Bismullah v. Gates

Haji Haji BISMULLAH a/k/a

Bismillah, Haji and a/k/a

Besmella,

Haji Wali, Mohammad next friend Haji Bismullah, Petitioners

v. GATES, Secretary

Robert M. Defense, Respondent. Parhat, al.,

Huzaifa et Petitioners

v. Gates, Secretary Defense,

Robert M. al., Respondents.

et 06-1197,

Nos. 06-1397. States Appeals,

United Court of

District of Columbia Circuit. 15,

Argued May 2007. July

Decided 2007.

As Amended Oct. 2007. argued the cause for

Jeffrey Lang I. Bismullah, et al. Sabin Haji petitioners argued petitioners Willett the cause for In order to review a Tribunal’s de Parhat, that, Huzaifa et them on termination upon preponder al. With based Rutkowski, evidence, ance of the briefs were Rheba Neil G. detainee is an combatant, enemy Pinney, the court McGaraghan, Jason S. Susan B. must have access to all the B. information available to Manning, Missing, John Jennifer R. that, the Tribunal. Cowan, We therefore hold Berg. and Jill van contrary position to the of the Govern Letter, Douglas Attorney, N. U.S. De- ment, the record on review consists of all partment Justice, argued the cause for information Tribunal is authorized respondent. him on With the brief were consider, to obtain and pursuant to the Keisler, Attorney Peter D. Assistant Gen- procedures specified by Secretary eral, Katsas, Gregory Principal Deputy G. Defense, hereinafter referred to as Gov General, Attorney Associate Jonathan F. ernment Information and defined Cohn, Deputy Attorney General, Assistant Secretary the.Navy as “such reason and August Robert M. Loeb and E. ably available information in the posses Flentje, Attorneys. sion of the U.S. bearing on the issue of whether the detainee meets GINSBURG, Before: Judge, Chief the criteria to designated be as an enemy ROGERS, HENDERSON and Circuit combatant,” which includes informa Judges. presented tion to the Tribunal the de Opinion for the court filed Chief tainee or his Personal Representative. Judge GINSBURG. addition, In implement we must such Concurring opinion govern filed Circuit measures to these proceedings as Judge are necessary ROGERS. us to engage enable meaningful review of the record as defined GINSBURG, Judge: Chief Therefore, above. we will enter a protec- Petitioners are men eight detained at tive order adopting a presumption, as the Naval Station Bay, at Guantánamo posed by petitioners, that counsel for a petitioner Cuba. Each seeks review of the detainee has a “need to know” the classi- determination aby Combatant Status Re- fied relating to his client’s (CSRT Tribunal) view Tribunal that he case, except the Government “enemy is ah combatant.” In opinion counsel, withhold from but not from the we procedural address the various motions highly certain sensitive information. parties govern have filed to our review protective The provide order will also of the merits of petitions. the detainees’ the Government may inspect correspon- petitioners aas group the Govern- detainee, dence from counsel to including ment propose each the court enter a pro- “legal mail,” and redact anything that does tective govern order to such matters as pertain to the leading up events access to handling of classified infor- detainee’s capture culminating in the mation; petitioners move to compel conduct CSRT, of his including such discovery and appointment for the of a events in between upon bear deci- special master; and the Government asks sion of the Tribunal or our review thereof. the court to petitioners treat seven Finally, protective provide order will joint who filed the petition in v. Parhat lawyer that a offering his or her services (No. 06-1397) Gates as though each had may, petitioners as the propose, up have filed a separate petition to review his sta- two visits awith detainee in order to ob- tus determination. tain the detainee’s authorization to seek detention, deter- interrogation, previous his determination of the CSRT’s review (E-l of the detainee[ ].” mination of status status. C(l)) to “determine § The Tribunal order, the entering protective Before of the evidence preponderance whether the opportunity an parties give court will that each detainee the conclusion supports changes. suggest as an designated criteria to be meets the B) (E-l Background There is a enemy I. combatant.” the Govern- presumption rebuttable cap- foreign national is a petitioner Each Evidence, as “such evidence ment defined Guantánamo, at and held abroad tured Information the Government of CSRT a decision review of seeking the classifi- support sufficient to detainee’s “enemy combat- is an he determining that (E-l enemy cation an combatant” as subject to detention and therefore ant” (E-l H(4)) accurate” “genuine § and is Haji Bismullah of hostilities. the duration G(ll)). § in Hu- 2003. Afghanistan in captured was other detainees the six zaifa Parhat and request is authorized The Tribunal who Uighurs ethnic are

joining petition his in- “reasonably available production the captured in Pakistan were allege they of the U.S. possession formation in the 2001. approximately December the of wheth- bearing on issue Government to be meets the criteria er the detainee Regulations A. The (E-l combatant,” enemy as an designated for the Memorandum July In a Recorder, E(3)) military offi- § Secretary of Navy, the Secretary of the cer, obtaining gov- from charged with is procedures skeletal Defense established reviewing all such agencies and ernment proceedings conduct of CSRT for the (E-2 ’C(l)). § Information Government held Guan foreign nationals at respect orally inor present, must The Recorder “review the detainee’s status tanamo to (E-2 C(6)), § both the documentary form Secretary of The enemy an combatant.” and, if there be Evidence operate Navy, “appointed who was Information, all “evi- in the Government process,” prompt CSRT] [the and oversee should that the detainee suggest dence to de specifying ly issued memorandum enemy an combat- designated as not be Memorandum), (Navy tailed B(l)) (E-l H(4), § In advance § E-2 ant.” are still effect.* which Recorder hearing, Tribunal a CSRT procedures, to those Pursuant summary an unclassified prepare must determination, after made reviews the Information relevant Government military offi- of review “multiple levels summary to the detainee’s provide the Department cers and officials military also Representative, Personal B) (E-l is an Defense,” § that a detainee (4)) (E-2 C(2), § officer. combatant,” as “an individ- defined “enemy Representative Personal Each detainee’s Taliban supporting of or part was ual who Re- Evidence the Government reviews forces, forces or associated Qaida A1 the Tribunal present corder plans against in hostilities engaged that are (E-3 C(3)), to the Govern- has access § partners.” its coalition States or United (E-3 C(2)), meets § ment Information B) (E-l composed § A Tribunal is explain the CSRT detainee with the who commissioned officers” “three neutral Representative Personal The process. “apprehension, in the not involved were * the CSRT citations to in our we below Navy to his refer attached Secretary of the "E-2,” “E-l,” and “E-3.” ''enclosures,'' procedures as to which three memorandum not, however, may CSRT, share classified infor- then the decision becomes final. (E-3 C(4)) (E-l mation 1(8)) § with the detainee. § The Personal Representative pres- “shall B. The Statutes

