scheduled the issuance of protective order which both sides have any decision” that case. Boumedieue v. asked us to enter. Accordingly, I dissent — Bush, ——, 127 S.Ct. 168 from the en banc denial.1 (2007). L.Ed.2d Supreme Court heard oral argument in Boumedieue on I. Scope of the Record on Review. December 2007. Were we to grant en Bismullah II attempts to correct Bismullah, banc review in plain we would overreading Government’s of Bisnmllah ly delay our decision and hence the Su description Ts of the record by, on review preme disposition Court’s of Boumedieue. first, repeating panel’s reading of the

As delaying contrary the latter is to the (defined Government Information by DoD interests of all of parties, as well as to E(3)) Regulation E-l including only interest, public I concur in the denial “reasonably information available” (again, en banc reaching without specified E(3)) by DoD Regulation §E-l merits. and, then, by concluding that “information regard without to whether it is ‘reasonably HENDERSON,

KAREN LECRAFT clearly available’ is required by Bis Judge, Circuit with whom Circuit Judges mullah I.” Bismullah 503 F.3d at 141. SENTELLE, RANDOLPH, and II, however, leaves intact the join, dissenting KAVANAUGH from the panel’s original conclusion that “whether denial of rehearing en banc: the preponderance of the sup evidence The Detainee Treatment Act of 2005 ported the Tribunal, conclusion of the can (DTA) gives jurisdiction exclusive to this not be ascertained without consideration of Court “to validity determine the of any all the Government Information.” Id. at final decision of [the] Combatant Status 140 (citing Bismullah 501 F.3d at 185- Review Tribunal that an alien properly 86.) detained anas combatant.” Pub.L. § 1005(e)(2)(A), No. 109-148 Why 119 Stat. we are unable to otherwise conduct (Dec. 2005). our While DTA limited validity unexp unique is not respect, this to me our CSRT’s decision is left largely jurisdiction exclusive underscores But in the criminal context- lained.2 that, I note as member of the whose be,, determinative and should at least 20, 2007, original opinion July issued on weighed Bis heard and all of us. Gates, (D.C.Cir.2007) mullah v. 501 F.3d 178 (Bismullah I), opinion denying and whose 2. Bismullah I does note that "the court can- not, us, petition panel rehearing Government's charges is as the DTA consider whether 3, 2007, Gates, sued on preponderance October Bismullah v. supports of the evidence (D.C.Cir.2007) (Bismullah II), 503 F.3d 137 Tribunal's status determination without see- Nevertheless, joined opinions. evidence, both as sot all the more than one can hereinbelow, forth matters remain that were tell whether a fraction is more or less than unaddressed at the level—matters that looking only one half at the numerator and

391 protections dally given the accorded the arres the the showing where is, greater tee are and our review accord has made both its unclassified and ex ingly, searehing-our plainly more Court is parte and in camera submissions? Bis able to the of preliminary conduct mullah 503 F.3d at 138 n. 1. hearing knowing without all the evidence agen Even if we use the administrative reason, prosecution gathered. has cy instead, analogy Supreme Court has course, preliminary is that the hearing made clear that we have no license to Burnett, in scope. is limited v. Coleman consisting “create” a record of more than (D.C.Cir.1973) (“The 1187, 477 F.2d 1201 agency v. Camp itself had before it. preliminary hearing is not a minitrial of Pitts, 142, 1241, 138, 411 U.S. 93 S.Ct. the issue of ‘A guilt, preliminary hear (1973) (“[t]he point L.Ed.2d 106 focal

