No. 07-1054
In the Supreme Court of the United States
ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
PETITIONERS
v.
HAJI BISMULLAH, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
JONATHAN F. COHN
Deputy Assistant Attorney
General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
DOUGLAS N. LETTER
ROBERT M. LOEB
AUGUST E. FLENTJE
CATHERINE Y. HANCOCK
JENNIFER PAISNER
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
The Department of Defense has held military hear ings using Combatant Status Review Tribunals (CSRTs) to determine whether foreign nationals captured abroad by the United States during the war on terror and de tained at the Guantanamo Bay Naval Base in Cuba are properly designated as enemy combatants. In prepara tion for each CSRT hearing, a military officer examined material from a variety of government agency files and presented a subset of that material to the CSRT. The CSRT considered that evidence, along with the de tainee's evidence, in determining whether the detainee is an enemy combatant. A final decision of a CSRT may be reviewed exclusively in the United States Court of Appeals for the District of Columbia Circuit under the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, § 1005(e)(2), 119 Stat. 2739. The adequacy of the procedures established by the DTA is currently pen ding before this Court in Boumediene v. Bush, No. 06- 1195 (argued Dec. 5, 2007), and Al Odah v. United States, No. 06-1196 (argued Dec. 5, 2007). The question presented in this case is:
Whether, in an action brought under the DTA, the record for judicial review of a CSRT determination con sists of the material presented to and considered by the CSRT, or whether it extends to the much broader cate gory of all reasonably available information in the pos session of the United States government bearing on the issue of whether the detainee is an enemy combatant, regardless of whether the material was actually pre sented to or considered by the CSRT.
PARTIES TO THE PROCEEDING
The petitioners are Robert M. Gates, Secretary of Defense; Harry B. Harris, Admiral, United States Navy; and Wade F. Davis, Colonel, United States Army.
The respondents are Haji Bismullah, a/k/a Haji Bis millah, a/k/a Haji Besmella; Haji Mohammad Wali, act ing as next friend of Haji Bismullah; Huzaifa Parhat; Abdusabour; Abdusemet; Hammad; Jalal Jalaldin; Kha lid Ali; and Sabir Osman.
In the Supreme Court of the United States
No. 07-1054
ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
PETITIONERS
v.
HAJI BISMULLAH, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the Secretary of Defense and the other federal petitioners, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a- 54a) is reported at 501 F.3d 178. The supplemental opinion of the court of appeals on petition for panel re hearing (App., infra, 55a-66a) is reported at 503 F.3d 137.
JURISDICTION
The judgment of the court of appeals was entered on July 20, 2007, and was amended on October 23, 2007. A petition for rehearing was denied on February 1, 2008 (App., infra, 67a-102a). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED
Pertinent provisions are reprinted in the appendix to the petition (App., infra, 103a-112a).
STATEMENT
1. Following the 9/11 attacks, the President-with the backing of Congress, see Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224-or dered United States Armed Forces to subdue both the al Qaeda terrorist network and the Taliban regime har boring it in Afghanistan. Although our troops have re moved the Taliban from power, armed combat with al Qaeda, the Taliban, and associated forces remains ongo ing. In connection with those conflicts, the United States has seized many hostile persons and detained a small fraction of them as enemy combatants. Approxi mately 275 of these enemy combatants are being held at the United States Naval Base at Guantanamo Bay, Cu ba. Each of them was captured abroad and is a foreign national.
2. With the exception of a handful of newly-arrived detainees, every Guantanamo Bay detainee has received a hearing before a military Combatant Status Review Tribunal (CSRT). CSRTs are designed "to determine, in a fact-based proceeding, whether the individuals de tained * * * are properly classified as enemy combat ants and to permit each detainee the opportunity to con test such designation." App., infra, 121a. An "enemy combatant" is defined as "an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." Id. at 124a.
During the CSRT proceedings, each detainee re ceived procedural protections modeled on-and, indeed, exceeding-the procedures used by the Army for deter mining the status of detainees under the Geneva Con vention. Compare U.S. Dep't of the Army et al., Regula tion 190-8, Enemy Prisoners of War, Retained Person nel, Civilian Internees and Other Detainees (Nov. 1, 1997) <http://usapa.army/mil/ pdfiles/r190_8.pdf> (im plementing Article 5 of the Third Geneva Convention), with App., infra, 113a-168a (CSRT procedures); see also U.S. Br. at 48-53, Boumediene v. Bush and Al Odah v. United States, Nos. 06-1195 & 06-1196 (argued Dec. 5, 2007).
CSRT procedures provided for each detainee to re ceive notice of the unclassified factual basis for his des ignation as an enemy combatant and to be afforded the opportunity to testify, to call relevant and reasonably available witnesses, and to present relevant and reason ably available evidence. App., infra, 121a. CSRT proce dures also ensured that each detainee was assigned a military officer to serve as his "personal representative" to assist him by "explain[ing] the nature of the CSRT process," "explain[ing] his opportunity to personally appear before the Tribunal and present evidence," and "assist[ing] [him] in collecting relevant and reasonably available information and in preparing for and present ing information to the CSRT." Id. at 132a-133a.
A military officer also served as the recorder for each CSRT. The recorder was charged with presenting evidence to the CSRT regarding whether the detainee should be designated as an enemy combatant, including any evidence suggesting that the detainee should not be so designated. App., infra, 137a-138a. Specifically, CSRT procedures required the recorder to "obtain and examine the Government Information" to determine what materials should be presented to the CSRT. Id. at 145a. "Government Information" includes
all reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be desig nated as an enemy combatant, including information generated in connection with the initial determina tion to hold the detainee as an enemy combatant and in any subsequent reviews of that determination, as well as any records, determinations, or reports gen erated in connection with such proceedings.
Id. at 129a. From that information, the recorder ex tracted the "Government Evidence" to present to the CSRT, which includes "such evidence in the Government Information as may be sufficient to support the de tainee's classification as an enemy combatant" as well as any evidence that "suggest[ed] that the detainee should not be designated as an enemy combatant." Id. at 137a- 138a, 143a-144a. In advance of the CSRT hearing, the recorder prepared an unclassified summary of the Gov ernment Evidence and provided it to the detainee's per sonal representative. Id. at 144a.
In searching for and gathering material for the CSRTs, recorders relied most heavily on the two gov ernment databases most likely to contain information pertaining to detainees, the Joint Detainee Information Management System and the I2MS system. App., infra, 230a-232a. Those databases contain disseminated intel ligence reports from other agencies, interrogation re ports, and law enforcement records. Ibid. Given the scope and reliability of the material contained within those databases, they generally yielded the vast major ity of any Government Information about a detainee. Id. at 231a. Nonetheless, when material found in the two key databases suggested other sources of information to a recorder, the recorder pursued those sources of infor mation to ensure that there was no other relevant, nonduplicative material to present to the CSRT. Ibid. If the additional information a recorder sought was sen sitive classified information held by an intelligence agency, he was permitted to view the agency's files, but the files remained in the possession of the agency. See id. at 232a-233a.
Each CSRT hearing was presided over by "three neutral commissioned officers" who were not involved in the "apprehension, detention, interrogation, or previous determination of status of the detainee." App., infra, 114a-115a, 125a. Those officers reviewed the evidence presented by the recorder and the detainee, using a "rebuttable presumption * * * that the Government Evidence * * * is genuine and accurate," "deter mine[d] whether the preponderance of the evidence support[ed] the conclusion that [the] detainee m[et] the criteria to be designated as an enemy combatant," and "ma[de] a written assessment as to [the] detainee's sta tus." Id. at 125a, 136a.
After each detainee's hearing, the recorder prepared and preserved the record of proceedings, which con sisted of all the documentary evidence presented to the tribunal, the transcript of all witness testimony, a writ ten report of the tribunal's decision, and an audio re cording of the proceedings (except proceedings involving deliberation and voting by the members). App., infra, 140a-141a; see id. at 141a (stating that this material "constitute[d] the record" of each detainee's proceed ing). Recorders did not, however, prepare a single file containing all of the information they examined for a de tainee's case or memorializing their thought processes in determining which leads to pursue in gathering the evidence to present to the CSRTs. Id. at 216a-217a.