ent information to if the Tribunal the de- requests” tainee so “may, outside In December 2005 the signed President detainee, presence of the upon comment into law the Detainee Treatment Act classified information submitted the Re- (DTA), 109-148, Pub.L. No. (E-3 C(5)) § corder.” may The detainee 1005(e)(2)(A), § 2742-43, 119 Stat. which testify or introduce documentary relevant vests jurisdiction court exclusive “to evidence at the hearing, but not be validity determine the of any final decision (E-l compelled to questions. answer aof that an [CSRT] alien is properly de- F(6)-(7)) He .present also the testi- tained an enemy combatant.” Section mony witness who “reasonably 1005(e)(2)(C)of provides: the Act available and testimony whose is consid- The jurisdiction of the United States (E- ered to be relevant.” Tribunal Court of Appeals for District of Co- F(6)) §1 lumbia Circuit on claims with re- After hearing, the Recorder com spect to an alien under paragraph piles a “Record Proceedings,” of consisting shall be limited to the consideration of— (1) a statement of the time and place of (i) whether the status determination hearing the and the names of pres those of the Combatant Status Review Tri- (2) ent; the Report Tribunal Decision cov bunal regard to such alien was sheet,* (a) er which is accompanied by the consistent with the pro- standards and classified and reports unclassified by made specified cedures by Secretary the the Recorder “upon which the Tribunal Defense for Combatant Status Review (b) decision was copies based” and of all (including Tribunals requirement documentary presented evidence that the conclusion of the Tribunal be (3) CSRT; a summary prepared by the by supported preponderance a of the Recorder of each testimony; witness’s and evidence and allowing a rebuttable (4) the summary report by written presumption in favor of the Govern- dissenting (E-2 of the member Tribunal. evidence); ment’s and C(8), G(12)) § §E-l (ii) to the extent the Constitution and Each Tribunal has a “Legal Advisor” of the laws United applica- States are with whom the members consult re- ble, whether the use of such standards garding legal, evidentiary, procedural, and and to make the determi- (E-l C(4)) like § matters. Legal The Ad- nation is consistent with the Constitu- visor legal reviews for sufficiency both the tion and laws of the United States. CSRT’s rulings on whether witnesses and Soon after arriving at Guantánamo, evidence are reasonably available and its many detainee, either personally ultimate determination of the detainee’s (E-l 1(7)) through a § status. “next friend” acting on Legal his be- Advisor half, sought forwards the release filing petition Record of Proceedings to the “Director, (E-l CSRT,” 1(5)) § a writ of habeas corpus re- who the district (E-l views the decision 1(8), § as well. court. Beginning January 2006, after C(10)) §E-2 If approved by Director, enacted, detainees, DTA was some in- * A designated Tribunal member the Tribunal er ... sheet which [serves] as basis for the (E-l H(9)) President § must preparation “document Recorder's of the rec- Tribunal Tribunal's decision on the Report [CSRT] cov- ord.” such evidence to the court present in this court filed petitioners, eluding (3) CSRT; and presented status of a was not both review seeking petitions hearings writ of master to hold special and a appoint aby CSRT determination necessary to See, findings, v. Paracha make factual e.g., and corpus. habeas from the Gates, In October disputes arising No. 06-1038. address signed discovery the President In orders. passed protective Congress posed Act Military Commissions discovery, Bismullah compel into law his motion 7, 109-366, § 120 Stat. (1) (MCA), Pub.L. No. the Record access to counsel also seeks court unclassified) 2635-36, stripped the district (classified which Proceedings filed petitions habeas jurisdiction (2) over In- CSRT; his before “an alien detained (3) or on behalf Bismullah; regarding formation deter has been who States the United of Bismul- support or letters statements have been States by the United mined (4) relating to Bis- lah; other documents enemy combatant as an detained properly notes, “records, CSRT, including mullah’s MCA such determination.” awaiting or is correspondence memoranda 2241(e)(1). Meanwhile, 7(a), § 28 U.S.C. Recorder, members, Personal Tribunal in the filed stayed petitions had we par- person who or other Representative, of Bismul- including those appeals, court (5) CSRT”; and in Bismullah’s ticipated Petitioners, pending and the Parhat lah “reasonably documents available other v. in Boumediene decision this court’s of the U.S. possession in the denied, 990-91, cert. Bush, 476 F.3d whether Bis- bearing upon government” — 1478, 167 -, 127 S.Ct. U.S. designated to be mullah meets the criteria — U.S. -, granted, cert. L.Ed.2d enemy combatant. an — - (2007). 3078, L.Ed.2d 127 S.Ct. discovery, the compel to In their motion that, the held because case In that we access to counsel Petitioners seek Parhat would corpus of “habeas law writ common (classified and un- (1) records the CSRT to aliens in 1789 available not have been classified) Petitioners Parhat for all seven the property within presence without allegedly men Uighur for 13 other and not vio States,” Congress did United and time custody at the same taken into of the Suspension Clause Constitu late the Kandahar, (2) records created place; Const, I, § when it tion, cl. art. U.S. any regarding or Guantánamo Afghanistan juris court district stripped the federal enemy as an status Petitioner’s Parhat filed petition habeas to hear diction (3) De- State combatant; of the records States.” by the United “an alien detained foreign gov- persuade to effort partment’s pending the motions up now take We the 20 to grant asylum to ernments DTA cases. petitioners’ Petitioners; Parhat including the Uighurs, inter- (4) regarding files the Government’s The Motions C. (5) Petitioner; Parhat rogation of each issues preliminary to resolve In order the Re- conduct of concerning the records the merits reviews this court before concerning proceedings in all corder CSRT mo- claims, filed petitioners all the their (6) Petitioners; records Parhat any of the (1) pre- order protective to enter tions any visit Guantánamo concerning in all by the district court viously entered China in Republic People’s official de- brought Guantánamo cases habeas detainee, any Uighur interrogate order to (2) (Status Order); compel Quo tainees petitioners interrogation upon which gath- discovery, allowing petitioners may have re- the Tribunal are concerned Govern- to the available all evidence er enemy combat- them designating lied in was held the CSRT at the time ment (7) ants; concerning any records Par- A. Record The hat Petitioner’s affiliation with the East The petitioners argue the court must Movement, Turkistan Islamic which the beyond look the Record of Proceedings Government designated a organ- “terrorist and consider all evidence reasonably avail- pursuant ization” 8 U.S.C. able Government, which include 1182(a)(3)(B)(vi)(II) years more than two evidence neither the Recorder nor the de- after the Parhat they Petitioners allege tainee’s Personal Representative nor the captured, 23,555 were see Fed.Reg. put addition, detainee before the In CSRT. (2004), and with which Parhat Petition- they point out that many of allege, ers in apparent anticipation of the specified by Department of Defense Evidence, they have affilia- no for the conduct of a CSRT steps address tion. to be taken before hearing, argue part,

For its the Government moves the therefore the court must have avail- court to enter a substantially able to it revised ver- information sufficient to enable protective sion of the order review a entered detainee’s claim that the Gov- (Government’s district court did Proposed comply ernment not Or- with a pre-hearing der), entry before the procedure. of which it apparent- For example, Bismullah con- ly tends, refuses to turn over to on belief, counsel for the information and that the petitioners any classified Recorder for information and his proceeding failed gath- “any information designated by er and potentially the Gov- examine exculpatory evi- ernment protected dence present information.” The and to that evidence to the Government also proposes the court treat Tribunal. Bismullah also alleges the Tri- petition filed the seven bunal Parhat Peti- acted arbitrarily capriciously by, tioners separate as seven petitions. example, ruling that Bismullah’s broth-

er was “reasonably available” to testify Analysis II. an submit affidavit. The Parhat Peti- similarly tioners allege the Recorder failed parties fundamentally disagree present the Tribunal with statements about what constitutes the record which made by military interrogators advising this court must look as it reviews a them as early as they 2003 that soon would CSRT’s determination that petitioner is be released. The Parhat Petitioners also enemy an combatant. parties agree The seek information regarding Uighur other that the court should protective enter a detainees order to support their claims order before the gives counsel that the Government acted arbitrarily by (all for petitioners the of whom have the finding the Parhat enemy Petitioners to be requisite clearance) access to clas- combatants while finding similarly situated protected sified and information, and that detainees were not enemy combatants. Fi- protective the provide order must a meth- nally, the petitioners that, contend even if od for counsel to communicate to a detain- the court does not the review Govern- ee nonclassified but confidential informa- compliance ment’s with pre-hearing proce- tion, in writing person. and in The parties dures, they are discovery entitled to di- disagree, however, over several particu- rected at determining whether exculpatory lars. petitioners The ask the court to material was withheld from the Tribunal. protective enter the order entered the district court in the aforementioned habeas petitioners propose only to com- cases, and the Government proposes a pel sub- discovery but also to supplement the stantially different order. record such with evidence they as discover