ing,’ Supreme said, Court has ‘is ordi judicial review should be the administra narily a much searching exploration less existence, tive already record not some trial, into the merits of a than a ease initially reviewing new record made in the simply because its function is more court.”); Labor, Doraiswamy Sec’y limited determining proba one of whether (“This (D.C.Cir.1976) 832, ble cause exists to hold the accused for ” circumscription [that review confined (quoting Page, trial.’ Barber v. 390 U.S. record], the administrative which 719, 725, 1318, 88 S.Ct. 20 L.Ed.2d 255 consistently Court has in other honored (1968))). So too is the CSRT’s mission: cases, stems from ingrained well charac is, at this stage, simply must decide process. teristics of the administrative the detainee whether is an combat statutorily The administrative function is he, ant. if Only presumably, he is one can committed to the agency, judiciary. not the then be held for trial before A reviewing supplant court is not to commission. If can determine agency on aspects the administrative preponderance sup evidence litigation.... grounds upon ports a probable finding cause sufficient to judged administrative order must be hold an knowing arrestee for trial without are (much those which the record discloses less, reviewing) all the evidence in ....”) (internal that its action was based prosecutor’s possession, can we not do citations, quotations and footnotes omit so in reviewing supporting the evidence ted); “enemy Hosp. Walter O. Boswell Mem’l designation?3 combatant” Heckler, (D.C.Cir.1984) 788, And should not all of hear us least arguments against, for and especially (explaining that the record for the review the national security espe ing context? And court is limited to “that information up not at the again.” (citing Naqvi, denominator.” Bistmullah arms once Id. Status, F.3d at 186. Doubtful Prisoner-of-War 84 Int’l 571, (2002) (‘‘[C]aptivity Rev. Red Cross 3. A detainee is not a criminal defendant. revenge, in war punishment, is ‘neither nor capture "The and detention of lawful combat- solely protective custody, only purpose but detention, capture, ants and trial of prevent prisoners of which is to of war combatants, by agreement unlawful 'universal " participation (quot- from further in the war’ practice,' ‘important incidentls] of " Tribunal, Nuremberg Military decision of Rumsfeld, war.' Hamdi v. 542 U.S. reprinted in 41 Am. J. Int'l L. (2004) 124 S.Ct. 159 L.Ed.2d 578 (1947))); Winthrop, Military W. Law and Quirin, 1, 28, 30, (quoting parte Ex (rev.2d 1920) (“ prison- Precedents 788 ed. ‘A (1942)). purpose 63 S.Ct. 87 L.Ed. "The convict; imprisonment er of war is no his is a prevent captured of detention is to individuals " (citations omitted))). simple war measure’ returning taking from to the field of battle and 392 II, F.3d at 142. If the record on [agency]