Each CSRT determination was subject to mandatory review first by the CSRT Legal Advisor and then by the CSRT Director, both of whom utilized the record compiled by the recorder to assess the legal sufficiency of the CSRT determination. App., infra, at 127a, 141a- 142a. After those reviews, a CSRT determination was considered "final." Id. at 143a.
In addition to the CSRT review process, the Depart ment of Defense also conducts an annual administrative examination of whether it is appropriate to release or transfer any enemy combatant. See Paul Wolfowitz, Deputy Secretary of Defense, Administrative Review Board Procedures for Enemy Combatants in the Con trol of the Department of Defense at Guantanamo Bay Naval Base, Cuba (May 11, 2004) <http://www.defense link.mil/news/May2004/ d20040518gtmo review.pdf>. In addition, even after a final CSRT determination, a de tainee or a person acting on his behalf may submit new evidence relating to the detainee's enemy combatant status at any time, and if that evidence is material, a new CSRT will be convened to consider it. App., infra, 179a-180a.
3. Congress provided a mechanism for federal judi cial review of final CSRT determinations in the Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148, § 1005(e)(2), 119 Stat. 2739. Section 1005(e)(2) of the DTA provides that the Court of Appeals for the District of Columbia Circuit "shall have exclusive jurisdiction to determine the validity of any final decision of a Combat ant Status Review Tribunal that an alien is properly detained as an enemy combatant." DTA § 1005(e)(2)(A), 119 Stat. 2742. The scope of that review is limited to assessing (1) whether the final CSRT decision "was con sistent with the standards and procedures specified by the Secretary of Defense," including "the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence," and (2) "to the extent the Constitution and laws of the United States are appli cable, whether the use of such standards and proce- dures to make the determination is consistent with the Constitution and laws of the United States." DTA § 1005(e)(2)(C), 119 Stat. 2742.
At the same time, Congress amended the federal habeas corpus statute to remove federal-court jurisdic tion over habeas corpus petitions filed by detainees. See DTA § 1005(e)(1), 119 Stat. 2742. Congress reiterated and extended that jurisdictional limitation in the Mili tary Commissions Act of 2006 (MCA), Pub. L. No. 109-366, § 7(a), 120 Stat. 2636, providing that "[n]o court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus" filed by a Guantanamo Bay detainee, or have jurisdiction over "any other action" brought by a detainee "against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of con finement," except an action authorized in Section 1005(e) of the DTA. See Boumediene v. Bush, 476 F.3d 981, 987 & n.3 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (2007).
4. Numerous detainees have challenged the MCA's removal of federal-court jurisdiction over habeas peti tions filed by Guantanamo Bay detainees and the ade quacy of the judicial review of CSRT determinations available under the DTA and MCA. The District of Co lumbia Circuit rejected those challenges, Boumediene v. Bush, 476 F.3d 981 (2007), and this Court granted cer tiorari. Boumediene v. Bush, 127 S. Ct. 3078 (2007). Boumediene and its companion case, Al Odah v. United States, were argued on December 5, 2007, and are cur rently pending before this Court. Boumediene v. Bush, No. 06-1195 (argued Dec. 5, 2007); Al Odah v. United States, No. 06-1196 (argued Dec. 5, 2007). In its order granting certiorari in Boumediene and Al Odah, this Court noted that "it would be of material assistance to consult any decision" by the court of appeals in the pres ent case. 127 S. Ct. 3078.
5. Respondents are foreign nationals captured abroad and detained at the naval base at Guantanamo Bay. App., infra, 3a. Each of them has been adjudi cated by a CSRT to be an enemy combatant. Id. at 2a- 3a. Respondents sought review of their CSRT determi nations in the court of appeals under the DTA and re quested wide-ranging discovery. Ibid. In order to eval uate respondents' discovery requests, the court of ap peals-in the wake of its decisions upholding the MCA and DTA in Boumediene and Al Odah-determined that it was required to define "the record to which th[e] court must look as it reviews a CSRT's determination" and ordered briefing and argument on that question. Id. at 10a.
On July 20, 2007, the court of appeals issued a deci sion holding that the record on review "consists of all the information a Tribunal is authorized to obtain and consider," "hereinafter referred to as Government In formation and defined by the Secretary of the Navy as such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant." App., infra, 2a (internal quotation marked omitted); see id. at 38a. That is, the court de fined the record for judicial review to include not only the evidence presented to and considered by the CSRT, but also every piece of potentially relevant, reasonably available information the recorder examined while iden tifying the materials to present to the CSRT. Id. at 2a, 12a-13a. The court then adopted a "presumption * * * that counsel for a detainee has a 'need to know' the clas sified information relating to his client's case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information." Id. at 3a.
The court of appeals provided two reasons for its holding. First, it stated that production of all Govern ment Information was necessary to ensure that the re corder did not withhold any exculpatory information from the CSRT. App., infra, 13a-14a (reasoning that, unless the detainees' counsel had access to all informa tion in the government's possession, there would be "no * * * way for the counsel to present an argument that the Recorder withheld exculpatory evidence from the Tribunal in violation of the specified procedures"). Sec ond, the court explained that it could not "consider whether a preponderance of the evidence supports the Tribunal's status determination" "without seeing all the evidence." Id. at 14a-15a; see id. at 17a-18a.
6. On September 7, 2007, the government filed a petition seeking expedited rehearing and suggesting rehearing en banc. In support of its petition, the gov ernment submitted sworn declarations (both unclassi fied and classified) from the Directors of the Central Intelligence Agency, the National Security Agency, and the Federal Bureau of Investigation; the Director of National Intelligence; and the Deputy Secretary of De fense, explaining the extraordinary burdens and na tional security risks created by the court's decision. See App., infra, 182a-239a.1 The government also filed a motion to expedite consideration of its rehearing peti tion and any related proceedings, pointing to the fact that Boumediene and Al Odah were already pending before this Court.
a. On October 3, 2007, the panel of the court of ap peals denied rehearing. In reaffirming its holding, the panel deemed it "irrelevant" that CSRT procedures were modeled on Army Regulation 190-8-which does not require that the military turn over any information in its possession to a detainee, App., infra, 59a-and that its holding requires the government to turn over more evidence to a detainee than the Constitution af fords to United States citizens in criminal trials, id. at 60a (citing Brady v. Maryland, 373 U.S. 83 (1963)). Moreover, although the court acknowledged that, at the time of the CSRT determinations, recorders had no rea son to "retain that portion of the Government Informa tion [they] did not forward to the Tribunal," id. at 61a n.4, it nonetheless held that the government must either recreate such a record or "convene a new CSRT" for each detainee. Id. at 62a-63a.
b. On February 1, 2008, the en banc court of appeals issued an order denying the government's petition for rehearing en banc by a 5-5 vote. Five separate opinions accompanied that order. App., infra, 67a-102a.
i. Chief Judge Ginsburg, joined by Judges Rogers, Tatel, and Griffith, concurred in the denial of rehearing. App., infra, 71a-82a. He reiterated the bases for the initial panel decision and restated the government's op tions under that decision: "either 'reassemble the Gov ernment Information it did collect or . . . convene a new CSRT.'" Id. at 77a (quoting opinion denying panel rehearing).
ii. Judge Garland separately concurred in the denial of rehearing. App., infra, 83a. He explained that he did not favor rehearing en banc for the sole reason that it would "plainly delay [the court of appeals'] decision and hence the Supreme Court's disposition of Boumediene." Ibid.
iii. Although she was a member of the original panel, Judge Henderson, joined by Judges Sentelle, Randolph, and Kavanaugh, dissented from denial of rehearing en banc, based on her serious concerns about the correct ness of the panel's decision and its implications for na tional security. App., infra, at 83a-89a. Judge Hender son rejected the notion that the court was required to view all Government Information to conduct its review under the DTA, explaining that, in the criminal context, a court can review "whether the preponderance of the evidence supports a probable cause finding sufficient to hold an arrestee for trial without knowing (much less, reviewing) all the evidence in the prosecutor's posses sion." Id. at 85a. She also noted that, in the administra tive agency context, a reviewing court has "no license to 'create' a record consisting of more than the agency it self had before it." Id. at 86a. And she acknowledged the enormous obligations the panel's decision would place on the government and the court, id. at 88a-89a & n.5, and noted that "the five officials- charged with safeguarding our country while we are now at war- have detailed the grave national security concerns the [panel's] holding presents," id. at 88a.