185 Proceedings is sufficient for for Record As counsel their claims. relevant by the because a meaningful their review argument, at oral said petitioners the availability for of a strictly reasonable speaking ruling “not on the request is discov the com to have for the court must be made on ery or of evidence [but] witness they rely it.” Here before plete record; Representative’s record the Personal the Train, 287, 291- 519 F.2d v. NRDC upon largely detainee is communication the that (D.C.Cir.1975), in we held which 92 scripted, leaving produce “[his] no need a “substantial made plaintiffs the after notes, correspondence”; memoranda filed with EPA had not showing” that the Recorder, actions of the whose and the record entire administrative the court the subject strong to a is routine and task review, they were under matter of the subject “presumption regularity,” determine, opportunity to an “entitled detainee, testify who challenge by the any other discovery, whether by limited behalf, the detainee’s his own on part of properly which [were] documents may review Representative, who Personal been with record had administrative the the Government Information. the Thus, contend petitioners the held.” concerning questions approach We supplemen considers appropriately court we are to review content of the record when tal extra-record mindful DTA this court to that the directs deci validity [agency’s] “procedural validity” of a Tribunal’s “determine Yeutter, scrutiny,” Esch v. sion” is “under particular with ref- “status determination” because, (D.C.Cir.1989), 976, 991 F.2d 876 made “consistent to whether it was erence docu agency excluded example, speci- procedures the standards and with adverse to its might have been ments Defense, ... in- Secretary fied decision, Levy Court County, Del. see Kent requirement the conclu- cluding (D.C.Cir. F.2d 395-96 v. EPA by a supported' sion of Tribunal 1992). of the evidence.” DTA preponderance position is The Government’s 1005(e)(2). out, point petitioners As the limited properly the court is before record specified many compiled Proceedings, to the Record Secretary steps the Recorder relate According to the Gov- by the Recorder. the Tribunal holds must take before others ernment, v. Rums- in Hamdi plurality compliance to review hearing. In order 507, 538, 124 S.Ct. feld, 542 U.S. the court must be procedures, those with (2004), “rejected free-wheel- L.Ed.2d 578 Information to view the Government able a citizen detained discovery” for even ing parties; for both the aid of counsel long as enemy alleged combatant as an only the has seen counsel who detainee’s military proceeding was a formal there pre- Information of the subset Government the detainee to a CSRT which “akin” to position in no the Tribunal is sented to facts. The version of the present his could no other simply is aid the There court.. by directing this believes that Government argu- present an to way for the counsel validity of “determine the court to exculpa- withheld the Recorder ment that Re- Status of a Combatant decision final in viola- from the Tribunal tory evidence 1005(e)(2)(A), the Tribunal,” § DTA view if Even specified procedures. the tion of this Court’s “evoke[ ] intended Congress a are entitled actions the Recorder’s a final ad- reviewing of function familiar Govern- as the regularity, of presumption upon the rec- decision based ministrative not at which is all maintains —but ment of support In agency.” the ord before not have the does a CSRT clear because any need for the of position and lack ordinary of the ad- transparent features contends discovery, the Government process ministrative and the Recorder is be sufficient to determine whether the Tri- decisionmaker, not agency the final see bunal acted in accordance with the speci- Dep’t Agric., Martino v. U.S. 801 F.2d procedures. fied pe- Nor does a detainee (D.C.Cir.1986) 1412-13 pre —that titioner need regarding irrebuttable,* see, sumption is not e.g., conduct of another detainee’s CSRT SEC, NRDC v. 606 F.2d 1049 n.23 ceeding. Such information is not relevant (D.C.Cir.1979) (listing methods of rebut review, to our necessary therefore not ting presumption regularity); but it for a representation counsel’s of his de- irrebuttable, effect, would be if neither client; tainee the Act authorizes this court petitioners’ counsel nor the court could to “determine validity final de- ever presumption look behind the [CSRT],” § cision of a 1005(e)(2)(A), DTA addition, actual cannot, facts. In the court jurisdiction and our under the Act is ex- us, DTA charges consider whether pressly “limited to the consideration of’ preponderance supports of the evidence whether a detainee’s status determination the Tribunal’s status determination with was “consistent with the standards and evidence, out seeing all the more than procedures specified by Secretary one can tell whether a fraction is more or CSRT],” Defense for including [a the re- less than one half looking only at the quirement that the Tribunal’s status deter- numerator and not at the denominator. mination be supported by a preponderance The petitioners argue that once counsel evidence, 1005(e)(2)(C)(i). of the § DTA have seen the Government Information The Act does not authorize this court to particular detainee, relative to a they may determine whether a status determination need discovery in order to ensure “the arbitrary is because, and capricious to use actually Government has collected all [doc- petitioners’ example, it is inconsistent uments it required They collect].” with the status determination of another believe, is, they may be able to make detainee who was detained under particularized similar showing of specif- need for ic If preponderance documents in circumstances. addition to those obtained by the Recorder. evidence in the broadly under- record — stood to include the Government Informa- deny We petitioners’ motions tion just and not the Government Evi- to compel discovery, prejudice without dence, plus any evidence submitted renewal, they because have not made a detainee or Representative— his Personal showing justify sufficient compelling supports the Tribunal’s finding, then the discovery at stage proceed these Tribunal’s status determination must be First, ings. petitioners do not need upheld, provided, course, the determina- discovery in order challenge a CSRT’s tion was otherwise ruling made requested that a accordance witness or item of with the evidence was “standards “reasonably available”; speci- as the out, points fied ruling Secretary of Defense.” DTA must record, be made on 1005(e)(2)(C)®. which should * Insofar gathering Information, as the task of Government merit alleges, as Bismullah a performed by Information was panel someone other reviewing the merits of a CSRT status Recorder, than the Decl. of Rear Admiral position determination will be in a to resolve (Retired) ¶¶ 31, M. (May James McGarrah 4-6 procedure whether the followed was "consis- 2007), concurring as colleague points our out tent procedures with the speci- standards and happened, have or the Recorder has Secretary fied the of Defense for [a altogether gather failed to 1005(e)(2)(C)(i). certain § Govern- CSRT].” DTA in Petitioners of review court. process Protective Order B. The and in camera review parte ex argue that Act, 28 U.S.C. Writs to the All Pursuant information, classified highly sensitive of issue the court to authorizes which proposes, is not an the Government as in aid appropriate necessary or writs “all judgment for the adequate substitute ],” a we shall enter jurisdiction! of [its] evidence identifying exculpatory in counsel resolving points the order protective Tribunal, the Re- that the and evidence a parties the such between contention corder, Representative or the Personal frus parties do not the way as to ensure speci- the comply failed to a CSRT ability to review court’s trate the conduct of a fied for the CSRT. DTA. Tele under the determination Cf. FCC, 750 v. Ctr. Research & Action com. it that this court think clear We (D.C.Cir.1984) (holding pur F.2d 75-76 responsibility under discharge its cannot ap Act that court All to Writs suant DTA, responsibility to particularly the its claims of unreasonable “may resolve peals whether a the preponderance determine its protect in order to [by agency] delay determi the Tribunal’s supports evidence agency final review jurisdiction” to future nation, petitioner’s a counsel has unless enter, action). following an we The order practical much as is access to suggest to parties for the opportunity his client. information regarding classified by the proposed be order changes, will can argue, cannot nor simply Counsel to Government, to conform as modified determine, preponderance a whether court opinion. supports the Tribunal’s of the evidence seeing all without status determination Infor- to Classified Access 1. Counsel Therefore, presume we counsel evidence. mation know” all has a “need to for a detainee over to turn proposes The Government concerning his Information Government only information petitioner for a counsel to client, of the Govern just portions to the CSRT and presented was the Tribu presented to ment Information petition- determined Government has “the ” nal. know,’ which to has a ‘need counsel ers’ to is overcome presumption That will anticipates the Government practice seeks withhold extent the In- turning over all the Government mean information, highly from counsel sensitive infor- exceptions for with limited formation highly sensi- pertaining than information anyone pertains other mation information, other than the anyone or to detainee, highly sensitive tive source highly sen- evidence presents to a but such pertaining information detainee Therefore, infor- highly sensitive and in camera. parte source. Such sitive court ex Order, mation, represents Quo ex- the Government which in the Status required redacted, shown, would the Govern- rarely be found good will cause cept for parte to the court ex available made to counsel provide notice ment shall in the event detainee in camera day it files such the same on petitioners his status judicial determi- review does not seeks The court parte. ex information nation. such to disclose require the Government because, consistent to counsel information counsel, has each of whom Petitioners’ deference, is within “[i]t rule with our clearance, they contend have acquire of the executive the role their about to know” all “need nation- protecting expertise of exercise order cases in and related cases clients’ the role of the not within security. It is al in the adversarial effectively participate 188 second-guess

courts to executive judg- about the rules governing mail sent ments made in furtherance of that counsel, detainee to his they but do dis- proper branch’s Ctr. role.” Nat’l Sec. agree about how mail from counsel to the for Justice, Dep’t Studies v. U.S. 331 F.3d detainee client should be handled and 918, (D.C.Cir.2003); CIA, 932 Stillman v. scope about the representation counsel’s (D.C.Cir.2003) (“Precise- 546, 319 F.3d 548 under the DTA. ly because it is often difficult for a court to proposed Orders, Under both a Privilege review the classification of national securi- composed Team of Department of Defense ty information, anticipate that ‘[w]e personnel open an envelope would labeled affidavits, camera review of if followed nec- legal as mail and to a addressed detainee. essary by judicial further inquiry, will be Quo Order, Under the Status Privilege ”). the norm’ Team legal would search mail only for The proposes Government also uni contraband, staples, such as paper clips, or laterally to determine whether information items; nonpaper other under the Govern- “protected,” meaning petitioners’ that Proposed Order, however, ment’s legal keep must it counsel confidential and file mail would be prohibited searched for con- under seal containing document such tent, is, anything scope outside the information. For example, the Govern (of attorney’s representation which ment designate “protected” would as infor below). more The Proposed Government’s “reasonably mation expected to increase Order also would “legal limit mail” to: injury threat of or harm any per documents and drafts documents that son” and information already designated are intended filing in this action and by the Government to be “For Official Use correspondence directly related to those Only” or “Law Enforcement Sensitive.” documents that— Government, It is the not the i. directly are related to the litigation judicial record, has discretion to seal cf. of this [DTA] action [and] United El-Sayegh, States v. 131 F.3d (a) ii. only address leading those events (D.C.Cir.1997) (“The decision whether up (b) capture this detainee’s or judicial to seal a record is ... committed conduct of the CSRT proceeding relat- court”), the discretion of the district ing detainee[,] to this public which the ordinarily right has the thereby implicitly effectively limiting but inspect copy, Nixon v. Warner scope representation counsel’s Commc’ns, Inc., 589, 597, 435 U.S. 98 S.Ct. DTA action. The Proposed Government’s (1978). 55 L.Ed.2d Therefore, Order also would expressly prohibit coun- insofar a party seeks to file with the sel from communicating any information court nonclassified information the Gov- scope outside the representation. their ernment “protected,” believes should be petitioners object regime, to this the Government give must the court a pointing first out that under the Status basis for public it from withholding view. Quo Order, long counsel have prohib- been 2. Counsel Access to Detainees ited telling from a detainee about: ongoing or completed military intelli-