before the at the time lah 503 [its] decision, excluding post sup- ... thus ex supra, review is more limited as discussed by plementation of the record either the detainees’ counsel’s access likewise side.”); Mail Ass’n Am. v. U.S. Order Again, contracts. should not all con we (D.C.Cir. Serv., Postal this sider alternative? 1993) (same). Again, not at should we have heard unclassified declara- We weigh arguments least hear and Hayden, from Director of tions Michael Y. security in the national con- Intelligence Agency; the Central Gordon text? England, Deputy Secretary Depart- of the Defense; Alexander, ment of Keith Di- II. Detainees’ Counsel’s Access Security Agency; rector of the National to Classified Government Mueller, Robert Director Federal Information. Investigation; Bureau of and J. Michael II also to corral the attempts Bismullah McConnell, Director of National Intelli- Information, which, much of Government gence. declara- We have heard Secret make Government’s submissions tion from FBI Director Mueller. And we classified, clear, is that must be disclosed parte have heard ex and in camera by emphasizing to the detainees’ counsel Top from SeereWSCI declarations CIA exceptions from disclosure for informa “ Hayden Director and NSA Director Alex- ... ... ‘highly tion that is sensitive declarations, ander. In the unclassified highly pertain[s] to a sensitive source or to ” charged safeguard- the five with officials— anyone other than the detainee.’ Bis country our while we now II, (quoting mullah 503 F.3d at 142 Bis grave war—have detailed the national se- I, 187) (alteration mullah 501 F.3d at in curity holding concerns the Bismullah I II, however, original).4 be doubt, presents. “Without our Constitu- unrealistically sanguine about the Govern tion recognizes strategic that core matters resulting presumption ment’s burden if the in warmaking belong the hands of is that it must disclose all Government positioned those who are best and most except Information what fits within the politically making accountable for them.” exceptions; according to the Government’s Hamdi, 542 U.S. at S.Ct. which, submissions, submit, are ill- (citing Dep’t Navy Egan, equipped second-guess, exceptions 518, 530, S.Ct. L.Ed.2d 918 swamp the disclosable information. Cf. (1988) in- (noting reluctance of courts “to State, Dep’t Krikorian v. (D.C.Cir.1993).5 authority trude of the Executive But the alternative affairs”)). national security necessarily limited to what Bismullah Hamdi, describes, represented the Government namely, II “the solution is “military engaged to turn none of officers who are [for Government] over waging Government Bismul the serious battle [the Information].” [will] work "presume[d] 4. Bismullah I had counsel for a Information disclosable to the detainee has a ‘need to know' all Government detainees' counsel. II As Bismullah itself client, concerning just Information his notes, "if it is true that most of the Govern- portions pre- of the Government Information ... ment Information within an ex- come[s] sented to the Tribunal.” Bismullah ..., ception practical may yet effect added). (emphases F.3d at 187 large part be that review ... our ex parte." Bismullah 503 F.3d at 143 n. 7. likely if I leave aside this Court’s burden we scope do not consider en banc the are the rehearing en banc. Here to of dangerously distracted unnecessarily and away, and dis reasons. litigation half world operations both covery [will] into denying rehearing as- panel opinion of national secrets intrude on sensitive and agencies just mentioned serts that the in a futile search and result defense Justice, including the of Department of under the rubble war.” evidence buried General, not understand do Solicitor 531-32, Hamdi, at S.Ct. think these executive original opinion. We declaring High agreed, 2633. The Court full well what departments understand these burdens are the extent “[t]o file, must government panel ordered. procedures, they by heightened triggered detainee review the “record” each account.” Id. at taken into properly case, of information vast reams classified I our 2633. believe Court S.Ct. private presumptively to be shared with into take these burdens should likewise counsel, any of regardless defense forego For the sitting account en banc.6 to the presented this information was ever from the denial of reasons I dissent Tribunal, Status Review whose Combatant join Judge Ran rehearing en banc and subject judicial of review. decision is the dolph’s dissent. contrary to the rule and the That order is rec- the contents of the governing statute RANDOLPH, Judge, with whom Circuit these, it in cases such as violates ord SENTELLE, Judges Circuit in the De- jurisdiction restrictions on our join, HENDERSON KAVANAUGH Act, and it risks serious tainee Treatment rehearing en dissenting from the denial security good breaches for no reason. banc: Act does not not to The Detainee Treatment long my practice It has been write in the record specify en what shall be when join opinions or on denials Am,., Tribunal This is un- Agents Inc. decisions. Indep. banc. See Ins. (D.C.Cir. Clarke, separate derstandable because a statute v. 1992). record in all governs “the contents of the depart prac- I must from that now ap- Di- in the courts of According proceedings to affidavits of the instituted tice. aside, modify, enjoin, suspend, set Intelligence Agency, peals rectors Central orders of review or enforce Investigation, the Federal Bureau of otherwise boards, agencies, Di- commis- Security Agency National and the administrative 2112(a). sions, and officers.” 