iv. Judge Randolph, joined by Judges Sentelle, Hen derson, and Kavanaugh, separately dissented from de nial of rehearing en banc. App., infra, 90a-99a. He ex plained that the panel's holding "is contrary to the rule and the statute governing the contents of the record in cases such as these," "violates the restrictions on [the court's] jurisdiction in the [DTA]," and "risks serious security breaches for no good reason." Id. at 90a. In his view, 28 U.S.C. 2112(b) and Federal Rule of Appellate Procedure 16(a)-which the panel's decision did not even address-"make crystal clear" that "the record does not include information never presented to the [CSRT]." App., infra, 91a. And he noted that "[t]he Department of Defense regulation directly on point" reinforces that view. Id. at 91a n.2; see id. at 93a n.4. Finally, he expressed his concern that production of all Government Information would not assist in judicial review, while "its assembly and filing in this court, and potential sharing with private counsel, gives rise to a severe risk of a security breach." Id. at 95a.
v. Judge Brown also dissented from denial of rehear ing en banc, stating that the court's "continuing debate suggests the court has not yet found the right para digm." App., infra, 99a-102a. She too noted the enor mity of the government's burden to either "conduct a new search" to construct a "theoretical record" or "re convene [each] CSRT." Id. at 99a-100a & n.1.
REASONS FOR GRANTING THE PETITION
In Boumediene v. Bush and Al Odah v. United States, this Court is currently considering several cru cial issues concerning the constitutionality of the MCA and DTA and the adequacy of the procedures and judi cial review currently provided for captured enemy com batants to challenge their detention at the Guantanamo Bay Naval Station. As this Court recognized when it granted certiorari in those cases, see 127 S. Ct. 3078, the important question presented by this case concerning the scope of the record on review in an action brought under the DTA is in significant respects intertwined with the threshold issues pending before the Court in Boumediene and Al Odah.
If, for example, this Court in Boumediene and Al Odah reaches the question of the adequacy of the DTA procedures as a substitute for the review provided in common-law habeas in 1789, it may have an opportunity to interpret the procedures for DTA review, including the "record on review," so as to avoid any constitutional difficulties. If, on the other hand, this Court determines that detainees do not have Suspension Clause rights, it would highlight the importance of the procedures for DTA review, and the Court could either grant the peti tion outright at that point, or it could permit the court of appeals to revisit its ruling on the scope of the record for judicial review in light of the Court's explanation of what rights (if any) detainees have to judicial review. Either way, this Court's decision in Boumediene and Al Odah is likely to directly inform the question in this case.
At the same time, there is no reason to place the gov ernment in the dilemma created by the court of appeals' decision in this case while the Boumediene and Al Odah cases are pending before this Court. As discussed, the decision below forces the government either to engage in a massive and practically infeasible attempt to recre ate the Government Information the recorder might have reviewed under the court of appeals' decision at the risk of great harm to national security, or conduct an en masse remand of DTA cases for an additional round of CSRT proceedings in the midst of an ongoing armed conflict. Because it is possible that this Court's decision in Boumediene and Al Odah will obviate the need for either course and may require yet a third course, there is no reason to put the government to that choice while those cases are pending. Indeed, even if the Court's decision in Boumediene and Al Odah is adverse to the government and the government is required to convene new CSRT proceedings or the need for CSRT proceed ings is mooted altogether, there is no reason to require the government to undertake this extraordinary task with attendant risks to national security before it has the benefit of this Court's guidance on what procedures are required.
The unprecedented nature of the District of Colum bia Circuit's decision in this case and substantial diver gence- underscored by the 5-5 split and the five sepa rate opinions accompanying the denial of rehearing en banc-among the Judges of the District of Columbia Circuit on the scope of the record on review in DTA ac tions provides all the more reason for this Court to hold this case and delay execution of the judgment until the Court has an opportunity to consider and dispose of the case in light of its decision in Boumediene and Al Odah.
The court of appeals held that, in reviewing a CSRT determination that a detainee is an enemy combatant under the DTA, the record on review includes all reason ably available, relevant information within the posses sion of the United States government, even if the that material was not presented to or considered by the CSRT. That conception of the record on review is not only unprecedented in any administrative or judicial context, but it exceeds the constitutional requirements recognized by this Court in the ordinary criminal con text. It disregards the DTA's explicit definition of the record on review, it is contrary to Congress's clear in tent in providing limited judicial review of CSRT deter minations, and it ignores the unique wartime context in which the proceedings at issue were conducted. More over, as the heads of the Nation's intelligence agencies explained in the sworn affidavits filed in support of re hearing en banc in the court of appeals, the District of Columbia Circuit's decision in this case imposes extraor dinary burdens on the intelligence community and, if followed, would present a grave risk to national security.
Petitions under the DTA have already been filed on behalf of more than 180 detainees, and the court of ap peals' ruling addressing the scope of the "record on re view" will apply to each of them. To comply with the court of appeals' conception of the record on review, the government would be required to divert a significant portion of its intelligence, law enforcement, and military resources to either creating new "records" for DTA liti gation or to conducting entirely new CSRT hearings for those detainees. As the leaders of the intelligence com munity have attested, and as several members of the court of appeals recognized in opinions dissenting from the denial of rehearing, that diversion of resources from critical national security duties during ongoing armed conflict threatens national security.
Because this case raises a question of great signifi cance to our Nation's security in a time of war, and be cause the court of appeals' decision is fundamentally flawed, this case warrants plenary review in its own right. However, because the question presented by this case is interconnected with the Boumediene and Al Odah cases currently pending before the Court, the better course would be for this Court to hold this case pending the disposition of Boumediene and Al Odah. In the alternative, this Court should grant the petition and set this case for briefing and oral argument on an expe dited schedule, so that the case may be considered this Term along with Boumediene and Al Odah.2
A. The Question Presented By This Case Is Intertwined With The Threshold Questions The Court Is Now Con sidering In Boumediene And Al Odah
In Boumediene and Al Odah, this Court is currently considering a variety of constitutional and statutory challenges to the restrictions on judicial review Con gress enacted in the DTA and MCA. In particular, this Court is reviewing the court of appeals' holding in those cases that the DTA is the only means by which Guan tanamo Bay detainees may challenge their detention as enemy combatants in federal court and considering the detainees' constitutional challenges to the adequacy of judicial review under the DTA. Pet. at i, Boumediene v. Bush, No. 06-1195 (argued Dec. 5, 2007); Pet. at i, Al Odah v. United States, No. 06-1196 (argued Dec. 5, 2007); see also Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.), cert. granted, 127 S. Ct. 3078 (2007).
The scope of the record on review in DTA actions is an important incident of the DTA and MCA scheme be fore the Court in Boumediene and Al Odah, and would figure prominently in any decision reaching the question of the adequacy of the DTA procedures as a substitute for habeas. Indeed, in denying rehearing en banc in this case, several members of the court of appeals expressly recognized the relationship between this case and the questions presented in Boumediene and Al Odah. See App., infra, 82a (Ginsburg, J., concurring in denial of rehearing en banc); id. at 83a (Garland, J., concurring in denial of rehearing en banc); id. at 89a n.6 (Henderson, J., dissenting from denial of rehearing en banc); id. at 96a (Randolph, J., dissenting from denial of rehearing en banc).
Moreover, this Court itself recognized that the ques tion in this case is interrelated with Boumediene and Al Odah when it granted certiorari in those cases by taking the unusual step of asking the parties to file supplemen tal briefs in Boumediene and Al Odah once the court of appeals issued its decision in this case. See Boume diene, 127 S. Ct. 3078.3 And the outcome in this case may be directly affected by the Court's decision in Bou mediene and Al Odah.
If, for example, this Court in Boumediene and Al Odah reaches the question of whether the DTA proce dures are an adequate substitute for the review provided by common-law habeas corpus, the Court may have oc casion to address the scope of DTA review, perhaps in cluding the record on review, directly. For example, the Court may interpret the provisions addressing DTA review in order to avoid any constitutional difficulties or grave doubts. If, on the other hand, this Court deter mines that detainees do not have Suspension Clause rights, it would not need to consider the adequacy of the DTA procedures directly. Nonetheless, that decision would only underscore the importance of the question presented in this petition. The Court could decide to either grant plenary review at that juncture or permit the court of appeals to revisit its ruling on the scope of the record for judicial review in light of the Court's ex planation of what rights (if any) detainees have to judi cial review.