Both Quo the Status Order and the Gov- gence, security, or law op- ernment’s enforcement Proposed Order “legal define erations, mail” correspondence investigations, between a arrests ... detain- ee and his respect political counsel with current subjects any country events in properly within the scope of rep- directly counsel’s are not related to counsel’s parties resentation. The do not disagree representation of that detainee.

189 case to the present the detainee’s have never breached their counsel Because the of review with thereby process the aid claim and petitioners the provision, this for the Con- charged need to screen we have been does not which might however, their counsel cannot any legal Regrettably, mail we gress. content responds past The Government them. the Government that disagree send with Quo Order was the Status while Quo that Order of the Status some breaches the effect, though Govern- some justify the Govern- for detainees counsel counsel— the for counsel suggest not ment does topics about to the proposal ment’s narrow legal mail to use petitioners present with may correspond a which all counsel —did sub- prohibited about their clients inform hold all counsel accounta- detainee and to Iraq, military operations including jects, legal they the mail by screening send ble upon attacks, attack Hezbollah’s terrorist their detainee clients. to pris- at Abu Israel, Ghraib and the abuse the Govern- Relatedly, agree we infor- such asserts The Government on. au- scope representation that the of ment to violence” “incite detainees can mation limited, in the by the DTA is thorized riot, hunger “unrest,” such as cause Act, judicial pursuit of words of the as, indeed, it done strike, has or suicide— validity of review “determine the to past. in the read [CSRT].” final We decision contend, least, petitioners theAt however, to limit proposal, Government’s de represent may legitimately counsel between correspondence content of the ways of find alternate in efforts to tainees to “those and their counsel petitioners detention, including diplomat ending their cap- leading up to this detainee’s events means, therefore must able ic pro- “conduct the CSRT ture” and the regarding detainees correspond with the detainee,” so as ceeding relating to alternatives; they might example, for such occurring between the de- events include concerning which correspond want hearing, and his capture CSRT tainee’s asylum. seeking are suitable countries of at least three as the claim such a good alterna nonlegal mail is Using they were told Parhat Petitioners mail, they say, legal because using tive early they as 2003 military personnel heavily redacted. very slow it is necessary to This would be released. Moreover, the attor assert petitioners as his such leads to follow enable counsel which is intended privilege, ney-client exculpatory regarding provide client can full frank communication “encourage “reasonably avail- might be evidence attorneys and their clients between nonetheless able,” the Recorder which but public interests thereby promote broader and examine.” failed to “obtain and the of law adminis in the observance & Berlin v. justice,” Swidler tration issued, we order to be protective In the States, 399, 403, S.Ct. 118 United U.S. proposal the Government’s will include (internal (1998) quo 2081, 141 L.Ed.2d 379 Team, per- composed Privilege allow a omitted), com applies to marks tation Defense, to Department sonnel from de counsel and the munications between coun- to ensure mail in legal review order tainees. not include con- does correspondence sel’s previous scope of tent outside as to expressing view Without procedure proposed paragraph. ap attorney-client privilege whether confidentiality communications tects the context, agree we must in this plies by pro- detainee and the between counsel between and frank communication” “full may not Privilege Team viding that help counsel will and his counsel detainee of a standing disclose the content communication to prisoner to act on behalf of who is anyone unless counsel for a detainee seeks litigate “unable to his own cause due to court prevent Privilege intervention to incapacity, mental lack of access to screening redacting Team from infor- or other disability”). similar For one detainee, mation sent to the in which event thing, each detainee has been notified of Privilege “may Team disclose the ma- right his to seek review under the DTA. In terial at Special Litigation to a Team issue addition, detainees, some according to the Department ... [in Justice to and] Government, in “revel their status as ene- the Commander [at Guantánamo] his mies of the United States” and should be representatives, including attorneys for allowed to choose not to participate in a Special the Government.” The Litigation DTA action. Team, none of whose members liti- petitioners’ object counsel to the gate the merits of a petition brought by a eight-hour upon limit their effort to per- detainee, represents Privilege Team suade a pursue detainee to an action under any dispute over screened or redacted in- because, the DTA they say, the detainees formation. are so distrustful that it longer can take Attorney Prospective 3. Access to than persuade Clients that to engage one to coun- They sel. propose that lawyer a be al- The Government give refuses to counsel lowed to visit a potential detainee as a access to classified information or to the twice, client unspecified for an period of legal system mail until provides counsel time, as has been “written allowed until evidence” that a now under per- detainee has sonally Quo represent authorized counsel the Status Order. him, even when a next purports friend We conclude the requirement of act on behalf of a end, detainee. To that Quo the Status Order that a lawyer “pro the Government proposes to allow a law- vide ... authority evidence of represent yer one visit to Guantánamo to meet with a ... detainee after the conclusion of a

potential detainee client for up to a total of second visit with the detainee” is reason eight in which hours to obtain the detain- able that it lawyer allows the time to ee’s authorization to pursue petition a earn the detainee’s trust and to discuss review of the detainee’s status determina- whether the detainee peti wants to file a tion. The Government asserts the eight- judicial tion for review. The Government hour limit is needed prevent an “unwiel- has not shown that two visits rather than dy situation,” and unworkable apparently one will harm its interests or overburden referring to upon the burden the base its resources. contrary, On the the Gov administration of accommodating numer- ernment itself has allowed that a ous visits detainee lawyers to poten- meet with represented by tial counsel clients. should not limit ed to three visits with retained counsel—as The Government believes a detainee’s the Government proposed had first in this personal authorization is “strongly [to be] because, upon based an evaluation case— preferred” putative because a next friend of the “resources and needs at Guantana probably satisfy does not requirements bymo” Harry Harris, Rear Admiral B. for standing. Arkansas, See Whitmore v. Commander of the Joint Task Foree- 149, 163, 165, 495 U.S. 110 S.Ct. Guantánamo, (1990) the Government L.Ed.2d 135 determined (holding in habeas ac- such a tion “next limitation “is “truly longer friend” who is no dedicated warranted.” Though best interests of person on Government asserts its pro whose behalf he seeks litigate” posed has one visit/eight-hour upon limitation standing next friend can demonstrate lawyer potential and a a meetings between disability. appropriate under such a After “warranted detainee is client is still Guantánamo, it at operations” light lawyer and a detain- two visits between lawyer’s addi- showing that made no has ee, lawyer should be able either imposes client potential visit to see tional express authorization obtain the detainee’s a it than does upon any greater burden DTA action or the him in a represent to a client he or visit to lawyer’s additional to friend be able would-be next should already represents. she obtain, lawyer, evidence of the through the Bismullah, represent who for Counsel disability and best interests suf- detainee’s friend, maintain next putative Bismullah’s the friend’s stand- perfect ficient to next ' ... only “evidence of present they need reject ing. id. We the Government’s See detainee,” the rath- authority represent sign that the detainee proposal require proposed con- than the Government’s er filing petition the authorizing a form signature. bearing the detainee’s sent form friend; a next the putative submitted counsel to They requiring argue a next into whether would-be inquiry that a detainee author- both duce evidence necessarily a matter standing friend has is behalf and to act on his izes counsel case case. to be determined filing petition a sub- of he authorizes would, next friend by a detainee’s mitted 4. Miscellaneous effect, friend cases” in “eliminate next action be- next friend requiring “that each necessary it do not believe We action.” come a direct hearings, to hold appoint special a master Whitmore, Court con- Supreme In discovery, findings make factual order 28 Congress, enacting in that the cluded pending pro we have resolved because § for a writ of (“Application 2242 U.S.C. parties. disputes cedural between We signed writing be in corpus habeas shall peti deny prejudice without therefore whose relief person for and verified special master. appoint a tioners’ motion acting in his by someone it is intended or behalf’), practice had codified the historic motion that the The Government’s petition file a “next friend” to allowing jointly the claims separately court consider prisoner. of a corpus on behalf for habeas petitioners by the seven detainee filed 162-63, 110 1717. There- at S.Ct. 495 U.S. In order to granted. v. Parhat Gates fore, later authorized Congress when Parhat Peti of each the merits evaluate the status determina- this court to review claims, separate review a we must tioner’s of a claim upon the basis tion of CSRT determi petitioner’s status' record of that [de- of an alien brought “by or on behalf Parhat Petition Accordingly, each nation. 1005(e)(2)(B), tainee],” § we under- DTA case number assigned separate er will be friend to permitted a next it to have stand briefed separately will be and each case determina- review of a CSRT petition for absent panel, a merits assigned to liti- detainee is “unable tion when the Handbook of this see further order incapaci- to mental his own cause due gate Procedures, Unit and Internal Practice court, or other similar ty, lack of access to the District Appeals Court ed States 165, Whitmore, at 495 U.S. disability.” (“[C]ases in §§ V.A. Circuit Columbia Hence, reject the Gov- 1717. we 110 S.Ct. same, similar, or related volving ... a detainee require proposal ernment’s consolidated”), III.H. issues, may be act a next friend to authorize personally to 3(b). (2007); R.App. P. Fed asserting a petitioner when on his behalf 192