28 U.S.C. Intelligence, of National the court’s rector (b) statute, Rule of this endangers in these cases national Subsection ruling 16(a) Appellate of the Federal Rules security. The cases deserve to be reheard Procedure, it, based on make by the full court. I there- which is and reexamined panel’s denial, crystal contrary clear from the a vote of 5 fore dissent that — note, briefing parties plemental the Boumediene granting the detainees' certiorari Bush, Nonetheless we do the Su- v. 476 F.3d 981 must submit. petition in Boumediene considering (D.C.Cir.2007), fully Supreme preme Court no favor Court advised matters, including potentially determinative it would be of material assistance "[a]s Although, as Chief any these herein discussed. decision Bismullah et al. consult C.J., lists, Gates, 06-1197, Ginsburg Ginsburg, briefing Judge supplemental No. paper in this we have shuffled much once our Court’s decision will be scheduled” - Bush, -, case, yet the bene- we have to consider —with issues. Boumediene (2007). briefing argument and oral En fit of 127 S.Ct. 168 L.Ed.2d 755 — by the three dissents from plainly delay decision issues raised review would our banc sup- denial. tighten time frame for the banc and thus opinions record does not include in shows that such term was intended to be —the presented formation never to the Combat used in a more limited sense.” 28 U.S.C. ant Status Tribunal.1 Yet neither §451. Review Chief Ginsburg’s citations panel’s opinions two even mentions Congress illustrate how has “agen limited 16(a) 2112(a).2 § cy” Rule or in other by using contexts modifiers such as “executive” and “federal.” Section in Judge Ginsburg, opinion Chief his 2112(b) contains no such limit. military A in concurring the denial of department is “department” a under banc, explanations. offers The first two is § and “agency” thus an under that provisions several other in Title 28— 2112(b). 2112(b) Therefore, § § applies to applicable here —differentiate between Tribunal, Combatant Status Review an agency” “military “executive and a de certainly Stmt, falls within the ambit of partment.” C.J., Ginsburg, the broad “agency” definition of in Title 1294. While intended to show that a Com 28. The framers of the Administrative batant Status Review Tribunal is not an Procedure Act concluded that military “agency” 2112(b), § purposes the it commissions would be as “agen covered opposite. indicates the In Title “ cies,” they unless expressly were excluded ‘agency’ any department, includes inde 551(1)(F).3 § from the Act. 5 U.S.C. establishment, commission, pendent ad ministration, authority, board or bureau of The Judge’s Chief explanation second 2112(b) the United States unless the for disregarding § context exposes still an- provides 1. The statute that the "record to be handled in applicable accordance with securi- appeals (e) filed in the court ty regulations; ... shall dissenting consist and A member’s sought (C)(10), of the order to be summary report, any.” reviewed or en- if E-2 forced, (C)(8). findings report upon the which it is based, evidence, pleadings, pro- and the and board, ceedings agency, Attorney the commis- 3. The General's Manual refers to before sion, martial, commissions, or officer concerned...." military 28 U.S.C. courts 2112(b) (italics 16(a) § supplied). military "agencies Rule other authorities as States,” appellate govern- the Attorney rules states same. The United General's Manual on (1947), only ment's merits brief not cited Rule 16 but Administrative Procedure Act why explains and then they "specif also discussed record it filed was in have been compliance ically exempted” from the in Respondent with the rule. APA what now Br. 551(1)(F), § 5 U.S.C. id. at sufficiently 54-55. That discussion 12. alerted panel to the rule but also to the Judge Ginsburg argues Chief that Combat- Advisory statute: Committee Notes to ant generis Status Review Tribunals are sui "[sjubdivision (a) Rule 16 state that is based exempt for that reason are from the re- 2112(b).” upon § 28 U.S.C. quirements agree of the APA.We that the APA Tribunals, exempts Combatant Status Review Department 2. regulation of Defense di- Instead, they generis. but not because are sui rectly point provides on that the "official rec- combatants, the detention of and the ord of the Tribunal’s decision” shall consist them, processes related to "(a) of: A place statement of the time and specifically "functions” the APA exempts. hearing, persons present, quali- and their opinion The writer's in Al Odah v. United fications; (b) Report States, The Tribunal Decision (D.C.Cir.2003), sheet; (c) cover The classified and unclassi- addendum, explains attached hereto as an reports detailing findings fied event, of fact why. Judge Ginsburg's Chief based; (d) which the Tribunal decision was argument point. misses the Our review in Copies documentary presented of all APA, evidence this case is controlled not but to the Tribunal and summaries of all witness § Judge 28 U.S.C. Chief does not testimony. part broad, If explain why classified material is oí the unmodified term "agency” evidence submitted or considered bunal, Tri- 2112 excludes a Combatant report properly will be marked and Status Review Tribunal. the court to problem panel’s reasoning. other with the the detainee’s status enable 2112(b)’s He the Recorder ade- writes follow law determine whether quately job record governing performed gathering the contents his preclude question be to the court from dis information? “would This is essential charging assigned panel review function and neither nor Chief satisfactory in the” Detainee Act. an- Ginsburg given Treatment has ever C.J., Ginsburg, exactly at 1295. What to it. swer