In all events, this Court's resolution of the question of what constitutional rights, if any, detainees at Guan tanamo Bay possess-a key issue in Boumediene and Al Odah-will necessarily inform the scope and nature of the court of appeals' review under the DTA, for the DTA specifically instructs the court to review, "to the extent the Constitution and laws of the United States are appli cable," whether CSRT "standards and procedures" are "consistent with the Constitution and laws of the United States." DTA § 1005(e)(2), 119 Stat. 2742. Thus, this Court's resolution of the issues in Boumediene and Al Odah will have a material effect on the question pre sented in this case, and the government should not be required to expend the extraordinary resources re quired to comply with the court of appeals' decision until this Court has resolved Boumediene and Al Odah.
That is particularly true if the government is forced to follow the court of appeals' suggested recourse of vol untary remands in the likely event that it cannot comply with the decision's extraordinary record production- and, indeed, recreation-demands. Reconvening those CSRTs would impose extraordinary demands on the military in the midst of an ongoing armed conflict. And the entire exercise may be rendered either pointless or misdirected in relatively short order depending on the Court's resolution of Boumediene and Al Odah. Be cause it is possible that this Court's decision in Boume diene and Al Odah may call for additional changes to the CSRT rules, there is no reason for this Court to require the military to embark down the path of new CSRTs until, at a minimum, it has further guidance from this Court.
Accordingly, the Court should hold this petition pending Boumediene and Al Odah and dispose of it in accordance with the Court's decision in those cases. In the alternative, if this Court would prefer to resolve the questions presented in Boumediene and Al Odah together with the question presented in this case re garding the scope of the record on review in a DTA case, the Court should grant the petition and set this case for expedited briefing and argument, so that it may be con sidered with Boumediene and Al Odah this Term. The government has proposed an expedited briefing and ar gument schedule in the accompanying motion for expe dited consideration of this petition.
B. The Court Of Appeals Committed Serious Legal Error
The court of appeals' definition of the record on re view is contrary to well-settled principles of judicial re view, to CSRT procedures, to Congress's intent in enact ing the DTA, and to the decision of a plurality of this Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
1. It is a fundamental principle of judicial review that the record on review is generally limited to the ma terials presented to the initial decisionmaker. In the administrative agency context, for example, the court's "reviewing function is * * * ordinarily limited to con sideration of the decision of the agency or court below and of the evidence on which it was based." United States v. Carlo Bianchi & Co., 373 U.S. 709, 714-715 (1963) (emphasis added). As this Court recognized in Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985), the "fundamental principle[] of judicial review of agency action" is that "[t]he focal point for judicial re view should be the administrative record already in exis tence, not some new record made initially in the review ing court." Id. at 743 (internal quotation marks omitted). That is because it is the task of a reviewing court to con sider the correctness of the decisionmaker's ruling based on the record before it, not based on some theo retical record that could have been compiled. Accord ingly, a reviewing court generally has "no license to 'cre ate' a record consisting of more than the agency itself had before it." App., infra, 86a (Henderson, J., dissent ing from denial of rehearing en banc) (citing cases).
That well-settled principle is embodied in the statute governing administrative agency actions, 28 U.S.C. 2112(b) which applies by its plain terms to this case. Section 2112(b) provides that the "record to be filed in the court of appeals" on a judicial review of an adminis trative agency action "shall consist of the order sought to be reviewed or enforced, the findings or report upon which it is based, and the pleadings, evidence, and pro ceedings before the agency, board, commission, or offi cer concerned." An "agency," in turn, is defined to in clude "any department, independent establishment, commission, administration, authority, board or bureau of the United States," 28 U.S.C. 451. Federal Rule of Appellate Procedure 16(a), which implements Section 2112(b), states the same rule. Those provisions alone make "crystal clear" that the record on review of a CSRT determination "does not include information never presented to the [CSRT]." App., infra, 91a (Randolph, J., dissenting from denial of rehearing en banc).
The court of appeals held that the record for the court's review of a CSRT hearing consists of all Govern ment Information, including information not actually presented to the tribunal. App., infra, 38a, 58a. That holding has no precedent in any administrative or judi cial context, much less in the extraordinary military and national security context in which this case arises. In deed, the court of appeals recognized as much, dismiss ing as "irrelevant" the government's analogies to admin istrative agency review, Geneva Convention proceed ings, and criminal proceedings, on the ground that the judicial review authorized by the DTA is sui generis. Id. at 59a-63a. But to the extent that the context of DTA review is unique, it hardly calls for a more demanding record with greater risk to classified information than in any other context.
2. The court of appeals' construction of the Depart ment of Defense procedures governing CSRTs is funda mentally flawed. Those procedures reflect the long- standing principle that the record on review is limited to the evidence presented to the tribunal. CSRT proce dures distinguish between "Government Information" -all of the "reasonably available information in the pos session of the U.S. Government bearing on" the question whether a detainee is an enemy combatant, App., infra, 129a-and "Government Evidence"-the evidence that the recorder presents to the CSRT to support the de tainee's classification as an enemy combatant, id. at 138a-and make clear that the "record" consists only of the latter.
Indeed, CSRT procedures specifically define the re cord of proceedings as the evidence submitted to the tribunal by the recorder and the detainee, the tribunal's ruling, and the audio file of proceedings. App., infra, 140a-141a. After a CSRT hearing, the recorder compiles that record and provides it to the detainee's personal representative, who may "submit, as appropriate, obser vations or information that he/she believes was pre sented to the Tribunal and is not included or accurately reflected on the record." Id. at 147a. That record is then submitted to the presiding officer of the tribunal for certification, after which that "completed record is considered the official record of the Tribunal's decision." Ibid. That official record is used by the CSRT Legal Advisor and CSRT Director to review the legal suffi ciency review of all CSRT rulings before those rulings become final. Id. at 141a-142a. And that record like wise should be utilized in judicial review under the DTA, consistent with the traditional rule regarding the con tent of the record on judicial review.
The text of the DTA and the context in which it was enacted reinforce that the record in a DTA case is lim ited to the evidence actually presented to a CSRT, i.e., the Government Evidence and the detainee's evidence. When Congress enacted the DTA, it was well aware of the existing CSRT procedures, including the definition of the record of the proceedings. App., infra, 141a. And Congress authorized only a narrow form of review under the DTA, permitting the court of appeals to review a "final decision" of a CSRT only to ensure (1) that it was "consistent with the standards and procedures specified by the Secretary of Defense," "including the require ment that the conclusion of the Tribunal be supported by a preponderance of the evidence," and (2) that, "to the extent the Constitution and laws of the United States are applicable," the "standards and procedures [used] to make the determination is consistent with the Constitution and laws of the United States." DTA § 1005(e)(2), 119 Stat. 2742. That narrow review indi cates that Congress did not intend far-reaching judicial review, particularly judicial review that would go be yond any known administrative or judicial context. In stead, it indicates that Congress intended the court of appeals to ensure that the Department of Defense fol lowed its own rules and had sufficient evidence on the record before it to find that a detainee is an enemy com batant.
Moreover, the legislative history of the DTA makes clear that Congress was attempting to narrow the scope of review of detainees' claims, not invite a wide-ranging inquiry into materials that were not even presented to the CSRTs. See, e.g., 152 Cong. Rec. S10,403 (daily ed. Sept. 28, 2006) (statement of Sen. Cornyn) (DTA "sub stitute[s] the blizzard of litigation instigated by Rasul v. Bush with a narrow DC Circuit-only review of the Com batant Status Review Tribunal-CSRT-hearings," which is "by design" because "[c]ourts of appeals do not hold evidentiary hearings or otherwise take in evidence outside of the administrative record"); id. at S10,268 (daily ed. Sept. 27, 2006) (statement of Sen. Kyl) (the "DTA does not allow re-examination of the facts under lying a * * * detention, and it limits the review to the administrative record").