III. subject interview,” Conclusion ... matter of [an] id. 543.13(d). However, posture conclude the record on We review con- these questionable cases and the applica Information, sists of the Government bility norms, of constitutional see Boume is, “reasonably all available information Bush, 981, diene v. 476 F.3d 1011 possession the U.S. Government (D.C.Cir.) J., (Rogers, bearing dissenting), on the issue of cert. whether detain- — — U.S. -, ee designated granted, meets the criteria to be 127 S.Ct. - enemy grant an combatant.” in part We (2007), L.Ed.2d add complexities. deny part, explained in this attorney-client privilege has a com opinion, petitioners’ both the and the Gov- see, basis, e.g., mon-law In Lindsey, re order; ernment’s protective motions for a (D.C.Cir.1998) F.3d (per cu- deny prejudice without petitioners’ the mo- riam), but the Constitution has been used discovery tions for appoint- and for the in various cases to enforce attorney access. master; ment of a special grant the See, e.g., Haworth, Shillinger v. 70 F.3d separately Government’s motion to consid- (10th 1132, Cir.1995); 1142 Bieregu v. brought by er the claims peti- each of the Reno, (3d 1445, 59 Cir.1995); F.3d 1459 Gates, tioners in Parhat v. No. 06-1397. Rushen, 1469, Clutchette v. 770 F.2d 1471 The Clerk of the Court will each enter (9th Cir.1985); United Noriega, States v. of these cases a Protective Order consis- 1032, (S.D.Fla.1990). 752 F.Supp. 1033 tent with the foregoing opinion assign Regardless, advocacy zealous is needed a docket separate number to each Parhat order to inform carry the court and to out Petitioner. Congress’s grant of review in the DTA.

So ordered. The court adopted has a pragmatic balance of the of needs the court and the of needs ROGERS, Circuit Judge, concurring: national as determined the Ex Today the court sets forth proce- ecutive, to whom the court See defers. to be applied dures in actions under the Op. 187-88; at see also id. at 189-90. Detainee Treatment Act of Pub.L. However, nothing in the opinion would 109-148, A, No. X, Div. tit. 119 Stat. 2739 foreclose restoration of full attorney- (“DTA”) by detainees who wish to chal- client relationship were the Executive to lenge the classification decision of a Com- determine that national security longer no (“CSRT”). batant Status Review Tribunal requires such restrictions in DTA actions I two offer observations emphasize or were the position detainees to be in a unique nature of DTA actions. jurisdiction invoke the of beyond this court First, the court sets two limitations on scope the limited of the DTA. attorney-client For rea- relationship. Second, the court has defined the scope sons of national security, the court author- in terms of plain record text of izes inspection of legal Op. mail. at the DTA Department and the of Defense’s 180,189-90. mail, turn, That is restrict- procedures. CSRT Op. See at 185-86. ined “directly substance to matters relat- Because the court’s review pre- is for “a ed” to this court’s limited of scope review ponderance evidence,” of DTA 1005(e)(2)(C); § under DTA. DTA see § 1005(e)(2)(C)(i), the 2241(e)(2); 28 record before this Op. U.S.C. at 189-90. court Ordinarily, will legal consist “all the mail is not information a screened for content prison officials, federal is authorized [CSRT] see to obtain and consid- 540.18, 540.19, er, §§ C.F.R. prison pursuant and a war- procedures specified “may den not ask the attorney to Secretary Defense,” state the Op. at To 180. available,” powers qualifies “reasonably already DTA are court’s the extent this contention, see, key the substance of CSRT point e.g., to check a Bismul- intended determinations, for re- the CSRT record lah for Petition Release and Other Relief ¶¶ It partial record. only will 165-68, 175; view Br. in Sup- Pet’rs’ Joint at least two reasons—and incomplete for Pending at port Motions cannot be possibly third. today. decided power a detainee has the Although 1. gap Congress’s aspira- 3.The between he the consideration of evidence request tions for the DTA and the Executive’s testimony of “rea may have on-hand and implementation of the CSRT witnesses, sonably he must de available” record, compiling which has come knowledge of velop this rebuttal without case, light during briefing in pres- that forms the the classified information questions ents new that also cannot be do so against him. He also must case today. initially resolved The Executive as- of counsel. Nonethe without the benefit “strong serted a curious entitlement to a less, the detainee bears the burden presumption regularity” much as is re- “enemy an that he is not combat proving agency subject ceived an administrative ant,” an proven that has to have term requirements of the Administrative Boumediene, 476 F.3d elastic nature. See Procedure Act. See Corrected Br. of J., (Rogers, dissenting); at 1011 n. 14 In Resp’ts Addressing Pending Preliminary Cases, 355 re Guantanamo Detainee 66-68; Then, Op. Motions at at 185-86. in (D.D.C. 468-72, 443, F.Supp.2d 474-75 1, post-argument a submission of June 2005). 2007, offering to “assist the Court un- con- 2. The “Government Information” derstanding process developing the the only reasonably “such available sists record,” the Executive acknowl- CSRT of the U.S. possession information the edged proce- that it has not utilized the bearing on the issue wheth- compiling for the CSRT record that dure the meets the criteria to be er detainee Department specified of Defense in its the enemy Op. designated as an combatant.” for con- publicly-announced procedures Gordon (quoting at 180 Memorandum from ducting CSRTs. See Mot. for Leave England, Secretary Navy, Regard- of the Compiling Describing File Decl. Process ing Implementation of CSRT Procedures (June 1, 2007); Record Decl. of CSRT Enemy for Combatants at Guantanamo (Retired) James M. McGar- Rear Admiral E(3) Base, Cuba, 1, § Bay Naval end. 2007).1 31, (May particular, rah In “due (hereinafter Procedures)); Pro- CSRT ef. of the responsibilities other extensive the Thus, § the initial record tective Order 2.1. ¶ Recorder,” 4, Sep- Decl. since McGarrah of the by is limited unilateral decisions 1, 2004, Department of De- tember If are documents in the Executive. there requirement fense has construed its own possession of the U.S. Government exam- that “the Recorder obtain and shall by not the Recorder and gathered were Information,” the Government CSRT ine CSRT, only by the then the considered 2, C(l), § permit Procedures end. for a detainee is to seek the recourse to be sorted and assessed evidence part documents from the Executive Recorder, “a commis- them, who must be and, upon obtaining the DTA action grade in the of 0-3 serving officer Disputes a about what sioned to seek new CSRT. 2007) (attesting to command influence Mot. Leave to File 1. See also Pet'rs’ Joint for (June compiling procedures departures Ste[ph]en from Decl. of Lt. Col. Abraham records). (June 15, 2007); Stephen CSRT Decl. of Abraham above, advocate, judge ap- general supervisory a Pursuant au- preferably CSRT,” Director, pointed by end. thority id. good of the and for cause Writer,” 1, C(2), § rather a “Case but shown, approximately