this function”? Apparently “review Perhaps our court envisioned idea is that the court will look at how well examining the thousands of documents5 the Recorder did job gathering his making up the “record” on review “Government Information” and how well seeing how much of this information es presenting he culled it in the information caped the Recorder’s attention. But the to the Tribunal as “Government Evi government pointed fallacy has out the at dence.” Id. 1295-97. vision, contemplates compara that a

Forget Recorders, for the moment judgment. operating- that the Detain- The tive ee jurisdiction Congress Treatment Act limits our to before passed the Detainee Act, review of the THbunal’s status determina- Treatment did not save the informa 1005(e)(2)(C)(i). § tion. DTA Ignore as tion they part obtained unless it became controlling regulations permanent they present well under the record when Tribunal, court, it is the not the who su- ed it to the Tribunal. So if even this were (C)(2). § pervises court, the Recorder. E-l proper a function for our it is impos question Even so the does any par remains —how sible for us to determine whether requiring government the court’s order piece ticular of information obtained was to consisting assemble a record of all “rea- by any particular or was not obtained Re sonably bearing available” information on corder in any particular detainee’s case. Department regulations, 4. Under legal Defense which is furnished lo a tribunal other “reasonably by reasoning, “Government Information” wise than infer as basis of possession ascertaining ence in available information in the some other matter of Thayer, Presumptions bearing fact.” James B. and the U.S. Government on issue of Evidence, Law 3 Harv whether the detainee meets criteria to be .L.Rev. (1889). Moreover, the Detainee Treatment designated enemy as an combatant.” E-l Act, (E)(3). speaking preponderance of a § “Government Evidence” is "such evidence, requirement” refers to "the that the evidence in the Government Information as supported. Tribunal's conclusion be so DTA may support be sufficient the detainee’s 1005(e)(2)(C)(i). § The reference is to De classification an E-l combatant.” §(G)(11) Department regulation fense E-l (H)(4). dealing proof. with the burden of In context panel appreciate The did not seem to it is clear as a bell that the "evidence” in the large difference between “information” regulation the Act means the evidence pre "evidence.” It stated that "whether the Tribunal, pile before the not some informa ponderance supported of the evidence present. tion Recorder decided not Tribunal, conclusion of the cannot be ascer panel saying The thus erred in that to deter tained without consideration of all the Gov enough mine whether there was evidence to Gates, ernment Information.” Bismullah v. decision, support the Tribunal’s the court had (Bisimtllah II), citing 503 F.3d Bismul through to look information Tribunal nev Gates, (D.C.Cir.2007) lah v. er saw. (Bismullah I). That rationale could not hold Judge and the Chief seems to have abandoned government predicts 5. The that for each de- legal tainee, proceedings it. before courts and panel the record envisioned will bodies, adjudicative other the classic defini consist of "hundreds of of docu- thousands!. 1 "any Rehearing tion of “evidence” matter of fact ments.” Pet. for foregoing reasons dissent original panel opinion offered dif- For ferent rationale than the one Chief from the denial en banc. that the de- proposes. now It was tainee’s counsel would need to see Govern- ADDENDUM present argument ment Information “to RANDOLPH, Judge, Circuit in- exculpatory that the Recorder withheld concurring: I, 501 F.3d at 185- formation.” Bismullah 86. But the panel’s remedy far outruns ^{[*] [*] [*]} accepted this rationale. Even if one States or its officers United exculpatory information rationale —which only sovereign sued if there is a waiver of require disregard the court would See, immunity. e.g., Dep’t Army v. Blue 2112(b) 16(a) and Rule would at —this Fox, Inc., 255, 260, 119 S.Ct. most lead to conclusion that the record (1999). 142 L.Ed.2d 718 have held We on review should consist evi- Act, the Alien Tort its whatever plus any before the excul- dence Tribunal meaning, sovereign does not itself waive patory government information the has immunity. Panificadora, Industria S.A required Yet the all discovered. has States, United information, exculpatory incriminatory and (D.C.Cir.1992) curiam); (per Sanchez-Es- alike, bearing on the detainee’s status to 202, pinoza Reagan, v. 770 F.2d 207 deposited presump- with the court and (D.C.Cir.1985); Transport see Canadian tively made available to defense counsel. States, 1081, v.Co. United 663 F.2d 1092 (D.C.Cir.1980). The detainees therefore Why? We can be sure that the assem- rely on in provision the waiver the Admin- in bled information cannot be used our Act, 702, istrative Procedure 5 U.S.C. judicial of the Tribunal’s status de- “An which states: action in a court of the termination. And can also be sure that seeking States relief other than court, United assembly filing its and in this and money damages stating and a claim that counsel, potential sharing private with agency employee an or an officer or there- gives security rise to a of a risk severe of acted or failed to act in an official position agen- breach. That is the capacity ... shall not be dismissed on charged protecting country cies with ground against that it is the United attacks, against terrorist who warn States....” intelligence co- foreign services will cease if operating with the States United Although relying on the APA’s waiver opinion stands. Their concerns de- agencies, identify the detainees do not serve the attention of the full court on they “agency” which the United States rehearing en banc. They in mind. have sued the Presi- have case, point. One final Garland votes dent in each but the President is not banc, against “agency” he thinks the under the APA because and waiv- unimportant, sovereign immunity but he er thus case because believes does important apply it is more to advance our deci- to him. See Franklin v. Massachu- setts, 788, 800-01, 2767, in 112 sion-making Supreme order to assist the S.Ct. Garland, J., (1992); Armstrong at 1298-99. 120 L.Ed.2d 636 v. Court. (D.C.Cir.1991). Bush, important think that it is more 924 F.2d 289 We correctly military. specifi- and that a cor- The APA decide case This leaves cally “agen- rect be of more assistance excludes from its definition of decision would functions, High cy” among certain is “mil- Court.