Nothing in the Constitution, the DTA's text, or his torical precedent calls for imposing a different and expo nentially more intrusive record production regime in the context of status determinations of foreign nationals held by the military abroad as enemy combatants. To the contrary, one of the motivating principles of the DTA was that the unique circumstances of wartime detentions called for rules that provided a fair process but also were responsive to the extraordinary demands faced by the military in the midst of an ongoing armed conflict. It is inconceivable that as Congress sought to displace traditional habeas review it intended to impose a record review regime far more extensive than any pro duction requirement found in a criminal proceeding or in habeas.
3. The court of appeals proffered two justifications for its ruling, neither of which is correct. First, the court stated that it cannot determine whether the re corder withheld any potentially exculpatory evidence, in violation of CSRT procedures, without being able to ex amine for itself all relevant, reasonably available infor mation in the government's possession. App., infra, 11a- 16a. That explanation incorrectly conflates two distinct issues: (1) what constitutes the administrative record in a DTA case and (2) what is the appropriate process and remedy (if any) in the event a detainee alleges that the Department of Defense failed to comply with its own rules requiring inclusion of exculpatory evidence in the administrative record. Although the DTA permits the court of appeals to consider a detainee's claim that the Department of Defense did not follow its own proce dures, it does not follow that the ability to bring such a challenge automatically expands the record in the man ner envisioned by the court of appeals.
There is no need to disturb ordinary conceptions of record review to ensure that exculpatory information is not improperly withheld. Consistent with the Depart ment of Defense's own rules, in conducting CSRTs, the Department has always sought in good faith to provide Tribunals with any pertinent reasonably available infor mation of which it is aware that a detainee is not an en emy combatant (i.e., "exculpatory information"). The government has no interest in detaining individuals who are not enemy combatants. In addition, when the De partment subsequently becomes aware that previously undisclosed exculpatory information exists, the Depart ment will advise the court of appeals and submit the in formation for review under the Secretary's rules govern ing consideration of new evidence. See App., infra, 176a-181a.
The court of appeals, however, erroneously conflated the concept of record on review with the Department's efforts to identify information that a detainee is not an enemy combatant. Indeed, even in the domestic crimi nal context where the Due Process Clause applies and requires the prosecution to provide exculpatory informa tion to the defendant, see Brady v. Maryland, 373 U.S. 83 (1963), "[t]here is no general constitutional right to discovery," Weatherford v. Bursey, 429 U.S. 545, 559 (1977), and there is no requirement that the prosecution open up its files so a court or defendant may evaluate whether the prosecution has produced the evidence re quired by rule, statute, or the Constitution. See 18 U.S.C. 3500 (Jencks Act); Fed. R. Crim. P. 16(a).
Instead, the Constitution generally presumes that the government furnishes exculpatory evidence as part of the criminal justice process, and there is no standing obligation that the prosecution turn over "the Common wealth's files." Pennsylvania v. Ritchie, 480 U.S. 39, 59 (1987). There certainly is no free-standing requirement in the criminal context-like the court imposed here- that the government turn over all information in its files so that the courts can determine what should be pro duced to the defendant. That is true even if the defen dant is a United States citizen, who possesses full consti tutional rights. Cf. U.S. Br. at 14-25, Boumediene v. Bush and Al Odah v. United States, Nos. 06-1195 & 06- 1196 (argued Dec. 5, 2007) (arguing that Guantanamo Bay detainees lack Suspension Clause rights). Yet, in such circumstances, the courts are fully able to conduct the necessary judicial review. App., infra, 85a (Hender son, J., dissenting from denial of rehearing en banc).
The court of appeals' second rationale is that produc tion of all Government Information was necessary for the Court to "consider whether a preponderance of the evidence supports the Tribunal's status determination." App., infra, 14a-15a. That reasoning, too, is mistaken, because it is well-settled that the "preponderance of the evidence" standard refers to the evidence presented to the court, not to some other set of information. See, e.g., Gould v. United States, 160 F.3d 1194, 1197 (8th Cir. 1998); see also, e.g., 1 Christopher B. Mueller & Laird C, Kirkpatrick, Federal Evidence § 65, at 319-320 (2d ed. 1994). Again, the court of appeals has confused two sep arate concepts-whether the government has met its burden of proof on the relevant record and the scope of the record itself. See App., infra, 14a-15a. The court of appeals is well able to determine whether a detainee's designation as an enemy combatant is supported by a preponderance of the evidence based on the record be fore the CSRT, just as reviewing courts routinely judge the sufficiency of a party's evidence based on the materi als actually presented to the decisionmaker.
The fact that some detainees may wish to raise pro cedural challenges to the Defense Department's compli ance with its procedures for compiling the administra tive record or question the sufficiency of the evidence does not distinguish this context from other cases filed under 28 U.S.C. 2112(b) and Rule 16(a) of the Federal Rules of Appellate Procedure. Under those rules, when a party challenging an agency order argues that mate rial was improperly excluded from the record, the court considers the challenger's claims and the evidence he produced in support, NRDC v. Train, 519 F.2d 287, 291- 292 (D.C. Cir. 1975), and the court may determine, based upon that submission, "such additional explanations of the reasons for the agency decision as may prove neces sary," Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275, 285 (D.C. Cir. 1981). In the DTA context, as in the administrative context generally, "if the reviewing court simply cannot evaluate the challenged agency ac tion on the basis of the record before it, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation," Florida Power & Light, 470 U.S. at 744, rather than automatically transform the record from that considered by the agency into some broader, amorphous class of material that the agency did not consider.
4. The court of appeals' decision in this case also is at odds with the decision of a plurality of this Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004). The Hamdi plurality addressed the process due an American citizen detained as an enemy combatant in the United States. In doing so, the plurality expressly approved of the pro cess under Army Regulation 190-8, which is used to de termine the status of enemy detainees under the Geneva Convention. Id. at 538. In addition, the plurality re jected "extensive discovery of various military affairs" and anything "approach[ing] the process that accompa nies a criminal trial," id. at 528; see also id. at 538; In re Yamashita, 327 U.S. 1, 17 (1946). In particular, the plu rality rejected the procedure ordered by the district court in Hamdi, which envisioned the government turn ing over all of the raw materials in its file relevant to the determination that Hamdi was an enemy combatant. 542 U.S. at 513-514, 532-533. The parallels between the discovery ordered in Hamdi-and rejected by this Court-and the record envisioned by the decision below are striking. Indeed, the court of appeals' decision in this case categorically imposes on the military-with respect to foreign nationals held abroad-record pro duction demands that far exceed those invalidated by the plurality under the Due Process Clause with respect to the citizen enemy combatant in Hamdi.
C. The Question Presented Is Exceptionally Important
As the court of appeals itself acknowledged, the rec ord-production requirements mandated by the decision below would require the government to divert limited resources from an ongoing armed conflict for use in ei ther attempting to recreate new "records" for each de tainee's case or convening new CSRTs for each detainee. In fact, the leaders of our Nation's intelligence commu nity filed detailed declarations with the court of appeals explaining both the government's difficulty with comply ing with the court's holding and the harms to national security that likely will result if the government at tempts to comply. See App., infra, 182a-214a. The ex traordinary importance of the question presented coun sels in favor of holding this case for Boumediene and Al Odah or granting the petition and setting it for expe dited review.
1. Creation of the "record," as defined by the court below, would be a monumental undertaking for the gov ernment. As the court of appeals acknowledged, the government does not possess a file of materials reviewed by each CSRT recorder for each detainee, and its "fail ure" to create such a file is completely understandable. See App., infra, 61a-62a & n.4. Beyond two comprehen sive databases most commonly used to compile material on detainees, see pp. 4-5, supra, there were any number of other sources, from any number of government agen cies, that recorders could consult in search of potentially relevant material. Because there is no record of where each particular recorder looked, recompiling the record would entail a massive undertaking of identifying any potentially relevant material in the possession of all of those agencies in each DTA case. App., infra, 216a- 218a.
In an effort to comply with the decision of the court of appeals, the government has, for a limited set of cas es, assessed the effort required to create new "records" for all CSRT determinations. App., infra, 217a-222a. After expending hundreds of man-hours on this effort, the government has concluded that it would be an ex traordinary undertaking, and a massive diversion of in telligence, law enforcement and military resources, for the government to recreate the Government Informa tion in all of the approximately 180 pending DTA cases. See App., infra, 192a-195a; id. at 218a, 222a-223a. And, after collecting that information, the government would be required to review line-by-line all relevant classified information before producing it to the court of appeals and to counsel for the detainee. Id. at 188a; id. at 195a. Those tasks would divert vital intelligence analysts from their duties for a lengthy period of time (most likely years). Id. at 219a-220a, 223a.