who two weeks of “received IT ORDERED: IS ¶ training,” Decl. 5. McGarrah General Provisions designed the DTA was Inasmuch as action, congressional “legitimiz[e], through The court finds that this case involves what the Administration has done at Guan security classified national (Oct. Bay,” Cong. tanamo Rec. S11073 documents, storage, handling 2005) (statement Graham), Sen. require special and control of which regarding Executive’s belated revelation security precautions, and access to proceedings record used CSRT requires security which clearance relevant, it unsettling. As leaves undeter and a “need to know.” This case in a posi mined whether the court will be protected also involve other informa- evaluation, tion to conduct the substantive documents, storage, tion or han- directs, as the DTA of whether a chal dling and control of which re- lenged supported CSRT determination is quire special precautions in order to evidence, preponderance see protect of United States 1005(e)(2)(C)(i). DTA The Executive facilities, personnel and sig- and other previously argued has to this court nificant interests. process in the DTA CSRT was de purpose td The of this Protective Order signed an adequate replacement for the is to establish the corpus, writ of Supplemental habeas see Petitioner, must be followed Peti- Br. of Addressing the Federal Parties Counsel, tioner’s and all other individ- 49-53, Act Detainee Treatment at uals who receive access to classified Bush, (2007). Boumediene v. 476 F.3d 981 documents, information or or other Revelations that evidence is summarized “research, collection, protected documents, by anonymous an information or and ¶ team,” case, coordination McGarrah Decl. in including connection with this (DoD) whose activities have left “some of Department the[] of Defense ¶ 16, corrupted,” electronic files ... id. Privilege Team. adequacy

reinforce concerns about the O in set forth this Pro- actions under the DTA as a substitute for tective will apply aspects Order to all corpus. the writ of habeas See Boume case, of this and be modified diene, J., (Rogers, at F.3d 1004-07 further order of the court sponte sua dissenting). or upon application by any party. continuing juris- The court will retain PROTECTIVE ORDER diction modify to enforce or the terms This matter upon comes before the court of this Order. parties’ protective motions for a order in Nothing this Order is intended to prevent the unauthorized disclosure or or preclude does the use of classified dissemination of classified national information the Government as protected and other informa- otherwise authorized law outside of by, tion that be reviewed made avail- this action under the Detainee Treat- to, able or in possession is otherwise Act. ment of, the Petitioner or Petitioner’s Counsel case, this Petitioner’s Counsel of upon and the Government’s record is re- mo- tion to sponsible amend the initial Protective advising part- Order. his or her associates,

ners, employees, purposes on behalf of a Detainee for and Petitioner, of the contents representing and others Detainee this Order, appropri- of this Protective co-counsel, litigation, as well as inter- ate or needed. translators, preters, paralegals, inves- all classified, tigators, personnel other or All marked as F. documents therein, support employed engaged staff or contained re- and information litigation. unless the documents assist main classified they a clear indication that have bear herein, D. As used the words “docu- declassified or to be been determined include, ments” and “information” but agency depart- unclassified or to, print- are not limited all written or original ment that is the classification kind, any ed matter of formal or infor- or authority of the document mal, including originals, conforming information contained therein. copies non-conforming copies of this Protective Order Any G. violation (whether original different from the contempt. in a sanction for may result by reason of notation made on such otherwise), in- copies or and further Security Designation 2. of Court Offi- clude, but are not limited to: cer memoranda, papers, correspondence, i. E. designates The court Christine Gun- notes, letters, summaries, reports, (“CSO”) Security Officer ning as Court charts, photographs, maps, graphs, cases, Camp- and Jennifer H. for these interoffice and intraoffice communi- bell, B. Hogarty, Kennedy, Erin E. Joan cations, con- notations of sort DaSilva, A. Nathaniel A. John- Charline conversations, cerning meetings, or Hartenstine, son, Daniel Michael P. O. communications, bulletins, other tele- Macisso, Londergan, P. Barbara James telefacsimiles, telegrams, in- types, Miguel A. Ferrer as Al- J. Russell voices, worksheets; drafts, alter- CSOs, purpose provid- ternate for the ations, modifications, changes and necessary to ing security arrangements thereto; amendments of kind protect from unauthorized disclosure information, classified documents represen- ii. oral graphic or records information, protected or documents or kind, any including, tations of but available in connection with to be made charts, to, photographs, not limited these cases. Petitioners’ Counsel must microfiche, microfilm, video- graphs, from with re- guidance seek the CSO kind, recordings any of tapes, sound storage, handling, gard appropriate pictures; and motion transmittal, docu- and use of classified electronic, iii. mechanical or electric ments or information. kind, any including, but records cassettes, to, tapes, limited Definitions 3. mail, disks, recordings, electronic A. means an alien detained “Detainee” ribbons, films, typewriter word alleged enemy as an combat- the DoD tapes or cessing computer or other ant at the Naval Base at Guantá- U.S. disks, manner electronic and all Bay, namo Cuba. storage; and processing data Detainee or a B. “Petitioner” means a orally. acquired iv. acting “next friend” on his behalf. and “classified documents” E. The terms includes a law- “Petitioner’s Counsel” C. refer to: “classified information” yer employed or retained or who is facilities, any personnel i. document or information that ernment or or oth- by any has been classified Executive significant government er interests. Branch in the agency interests G. “Access to classified information” and Ex- pursuant national or “access to protected information” Order, including ecutive Executive to, having reviewing, mean access amended, pre- or its Order as reading, learning, or coming otherwise Orders, as “CONFIDEN- decessor any to know in any manner classified TIAL,” “SECRET,” or “TOP SE- protected information or information. CRET,” additionally or controlled as F. “Communication” means all forms of “SENSITIVE COMPARTMENTED communication between Petitioner’s (SCI),” any or INFORMATION Detainee, Counsel and a including classified information contained oral, written, electronic, by any or oth- document; such er means. information, ii. document or re- “Legal only I. Mail” consists of docu-

gardless physical of its characteris- ments and drafts of documents that tics, formerly posses- now or in the are filing intended for in this action private party sion has been correspondence directly related to derived from United States Govern- those documents that- ment information that was classi- fied, regardless of whether such directly i. relate to the litigation of this document or information has subse- action; quently been classified the Gov- (a) only ii. address leading up events ernment pursuant to Executive Or- capture of the Detainee on der, including Executive Order petition whose behalf the in this ac- amended, predeces- or its (b) filed, tion was events occurring Orders, “CONFIDENTIAL,” sor capture between such Detainee’s “SECRET,” SECRET,” or “TOP or any hearing before a Combatant additionally controlled as “SENSI- (CSRT) Status Review Tribunal re- TIVE COMPARTMENTED IN- (c) Detainee, lating to such (SCI)”; FORMATION conduct of the CSRT proceeding re- iii. oral or nondocumentary classified Detainee; lating to such information known to the Petitioner iii. do not include following Counsel; or Petitioner’s information, form, unless di- iv. any document or information as to rectly litigation related to the which the Petitioner or Petitioner’s this action: orally Counsel has been notified a. information relating any ongo- in writing that such document or ing completed military, or intelli- information contains classified infor- gence, security, or law enforce- mation. operations, ment investigations, or F. “protected The terms documents” and arrests, or the results of such ac- “protected any information” refer to tivities, by any agency; nation or document or information by deemed b. relating po- information to current court, upon application by either litical in any country; events sponte, Government or sua to re- c. quire relating security special precautions storage, handling, control, in pro- order to at the Guantánamo tect of United (including States Gov- Naval Base names of per- close communication from Petition- States Government

United er’s layout camp of fa- Counsel the Detainee other sonnel and the cilities) provided filing than information in a the status of other De- or with the court tainees; and served on Govern- counsel, ment unless the disclosure articles, reports, or publications, d. such information is by authorized including such material other or another order of the court or and other media arti- newspaper Petitioner’s Counsel. brochures, cles, pamphlets, Privilege may B. The DoD Team redact publications nongovernmental or out meeting screen material not or advocacy organizations, or “Legal definition of Mail” in section material. descriptions such 3(1) above. The “Record on Review” means the J. Privilege C. When the DoD Team