397 against any for having declared war authority gress in the field in itary exercised war,” as the APA occupied territory.” or in “Time of eign time of war state. 701(b)(1)(G); 551(1)(G), military §§ see id. it, U.S.C. uses is not so confined. 553(a)(1) 554(a)(4), exempting mili President, & ordered with actions require tary “functions” from the APA’s continuing; are Congress, approval adjudication; rulemaking ments for part are of the war military those actions v. ex rel. Schonbrun Com United States network; Qaeda terrorist the al 2n. manding Officer, 403 F.2d “war,” not constitute and those actions (2d Cir.1968) J.). (Friendly, The district necessarily as the uses Constitution ruled, holding, in an alternative court word, Camp APA uses it. See but as the exclusion, military function because Clinton, 19, 203 F.3d bell v. sovereign immuni the APA does not waive (D.C.Cir.2000) J., concurring in (Randolph, Bush, F.Supp.2d n. ty. Rasul v. Laird, judgment); Mitchell (D.D.C.2002). I believe this is correct. (D.C.Cir.1973). are The detainees detainees, according point. to them To hold right Each of the not to contest this custody by taken into pleadings, was in APA that it is not “war” sense when “in American armed forces the field commits its armed the United States they remain time war.” believe a formal con forces into combat without custody “in the field in time of It is war.” poten would gressional declaration war they of no moment that are now thousands judiciary reviewing into tially thrust Afghanistan. of miles from Their deten places military decision-making relating ongoing for a purpose tion is coverage. the APA excluded from its times military they being operations * * * held at a base outside sover States, Al Odah United eign territory the The United States. (D.C.Cir.2003) J., (Randolph, con- 1149-50 of “in not meaning

historical the field” was curring). It applied restricted to the field of battle. in “organized camps as well to stationed BROWN, Judge, dissenting from Circuit places courts did not remote where civil banc: the denial of exist,” rel. Kinsella United States ex clarify to appreciate panel’s the efforts 234, 274,