2. In addition to requiring significant expenditure of government resources, the production of materials re quired by the decision below would pose a grave threat to national security. The heads of the intelligence agen cies each filed declarations with the court of appeals detailing those security risks, see App., infra, 182a-214a, and several judges on the court of appeals noted those risks as well, see id. at 88a (Henderson, J., dissenting from denial of rehearing en banc); id. at 95a-96a (Ran dolph, J., dissenting from denial of hearing en banc).
The material that the government would be required to disclose as part of the "record" likely would include highly sensitive classified material, including material from foreign intelligence sources and "a vast number of the CIA's most sensitive classified documents on coun terterrorism intelligence and operations." App., infra, 184a. Although, under the court of appeals' protective order, that material would be provided only to the de tainee's counsel and the court of appeals, that disclosure could still seriously disrupt the Nation's intelligence gathering programs and cause "exceptionally grave damage to the national security." Id. at 187a; accord id. at 211a; id. at 205a-206a. That is because the required disclosure of sensitive information, even if no material is ever inadvertently disclosed beyond counsel and the court, will make foreign governments and human sour ces less likely to cooperate in the United States' intelli gence gathering in the future.
As the Director of the Central Intelligence Agency explained, compliance with the court of appeals' decision would require disclosure of material derived from or provided by foreign intelligence services or sensitive human sources, often pursuant to "assurances of confi dentiality," and when that material is disclosed, there will be "a high probability that" those sources "will de crease their cooperation" in the future, impairing our ability to gather intelligence. App., infra, 186a-187a. Further, he explained that unauthorized disclosures (beyond disclosures to counsel and to the court of ap peals) are "inevitable," and such disclosures would "evis cerate the U.S. Government's carefully conceived plan to keep its most highly sensitive information compart mentalized." Id. at 188a; see also id. at 196a (discussing similar risks).
The Director of the National Security Agency like wise stated that the decision below "create[s] a very real danger of disclosure (intentional or inadvertent) of sen sitive intelligence information, to include sources and methods of collection." App., infra, 203a-204a (citing 50 U.S.C. 402 note). And the Director of National Intelli gence confirmed that the decision below "risk[s] public disclosure of classified intelligence information, sources, and methods, thereby enabling adversaries of the United States to avoid detection by the U.S. Intelligence Community and/or take measures to defeat or neutralize U.S. intelligence collection." Id. at 211a.
3. The court of appeals' response to the extraordi nary burdens and national security risks created by its decision was to place the government on the horns of a dilemma: either attempt to recreate the Government Information the recorder might have viewed or conduct a new CSRT hearing for each detainee. App., infra, 62a- 63a. As discussed, the former option is virtually infeasi ble. And the latter option is equally problematic, if not more so, and would make no sense as a short-term op tion in light of the likelihood that this Court will provide further guidance in Boumediene and Al Odah. That option would require, in the midst of an ongoing armed conflict, the commitment of massive resources to redo up to 275 CSRTs (i.e., for the 180 DTA petitioners and the other Guantanamo Bay detainees, if they also seek DTA review). In addition to consuming a massive am ount of time and resources, conducting new CSRTs for hundreds of detainees would inevitably delay the detain ees' ability to seek federal court review of their enemy combatant status, thereby hampering the system of re view established by Congress in the DTA. And all of that effort may go for naught depending on how this Court resolves Boumediene and Al Odah. At a mini mum, the government should not be required to bear that unprecedented burden until the Court has disposed of this case in accordance with its decision in Boume diene and Al Odah.
CONCLUSION
The petition for a writ of certiorari should be held pending this Court's decision in Boumediene v. Bush and Al Odah v. United States. Once those cases have been decided, the petition should be disposed of as ap propriate in light of that decision.
In the alternative, the petition should be granted and this case should be set for expedited briefing and oral argument, so that the case may be decided this Term.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
JONATHAN F. COHN
Deputy Assistant Attorney
General
NICOLE A. SAHARSKY
Assistant to the Solicitor
General
DOUGLAS N. LETTER
ROBERT M. LOEB
AUGUST E. FLENTJE
CATHERINE Y. HANCOCK
JENNIFER PAISNER
Attorneys
FEBRUARY 2008
1 The unclassified versions of the documents are included in the appendix to this petition. The government will submit the classified versions to this Court if requested.
2 If the Court decides to grant plenary review and consider this case on the merits this Term, the government has proposed an expedited schedule for briefing and oral argument in its accompanying motion for expedited consideration of this petition.
3 Because the initial panel decision was issued before the merits briefing had concluded in Boumediene and Al Odah, the parties were able to address that decision in their merits briefs in those cases. In the meantime, as explained below, the government sought expedited rehearing in Bismullah. Because that petition was pending when the government filed its merits brief in Boumediene and Al Odah, and particularly given the page constraints for that brief, the government's discussion of Bismullah in that brief was not extensive.
APPENDIX A
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Nos. 06-1197, 06-1397
HAJI BISMULLAH A/K/A HAJI BISMILLAH,
AND A/K/A HAJI BESMELLA
HAJI MOHAMMAD WALI, NEXT FRIEND OF
HAJI BISMULLAH, PETITIONERS
v.
ROBERT M. GATES, SECRETARY OF DEFENSE, RESPONDENT
HUZAIFA PARHAT, ET AL., PETITIONERS
v.
ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL., RESPONDENTS
Argued: May 15, 2007
Decided: July 20, 2007
As Amended: Oct. 23, 2007
OPINION
Before: GINSBURG, Chief Judge, and HENDERSON and ROGERS, Circuit Judges.
Opinion for the court filed by Chief Judge GINSBURG.
Concurring opinion filed by Circuit Judge ROGERS.
GINSBURG, Chief Judge:
Petitioners are eight men detained at the Naval Sta tion at Guantánamo Bay, Cuba. Each petitioner seeks review of the determination by a Combatant Status Re view Tribunal (CSRT or Tribunal) that he is an "enemy combatant." In this opinion we address the various pro cedural motions the parties have filed to govern our re view of the merits of the detainees' petitions. The peti tioners as a group and the Government each propose the court enter a protective order to govern such matters as access to and handling of classified information; the peti tioners move to compel discovery and for the appoint ment of a special master; and the Government asks the court to treat the seven petitioners who filed the joint petition in Parhat v. Gates (No. 06-1397) as though each had filed a separate petition to review his status deter mination.
In order to review a Tribunal's determination that, based upon a preponderance of the evidence, a detainee is an enemy combatant, the court must have access to all the information available to the Tribunal. We therefore hold that, contrary to the position of the Government, the record on review consists of all the information a Tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense, hereinafter referred to as Government Information and defined by the Secretary of the Navy as "such reason ably available information in the possession of the U.S. Government bearing on the issue of whether the de tainee meets the criteria to be designated as an enemy combatant," which includes any information presented to the Tribunal by the detainee or his Personal Repre sentative.
In addition, we must implement such measures to govern these proceedings as are necessary to enable us to engage in meaningful review of the record as defined above. Therefore, we will enter a protective order adop ting a presumption, as proposed by the petitioners, that counsel for a detainee has a "need to know" the classi fied information relating to his client's case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information. The protective order also will provide that the Govern ment may inspect correspondence from counsel to a de tainee, including "legal mail," and redact anything that does not pertain to the events leading up to the de tainee's capture and culminating in the conduct of his CSRT, including such events in between as bear upon the decision of the Tribunal or our review thereof. Fi nally, the protective order will provide that a lawyer offering his or her services may, as the petitioners pro pose, have up to two visits with a detainee in order to obtain the detainee's authorization to seek review of the CSRT's determination of his status.
Before entering the protective order, the court will give the parties an opportunity to suggest changes.
I. Background
Each petitioner is a foreign national captured abroad and held at Guantánamo, seeking review of a decision of a CSRT determining that he is an "enemy combatant" and therefore subject to detention for the duration of hostilities. Haji Bismullah was captured in Afghanistan in 2003. Huzaifa Parhat and the six other detainees join ing his petition are ethnic Uighurs who allege they were captured in Pakistan in approximately December 2001.