information defined as “Government poses to redact or screen out material Secretary Information” of the sent from Petitioner’s Counsel to a Navy regarding in his memorandum Detainee, Petitioner’s Counsel for “Implementation of Combatant Status Detainee must be notified. Review Tribunal Procedures” dated wit, “reasonably July all D. In dispute regarding the event a possession screening available information redaction material bearing on the mail legal of the U.S. Government from sent from Petitioner’s of whether the detainee meets Counsel to a Detainee cannot issue be re- parties an solved and Petitioner’s designated the criteria to be seeks Counsel the intervention of this enemy combatant.” Privilege may the DoD Team physical K. area” means a facili- “Secure disclose the material at issue to the ty or for the stor- approved accredited Commander, JTF-Guantánamo Naval age, handling, and control classified Base, representatives, including his or information. counsel for the Government. 4. Roles and Functions DoD “Special Litigation E. Team” is author- Special Litiga- Privilege Team and represent Privilege the DoD ized tion Team with of its respect Team execution Special Litigation duties. The Team Privilege comprises A. Team” The “DoD composed will of one or more attor- attorneys and one or more DoD one Justice, neys Department from the intelligence or more or law enforce- part who not take or be involved If DoD personnel. required, ment litigating the merits of this action Privilege interpret- Team include the Detainee Treatment Act or under Privilege The DoD ers/translators. brought by against other case charged representing Team is the Detainee. protecting the interests may, Privilege F. The DoD Team Government related to United States Litigation Team through Special security and threat information. The 4(H) (see below), inform the court of Privilege DoD Team is authorized to problems related to the issues specified in review all communications processing or of information release order, including written communi- this related to this case. from cations and other materials sent may Litigation Team not Special to the Detainee. G. The Petitioner’s Counsel information provided by may not disclose Privilege The DoD Team dis- may informa- tioner’s Counsel have access to Privilege DoD Team or by Petitioner’s classified information involved in tion submitted Counsel review, Privilege Team for this case. to the DoD by this Order or as except provided presumed B. Petitioner’s Counsel is or by Petitioner’s Counsel permitted have a “need to know” all the informa- by the court. possession tion the Government’s Special or the H. Petitioner’s Counsel concerning repre- the Detainee he Litigation may filings Team submit presumption sents. This is overcome concerning the DoD Privi- the court to the extent the Government seeks by taken it. lege Team or actions from withhold Petitioner’s Counsel notified, highly sensitive information or infor- potentially I. Until otherwise concerning highly mation filings in such sensitive privileged information presents source that the Government submitted to the court under must be parte to the court ex and camera. conspicuous seal and contain a notation shown, Except good cause as follows: “Submitted Under Seal- provide Government must notice to Privileged Contains Information.” To seal, day on Petitioner’s Counsel the same maintain such information under it information application files such with the court appropriate an must be parte. ex made to the court. Such must be maintained under seal unless provided C. Petitioner’s Counsel to be until in- the court determines the access to classified information must formation should not sealed. be Such execute the Memorandum of Under- by filings Petitioner’s Counsel or the (“MOU”) standing appended to this Special Litigation may Team not be Order, origi- Protective file executed on for respondent, served counsel ex- copies nals with the and submit cept as authorized Petitioner’s CSO counsel for the Gov- or the court. respect Counsel With ernment. The execution and submis- seal, a submission made under re- prece- sion of MOU is condition dacted version filing suitable for dent for Counsel to have Petitioner’s public record provided. must be Un- initial continuing access to classi- disputes concerning resolved such re- purposes fied information for the presented dacted versions be proceeding. the court. substitution, D. departure, or remov- convey J. Petitioner’s Counsel al of Petitioner’s Counsel from these a Detainee information redacted or cases for reason will not release Privilege screened the DoD Team person provisions from the of this designated or for such redaction or Protective Order the MOU execut- screening, absent consent from the ed in connection this Order. Team, Privilege DoD Liti- Special E. Authorization from the Government to Team, Government, gation or the access classified information will not authorization this court. granted to Petitioner’s un- Counsel less Petitioner’s Counsel has first: 5. Access to Classified Information Documents necessary i. received the A.Without authorization from Gov- clearance as determined the De- ernment, Justice; partment neither Petitioner nor Peti- (a) written evidence L. Petitioner’s Counsel required ii. obtained either to the Detain- authority represent to treat all information learned from a (b) authority evidence of to Detainee, ee or including any oral or written through the represent the Detainee Detainee, communication with a as friend; next Detainee’s information, classified unless and until signed iii. the MOU attached hereto as the information is submitted to the A, agreeing comply to

Exhibit Privilege DoD Team or counsel for the terms of this Protective Order. the Government and determined to be All nonclassified. classified material Prospective F. counsel for Detainee handled, transported, must be to with a may up have two visits De- manner, stored in a provid- secure tainee to obtain his authorization to ed Executive Order DOD determina- seek review CSRT’s Regulation 5200.1-R and AI OSD tion of his status. Security Supplement Information substitution, departure, G. The or remov- Regulation DOD 5200.1R. al Petitioner’s from this Counsel any will not case for reason release M. Petitioner’s Counsel or the DoD Priv- person from the of this provisions ilege Team must disclose to Govern- Protective Order. Commander, ment counsel or JTF- Base, any Guantánamo Naval infor- herein, Except provided H. Petition- mation learned from Detainee in- may any er’s Counsel disclose volving any future event that threat- protected or information to classified likely ens national or is any person. may Petitioner’s Counsel case, In involve violence. such protected in- not disclose classified or Privilege provide Team must contem- Detainee, formation to a unless that poraneous notice to Petitioner’s Coun- in the information was obtained first and retain sel for Petitioner’s Counsel instance from the Detainee. copy provided of the material I. disclosure of classified information in- Commander, Government counsel or willful, any knowing, negli- cludes or Naval Base. JTF-Guantánamo gent reasonably action that could may in a expected to result communication N. Petitioner’s Counsel not disclose physical any or transfer of classified infor- the contents of classified docu- any person, mation. ments or information to except pursuant those authorized J. Neither Petitioner nor Petitioner’s Order, court, and this Protective may disclose or cause to be Counsel counsel for the Government with the in connection with this case disclosed appropriate clearances the need any or information known believed know that information. except be classified as otherwise vided herein. O. In the event that classified informa- domain, public enters the counsel tion time, anytime K. including At no subse- making private from precluded is not case, quent to the conclusion of this the infor- public statements about Petitioner’s make Counsel domain, already public mation in the disclosing public private statements are not only where the statements avail- but classified information made subject to the limitation set forth be- pursuant able to this Protective Or- any pub- der, low. not make including the fact that such Counsel revealing private lic or statements information is classified. in accommo- the secure area order to knowledge non-public from personal or regarding the classified to all Petition- appropriate sources date access or of the information protected status proceed- in this and other ers’ Counsel personal counsel had disclosing that ings. protected or infor- to classified access provided by All information C. classified contradicting, or confirming, mation the Government Petitioner’s Coun- relating to the information otherwise sel, all classified information oth- In an already public in the domain. by possessed erwise or maintained Pe- help and to en- of caution abundance stored, Counsel, titioner’s must be matter, the court clarity on this sure maintained, only in the se- and used counsel must not be emphasizes cure area. protect- classified or the source of containing D. No classified in- documents public do- entering ed may formation be removed from the main. secure area unless authorized prohibit Peti- foregoing

P. The does not designee supervising or CSO CSO repeat- citing tioner’s from or Counsel area. public in the domain ing information provisions E. Consistent with other not that Petitioner’s Counsel does Order, this Protective Petitioner’s to believe to know or have reason be Counsel will have access to the classi- or a classified classified information fied information made to him document, available or derived from classified in al- information or classified document. or her the secure area and be prepare lowed to take notes and docu- Storage of 6. Classified Infor- Secure respect ments with those materials. mation may copy F. Petitioner’s Counsel or arrange appro- A. The CSO will for one reproduce any classified information area for the use of priately secure form, except approval with the Counsel. The secure area Petitioner’s of the CSO or accordance with the working must contain a area that will procedures established CSO supplied equip- be with secure office operation of the secure area. necessary ment reasonable and All prepared G. documents Petition- preparation of the Petitioner’s case. er’s Counsel do contain Expenses for the secure area and its information (including classified with- equipment will be borne Gov- out limitation notes taken and memo- ernment. prepared by plead- randa counsel and B. procedures The CSO will establish ings and other documents intended for ensure the secure area is accessi- court) filing with the tran- must be during ble to Petitioner’s Counsel nor- scribed, recorded, typed, duplicated, mal at business hours and other times copied, prepared only and otherwise request approved by on reasonable by persons ap- who have received an The CSO will establish CSO. propriate approval for access to classi- to ensure that the area cedures secure fied information. Such activities must maintained and operated place in the ap- take secure area on the most efficient manner consistent equipment proved processing word protection of classified infor- and in accordance with the mation. The designee CSO CSO approved by the All such docu- CSO. may place necessary reasonable and restrictions on the schedule of use of ments and associated materials (such information K.As stated more detail in Section 9 containing classified below, memoranda, drafts, notes, comply failure to with these copies, as ribbons, may rules result in the revocation record- magnetic typewriter clearance, exhibits) counsel’s civil lia- must be maintained in ings, bility, criminal liability, any or combi- until area unless and the secure nation thereof. or that those documents CSO advises materials are unclassified associated 1. Access to Protected Information entirety. None of these mate- in their A. may apply The Government for may rials be disclosed to counsel any “pro- court to deem information by unless authorized the Government tected,” if filed in this court to be Counsel, court, by Petitioner’s or maintained under seal. Such informa- provided in this Protec- as otherwise tion must be maintained under seal tive Order. unless and until the court determines may discuss H. Petitioner’s Counsel clas- desig- the information should not be only information within the se- sified “protected.” nated as cure area or in another area author- B. Without authorization from the Gov- CSO, by may not discuss ized court, protected ernment or the infor- any classified information over stan- may mation not be disclosed or dis- instru- telephone dard commercial any person entity tributed to or other intercommunication ment or office than following: may not transmit or dis- system, and i. Petitioner’s Counsel and counsel in electron- cuss classified information by protective bound the terms of this any ic mail communications of kind. in a order case filed on behalf of designee may I. The or CSO not CSO seeking Detainee un- another review any person any reveal to the content of Act, der the Detainee Treatment may she or he hear conversations support personnel, ii. the court its Counsel, among or Petitioners’ nor re- being veal nature of documents if iii. a Detainee the information was them, gener- or the work reviewed in the first instance from obtained them, necessary except ated the Detainee. Protective report violations of this Or- carry court or to out their der to the Neither Petitioner nor Petitioner’s C. In ad- pursuant may duties this Order. disclose or cause Counsel dition, presence of the CSO or information known or disclosed designee operate protected will not to be connection CSO believed of, limit, or otherwise in this any hearing proceeding waiver render or attorney-client privi- provided inapplicable except case as otherwise lege product protections. or work herein. time, including any period D. At sub- containing All classified in- no