Singleton, 361 S.Ct. production burden in the Government’s (1960) (Whittaker, J., joined L.Ed.2d panel these assumes CSRT reviews. Stewart, J., in concurring part and dis “reasonably ade- phrase available” senting part). judicial inquiry in To allow of the record quately scope defines the military captured into decisions after those from the phrase because that comes CSRT have been moved to a “safe” location would However, because the record regulations. in interfere with functions a man naturally so defined does not arise from ner the APA’s exclusion meant to forbid. may proceedings, panel have left acknowledged We as much Doe v. Sulli litigate. much to The Government van, (D.C.Cir.1991), 938 F.2d information is clearly uncertain about what then-Judge Ginsburg Ruth Bader when available,” searching “reasonably for the court that the APA’s mili stated laboriously through “all relevant federal tary applied function exclusion cases gathers to make sure it at least agencies” a court asked to “review mili was that much information. Pet. tary commands made the aftermath has, opine' on panel naturally, refused to battle.” It is also of no moment that of [ ] captured Con the results of such exhaustive the detainees were without available, reasonably ings. search are represented by Detainees are not (D.C.Cir. Gates, 141 n. 3 advocates, only by but Represen- Personal 2007) (denial (Bisritu panel rehearing) assist, duty tatives whose sole is to II), lla h but it seems to think that too defend, Conversely, them. the Recorders unreasonable, intensive a search would be and the an obligation, CSRTs have under see id. at 142. The that it avers did procedures, to find and examine excul- require search for information “[a] patory so, being evidence. That it seems regard ‘reasonably without to whether it is improbable that the Government need turn ” available.’ Id. at 141. But reliance on only over the Record of Proceedings com- may this sort of verbal formulation confuse piled CSRT, after it originally as clarify rather than obligation. Using Gates, urged, Bismullah v. phrase “reasonably provides available” (D.C.Cir.2007) (Bismullah I). On the definition, process not a but -an —based hand, other everything demand means legal abstract standard. If the Govern engaging this court in de novo populate ment must the record based on CSRTs, panel acknowledges. standard, this it will have to conduct a new See Bismullah 503 F.3d at 139-40. Is search for satisfy materials that it. Under such Congress review what intended when panel’s order, the record be con passed the Detainee Treatment Act? gruent with universe information regulations, identified but it bears Congress mandated this court to review no direct relationship pro to the CSRT the CSRTs. An appeal adversarial from a any cess-or process Although at all. hearing nonadversarial is an unfamiliar panel might right been reject have to. process in country, this but it is common in Government’s offer of the record that parts other Indeed, of the world. since considered, a CSRT that version of the military’s prisoner-of-war procedures record is at product least the definite of a were developed implement international process actually happened.1 The like law, l-6(a) Army Reg. 1(b)(8), 1— ly relying result of on a theoretical record (citing Geneva Convention Relative to the litigation be continued will over the inclu Treatment of Prisoners of War art. Aug. pieces sion or exclusion of various infor 12, 1949, 3316), 6 U.S.T. it is conceivable mation, so that review of the merits of they intentionally were modeled on substantially delayed. these cases will be inquisitorial traditional procedures. Many This would be fair to neither the Govern aspects similar, seem including ment nor the detainees. the role of the Recorder as both judge investiga generated denial of has tor. Not prepare does he the “official separate opinions disputing proper five Memo, decision,” record of the Tribunal’s scope production; of continuing this de- Sec’y from the Navy of the on Implemen bate suggests yet the court has found tation of Combatant Status Tribu Review right paradigm. Although we strain C(10) 29, nal Procedures Encl. 2 us, (July for familiar analogies guide none of 2004); apt, gathers them is he also they because all miss a central the Government point; proceed- Information, CSRTs are not adversarial “reasonably which includes all CSRT, corollary, reconvening 1. As a a as the The court will still review whether the Re- panel proposes, panel gathered 503 F.3d at corder for new all reason- issue, only postpone ably will because the available information. Bismullah 185; C.J., abstract set of Government Information will Ginsburg, F.3d at of at 1295- proceeding have no relation to that either. 96. on ... bearing information ... available F.3d 1308 the detainee” is an com AMERICA, ROLE MODELS batant, E(3), id. including Encl. 1 evi INC., Appellant dence for and both determina tion. Cf. Jacqueline Hodgson, French GEREN, Secretary Army Pete (2005) (investigating Justice Criminal Spellings, Secretary Margaret magistrate “gather[ must evidence ] Education, Appellees. of exculpate as might well as incriminate No. 06-5294. case, Most a suspect”). important for this of Appeals, United States Court inquisition prepares civil-law a well-defined District Columbia Circuit. review, materi consisting record magistrate al that actually gathered. Argued Dec. 2007. McKillop, Anatomy Bron a French Decided Feb. 2008. Case, Comp. 45 Am. 544- Murder J. L. En Rehearing Bane Denied (1997). Naturally, contains this record April significantly less information than what magistrate could gathered have be it was cause available.

My point is not to hold out continental procedure perfect

criminal as the model review, although

for CSRT it be the (and may been actually

closest have

original) model for the military’s prisoner- Nor, course, tribunals.

of-war law, although

source it can be useful given military’s

source ideas

prisoner-of-war regulations ad- expressly Nevertheless,

vert to international law. could

this court define the record other

ways required by than “all” “nothing”

or the offered the Govern-

ment, this a set definition is one of this court

decisions should make about are to

how we conduct form of this novel I am

review. now convinced should begun by discussing problems

have thoroughly

much more Accord- banc.

ingly, I dissent from the denial rehear-

ing.

Case Details

Case Name: Bismullah Ex Rel. Bismullah v. Gates

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Feb 1, 2008

Citation: 514 F.3d 1291

Docket Number: 06-1197, 06-1397, 07-1508, 07-1509, 07-1510, 07-1511, 07-1512, 07-1523

Court Abbreviation: D.C. Cir.