A. The Regulations
In a July 2004 Memorandum for the Secretary of the Navy, the Secretary of Defense established skeletal pro cedures for the conduct of CSRT proceedings with re spect to foreign nationals held at Guantánamo to "review the detainee's status as an enemy combatant." The Sec retary of the Navy, who was "appointed to operate and oversee [the CSRT] process," promptly issued a memo randum specifying detailed procedures (Navy Memoran dum), which are still in effect.1
Pursuant to those procedures, a CSRT reviews the determination, made after "multiple levels of review by military officers and officials of the Department of De fense," (E-1 § B) that a detainee is an "enemy combat ant," defined as "an individual who was part of or sup porting Taliban or Al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." (E-1 § B) A Tribunal is com posed of "three neutral commissioned officers" who were not involved in the "apprehension, detention, inter rogation, or previous determination of status of the de tainee[]." (E-1 § C(1)) The Tribunal is to "determine whether the preponderance of the evidence supports the conclusion that each detainee meets the criteria to be designated as an enemy combatant." (E-1 § B) There is a rebuttable presumption that the Government Evi dence, defined as "such evidence in the Government In formation as may be sufficient to support the detainee's classification as an enemy combatant" (E-1 § H(4)) is "genuine and accurate" (E-1 § G(11)).
The Tribunal is authorized to request the production of "reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant," (E-1 § E(3)) and the Recorder, a military officer, is charged with obtaining from govern ment agencies and reviewing all such Government Infor mation (E-2 § C(1)). The Recorder must present, orally or in documentary form (E-2 § C(6)), both the Govern ment Evidence and, if any there be in the Government Information, all "evidence to suggest that the detainee should not be designated as an enemy combatant."
(E-1 § H(4), E-2 § B(1)) In advance of the Tribunal hearing, the Recorder must prepare an unclassified summary of the relevant Government Information and provide the summary to the detainee's Personal Repre sentative, also a military officer. (E-2 § C(2), (4))
Each detainee's Personal Representative reviews the Government Evidence the Recorder plans to present to the Tribunal (E-3 § C(3)), has access to the Government Information (E-3 § C(2)), and meets with the detainee to explain the CSRT process. The Personal Representa tive may not, however, share classified information with the detainee. (E-3 § C(4)) The Personal Representative "shall present information to the Tribunal if the de tainee so requests" and "may, outside the presence of the detainee, comment upon classified information sub mitted by the Recorder." (E-3 § C(5)) The detainee may testify or introduce relevant documentary evidence at the hearing, but may not be compelled to answer ques tions. (E-1 § F(6)-(7)) He also may present the testi mony of any witness who is "reasonably available and whose testimony is considered by the Tribunal to be rel evant." (E-1 § F(6))
After the hearing, the Recorder compiles a "Record of Proceedings," consisting of (1) a statement of the time and place of the hearing and the names of those present; (2) the Tribunal Decision Report cover sheet,2 which is accompanied by (a) the classified and unclassified re ports made by the Recorder "upon which the Tribunal decision was based" and (b) copies of all documentary evidence presented to the CSRT; (3) a summary pre pared by the Recorder of each witness's testimony; and (4) the summary report written by any dissenting mem ber of the Tribunal. (E-2 § C(8), E-1 § G(12))
Each Tribunal has a "Legal Advisor" with whom the members may consult regarding legal, evidentiary, pro cedural, and like matters. (E-1 § C(4)) The Legal Advi sor reviews for legal sufficiency both the CSRT's rulings on whether witnesses and evidence are reasonably avail able and its ultimate determination of the detainee's status. (E-1 § I(7)) The Legal Advisor forwards the Re cord of Proceedings to the "Director, CSRT,"
(E-1 § I(5)) who reviews the decision as well. (E-1 § I(8), E-2 § C(10)) If approved by the Director, CSRT, then the decision becomes final. (E-1 § I(8))
B. The Statutes
In December 2005 the President signed into law the Detainee Treatment Act (DTA), Pub. L. No. 109-148, § 1005(e)(2)(A), 119 Stat. 2742-43, which vests in this court exclusive jurisdiction "to determine the validity of any final decision of a [CSRT] that an alien is properly detained as an enemy combatant." Section 1005(e)(2)(C) of the Act provides:
The jurisdiction of the United States Court of Ap peals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of-
(i) whether the status determination of the Com batant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (includ ing the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the de termination is consistent with the Constitution and laws of the United States.
Soon after arriving at Guantánamo, many a detainee, either personally or through a "next friend" acting on his behalf, sought release by filing a petition for a writ of habeas corpus in the district court. Beginning in Jan uary 2006, after the DTA was enacted, some detainees, including the petitioners, filed in this court petitions seeking both review of a status determination by a CSRT and a writ of habeas corpus. See, e.g., Paracha v. Gates, No. 06-1038. In October 2006 the Congress passed and the President signed into law the Military Commissions Act (MCA), Pub. L. No. 109-366, § 7, 120 Stat. 2635-36, which stripped the district court of juris diction over habeas petitions filed by or on behalf of "an alien detained by the United States who has been deter mined by the United States to have been properly de tained as an enemy combatant or is awaiting such deter mination." MCA § 7(a), 28 U.S.C. § 2241(e)(1). Mean while, we had stayed the petitions filed in the court of appeals, including those of Bismullah and the Parhat Petitioners, pending this court's decision in Boumediene v. Bush, 476 F.3d 981, 990-91, cert. denied, -U.S. -, 127 S. Ct. 1478, 167 L. Ed. 2d 578, cert. granted, -U.S. -, 127 S. Ct. 3078, ___ L. Ed. 2d ___ (2007). In that case we held that, because the common law writ of "ha beas corpus would not have been available in 1789 to aliens without presence or property within the United States," the Congress did not violate the Suspension Clause of the Constitution, U.S. Const. art. I, § 9, cl. 2, when it stripped the federal district court of jurisdiction to hear any habeas petition filed by "an alien detained by the United States." We now take up the motions pending in the petitioners' DTA cases.
C. The Motions
In order to resolve preliminary issues before this court reviews the merits of their claims, all the petition ers filed motions to (1) enter the protective order previ ously entered by the district court in all habeas cases brought by Guantánamo detainees (Status Quo Order); (2) compel discovery, allowing the petitioners to gather all evidence available to the Government at the time the CSRT was held and to present to the court such evi dence as was not presented to the CSRT; and (3) appoint a special master to hold hearings and make factual find ings, as necessary to address disputes arising from the proposed protective and discovery orders. In his motion to compel discovery, Bismullah also seeks counsel access to (1) the Record of Proceedings (classified and unclassi fied) before his CSRT; (2) the Government Information regarding Bismullah; (3) any statements or letters in support of Bismullah; (4) other documents relating to Bismullah's CSRT, including "records, notes, memo randa and correspondence of the Tribunal members, Recorder, Personal Representative, or other person who participated in Bismullah's CSRT"; and (5) other "rea sonably available documents or information in the pos session of the U.S. government" bearing upon whether Bismullah meets the criteria to be designated an enemy combatant.
In their motion to compel discovery, the Parhat Peti tioners seek counsel access to (1) the CSRT records (classified and unclassified) for all seven Parhat Peti tioners and for 13 other Uighur men allegedly taken into custody at the same time and place; (2) records created in Kandahar, Afghanistan or Guantánamo regarding any Parhat Petitioner's status as an enemy combatant; (3) records of the State Department's effort to persuade foreign governments to grant asylum to any of the 20 Uighurs, including the Parhat Petitioners; (4) the Gov ernment's files regarding interrogation of each Parhat Petitioner; (5) records concerning the conduct of the Recorder in all CSRT proceedings concerning any of the Parhat Petitioners; (6) records concerning any visit to Guantánamo of any official of the People's Republic of China in order to interrogate any Uighur detainee, upon which interrogation the petitioners are concerned the Tribunal may have relied in designating them enemy combatants; and (7) records concerning any Parhat Petitioner's affiliation with the East Turki- stan Islamic Movement, which the Government desig nated a "terrorist organization" pursuant to 8 U.S.C. § 1182(a)(3)(B)(vi)(II) more than two years after the Parhat Petitioners allege they were captured, see 69 Fed. Reg. 23,555 (2004), and with which the Parhat Peti tioners allege, in apparent anticipation of the Govern ment Evidence, they have no affiliation.