J. documents sequent to the conclusion prepared, possessed formation or to, ceedings, Petitioner’s Counsel by, provided maintained Peti- statements any public private make (except filings tioner’s submit- Counsel information disclosing any protected court and served on counsel ted to the Pro- Government), pursuant available to this remain at made for the must Order, including the fact that tective in the control of the CSO for all times protected. information is such the duration of these cases. Filing be used 8. Procedures for Documents E. Protected directly related to only purposes for court, any A. further Until order litiga- other this case pleading or other document filed except by leave of Petitioner that Petitioner’s proceeding, tion or Counsel does not contains in- believe classified Photocopies of documents the court. must be “Pending formation marked may containing such information be Review,” directly Classification filed necessary only made to the extent to immediately with the hereunder. permitted facilitate the use upon served Government counsel. pre- in Nothing F. this Protective Order accept Government counsel must ser- using from for vents the Government via or overnight vice hand mail. any purpose protected information it Counsel for the Government must provides party. Nothing to a promptly examine the pleading or oth- a nonparty Protective Order entitles er document and forward it to the protected to to this case information. appropriate agencies for their deter- pleading mination whether the or oth- (90) ninety days of the resolu- G. Within er document contains classified infor- and the termination tion of this action mation. The court will secure the therefrom, any certiorari all review document until such a determination information, protected documents is rendered. If it is determined thereof, any copies provided pleading or other document does promptly must be Petitioner’s Counsel information, not contain classified destroyed and Petitioner’s Counsel promptly Government counsel will so certify writing desig- must that all notify the court and Petitioner’s Coun- nated documents and materials have sel. Should determination be made destroyed. been for the Gov- Counsel pleading or other document may complete ernment retain one set information, contains classified Gov- any pre- such materials that were ernment counsel will immediately noti- in any Any sented form to the court. fy the court of the determination so may such retained that the document be filed materials must be under seal and maintained appropriately. placed in an envelope envelopes notify Government will counsel also marked “Protected Information Sub- Petitioner’s Counsel and the CSO. The ject to Protective In Order.” sub- CSO will work with Petitioner’s Coun- sequent proceeding, or collateral sel to ensure that classified infor- may party discovery seek of such ma- mation that have been inadver- Government, terials from the without tently processed outside of the secure prejudice right to the Government’s facility appropriately secured. Gov- oppose discovery ability such or its ernment counsel will work with the dispose pursuant materials appropriate government agencies and general its poli- document retention departments prepare a redacted cies. pleading version or other docu- H. The Record on Review must be appropriate filing ment on the public record.

vided to at Petitioner’s Counsel time the certified index of the record Any pleading B. or other document filed is filed this court or as otherwise Petitioner Petitioner’s Counsel classified, ordered the court. knows believes be classified, proper Any pleading C. or other document or is unsure filed classification, must be filed under seal containing classi- facility. at the secure with the CSO fied information must be filed under must pleading The or other document through seal with the court the CSO. secret” as “top be marked “secret” The date and physical time of submis- will Petitioner’s appropriate. Counsel sion to the CSO will be considered the original pleading and six provide the filing date and time of with the court. copies thereof to the CSO. The date must a copy CSO serve physical time of submission to the pleadings by classified the Govern- the date and will be considered CSO upon ment the Petitioner at the secure filing. time of The CSO must immedi- (cid:127) facility. ately email the court’s Guantanamo filing

Notification List that a has been 9. Penalties for Unauthorized Disclo- will then deliver received. CSO sure for to the court and counsel the Gov- Any A. disclosure of classified informa any pleading ernment or other docu- may tion in violation of this order that ment filed Petitioner contains constitute violations of United States presumptively classified classified or addition, In criminal laws. viola promptly information. The CSO must tion of the terms of this Protective pleading examine the or other docu- immediately brought Order must be appropri- ment and forward it to the may the attention of the court and government agencies depart- and ate charge contempt result in a of court ments for their determination as to possible and referral for criminal pleading or other docu-

whether See, e.g., Executive Or prosecution. ment contains classified information. Any der as amended. breach If it or pleading is determined that of this Protective Order also re in- other document contains classified sult in the termination of access to formation, the CSO must ensure that protected classified information and ap- the document is marked with the subject information. Persons to this propriate marking classification Protective Order are advised di that the document remains under seal. rect or indirect unauthorized disclo counsel will work with Government retention, sure, negligent handling or government agencies appropriate of classified documents or information departments prepare or a redacted damage could to the national cause or docu- pleading version of other security of the United States and appropriate filing ment on the advantage be used to the of an adver If it public record. is determined sary against of the or United States pleading or other document does the interests United States. information, contain not classified subject this Protective Or Persons promptly counsel will so Government der are also advised that direct or notify the court and Petitioner’s Coun- disclosure, re indirect unauthorized sel, par- and the Clerk will direct the tention, handling pro negligent or public ties to file a version without tected or information could documents markings. Any classification deliber- security of Gov risk the United States mishandling of classified informa- ate personnel, ernment United States tion could result in the revocation of facilities, clearance, sig and other1 Government counsel’s sanction in nificant by the or both. United States to thorized the Protective Order entered This Protective Order is terests. captioned_ authorized to re in the case ensure that those protect or ceive classified information (2) agree I this Memorandum of divulge ed information will Understanding other non-disclo- au anyone who is not remain agreement signed sure me will it, prior to receive without thorized binding on me. forever original authorization from the written (3) received, read, I have and under- authority con classification stand the Protective Order entered formity this Protective Order. captioned court case proceedings of these B. The termination __, I agree comply any person party will not relieve provisions with the thereof. provided classified information his, her, tected information of or its this Protective

obligations under Or-

der.

Exhibit A

MEMORANDUM OF UNDERSTAND-

ING REGARDING ACCESS TO CORPORATION, EXXON MOBIL CLASSIFIED NATIONAL SECURI- Petitioner TY INFORMATION myself Having ap- familiarized with the v. statutes,

plicable regulations, and orders FEDERAL ENERGY REGULATORY to, to, limited related but not unauthorized COMMISSION and United States information, espio- disclosure of classified America, Respondents Of offenses; nage and related The Intelli- Act, gence Identities Protection 50 U.S.C. Corporation, Anadarko Petroleum 421; 641; 783; § § 18 U.S.C. 50 U.S.C. al., et Intervenors. § 17 seq.; 28 C.F.R. et and Executive 05-1299, 05-1300, Nos. 05-1301. 12958, I that I may Order understand recipient of information or documents Appeals, United States Court belong to the United States and con- District of Columbia Circuit. present cern the and future Argued Dec. 2006. States, United and that such documents July together Decided 2007. methods collecting and sources of it are classified

by the United States Government. In con- for the

sideration disclosure classified

information or documents:

(1)I agree divulge, that I never will word, conduct,

publish, or reveal either other means such classified docu- specifically

ments and information unless writing

authorized in to do so an au- representative

thorized of the United Government, expressly or as au-

States

Case Details

Case Name: Bismullah v. Gates

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

Date Published: Oct 23, 2007

Citation: 501 F.3d 178

Docket Number: 06-1197, 06-1397

Court Abbreviation: D.C. Cir.