For its part, the Government moves the court to en ter a substantially revised version of the protective or der entered by the district court (Government's Pro posed Order), before the entry of which it apparently refuses to turn over to counsel for the petitioners any classified information and "any information designated by the Government as protected information." The Gov ernment also proposes the court treat the petition filed by the seven Parhat Petitioners as seven separate peti tions.
II. Analysis
The parties fundamentally disagree about what con stitutes the record to which this court must look as it reviews a CSRT's determination that a petitioner is an enemy combatant. The parties agree that the court should enter a protective order before the Government gives counsel for the petitioners (all of whom have the requisite security clearance) access to classified and protected information, and that the protective order must provide a method for counsel to communicate to a detainee nonclassified but confidential information, in writing and in person. The parties disagree, however, over several particulars. The petitioners ask the court to enter the protective order entered by the district court in the aforementioned habeas cases, and the Gov ernment proposes a substantially different order.
A. The Record
The petitioners argue the court must look beyond the Record of Proceedings and consider all evidence reason ably available to the Government, which may include evidence neither the Recorder nor the detainee's Per sonal Representative nor the detainee put before the CSRT. In addition, they point out that many of the pro cedures specified by the Department of Defense for the conduct of a CSRT address steps to be taken before the hearing, and argue that therefore the court must have available to it information sufficient to enable review of a detainee's claim that the Government did not comply with a pre-hearing procedure. For example, Bismullah contends, on information and belief, that the Recorder for his proceeding failed to gather and examine poten tially exculpatory evidence and to present that evidence to the Tribunal. Bismullah also alleges the Tribunal acted arbitrarily and capriciously by, for example, ruling that Bismullah's brother was not "reasonably available" to testify or submit an affidavit. The Parhat Petitioners similarly allege the Recorder failed to present the Tri bunal with statements made by military interrogators advising them as early as 2003 that they soon would be released. The Parhat Petitioners also seek information regarding other Uighur detainees in order to support their claims that the Government acted arbitrarily by finding the Parhat Petitioners to be enemy combatants while finding similarly situated detainees were not en emy combatants. Finally, the petitioners contend that, even if the court does not review the Government's com pliance with pre-hearing procedures, they are entitled to discovery directed at determining whether exculpatory material was withheld from the Tribunal.
The petitioners propose not only to compel discovery but also to supplement the record with such evidence as they discover relevant to their claims. As counsel for the petitioners said at oral argument, their request is "not strictly speaking for discovery [but] for the court to have the complete record before it." Here they rely upon NRDC v. Train, 519 F.2d 287, 291-92 (D.C. Cir. 1975), in which we held that after the plaintiffs made a "substantial showing" that the EPA had not filed with the court the entire administrative record of the matter under review, they were "entitled to an opportunity to determine, by limited discovery, whether any other doc uments which [were] properly part of the administrative record had been withheld." Thus, the petitioners con tend the court appropriately considers supplemental extra-record information when the "procedural validity of the [agency's] decision" is "under scrutiny," Esch v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989), because, for example, the agency excluded documents that might have been adverse to its decision, see Kent County, Del. Levy Court v. EPA, 963 F.2d 391, 395-96 (D.C. Cir. 1992).
The Government's position is that the record before the court is properly limited to the Record of Proceed ings, as compiled by the Recorder. According to the Government, the plurality in Hamdi v. Rumsfeld, 542 U.S. 507, 538, 124 S. Ct. 2633, 159 L. Ed. 2d 578 (2004), "rejected free-wheeling discovery" for even a citizen detained as an alleged enemy combatant as long as there was a formal military proceeding "akin" to a CSRT in which the detainee could present his version of the facts. The Government believes that by directing this court to "determine the validity of any final decision of a Com batant Status Review Tribunal," DTA § 1005(e)(2)(A), the Congress intended to "evoke[ ] this Court's familiar function of reviewing a final administrative decision based upon the record before the agency." In support of that position and the lack of any need for discovery, the Government contends the Record of Proceedings is suf ficient for meaningful review by the court, because a ruling on the reasonable availability of a witness or of evidence must be made on the record; the Personal Rep resentative's communication to the detainee is largely scripted, leaving no need to produce "[his] notes, memo randa and correspondence"; and the actions of the Re corder, whose task is routine and subject to a strong "presumption of regularity," is subject to challenge by the detainee, who may testify on his own behalf, and by the detainee's Personal Representative, who may review the Government Information.
We approach questions concerning the content of the record we are to review mindful that the DTA directs this court to "determine the validity" of a Tribunal's "status determination" with particular reference to whether it was made "consistent with the standards and procedures specified by the Secretary of Defense, . . . including the requirement that the conclusion of the Tri bunal be supported by a preponderance of the evidence." DTA § 1005(e)(2). As the petitioners point out, many of the procedures specified by the Secretary relate to steps the Recorder and others must take before the Tribunal holds a hearing. In order to review compliance with those procedures, the court must be able to view the Government Information with the aid of counsel for both parties; a detainee's counsel who has seen only the sub set of the Government Information presented to the Tri bunal is in no position to aid the court. There is simply no other way for the counsel to present an argument that the Recorder withheld exculpatory evidence from the Tribunal in violation of the specified procedures. Even if the Recorder's actions are entitled to a pre sumption of regularity, as the Government main tains-but which is not at all clear because a CSRT does not have the transparent features of the ordinary admin istrative process and the Recorder is not the final agency decisionmaker, see Martino v. U.S. Dep't of Agric., 801 F.2d 1410, 1412-13 (D.C. Cir. 1986)-that presumption is not irrebuttable,3 see, e.g., NRDC v. SEC, 606 F.2d 1031, 1049 n.23 (D.C. Cir. 1979) (listing meth ods of rebutting presumption of regularity); but it would be irrebuttable, in effect, if neither petitioners' counsel nor the court could ever look behind the presumption to the actual facts. In addition, the court cannot, as the DTA charges us, consider whether a preponderance of the evidence supports the Tribunal's status determina tion without seeing all the evidence, any more than one can tell whether a fraction is more or less than one half by looking only at the numerator and not at the denomi nator.
The petitioners argue that once counsel have seen the Government Information relative to a particular detainee, they may need discovery in order to ensure "the Government has actually collected all [documents it is required to collect]." They believe, that is, they may be able to make a particularized showing of need for specific documents in addition to those obtained by the Recorder.
We deny the petitioners' motions to compel discov ery, without prejudice to renewal, because they have not made a showing sufficient to justify compelling discov ery at this stage of these proceedings. First, the peti tioners do not need discovery in order to challenge a CSRT's ruling that a requested witness or item of evi dence was not "reasonably available"; as the Govern ment points out, that ruling must be made on the record, which should be sufficient to determine whether the Tri bunal acted in accordance with the specified procedures. Nor does a detainee petitioner need information regard ing the conduct of another detainee's CSRT proceeding. Such information is not relevant to our review, and therefore not necessary for a counsel's representation of his detainee client; the Act authorizes this court to "de termine the validity of any final decision of a [CSRT]," DTA § 1005(e)(2)(A), and our jurisdiction under the Act is expressly "limited to the consideration of" whether a detainee's status determination was "consistent with the standards and procedures specified by the Secretary of Defense for [a CSRT]," including the requirement that the Tribunal's status determination be supported by a preponderance of the evidence, DTA § 1005(e)(2)(C)(i). The Act does not authorize this court to determine whether a status determination is arbitrary and capri cious because, to use the petitioners' example, it is in consistent with the status determination of another de tainee who was detained under similar circumstances. If a preponderance of the evidence in the record-broadly understood to include the Government Information and not just the Government Evidence, plus any evidence submitted by the detainee or his Personal Representa tive-supports the Tribunal's finding, then the Tribu nal's status determination must be upheld, provided, of course, the determination was otherwise made in accor dance with the "standards and procedures specified by the Secretary of Defense." DTA § 1005(e)(2)(C)(i).
B. The Protective Order
Pursuant to the All Writs Act, 28 U.S.C. § 1651, which authorizes the court to issue "all writs necessary or appropriate in aid of [its] jurisdiction[]," we shall en ter a protective order resolving the points in contention between the parties in such a way as to ensure the par ties do not frustrate the court's ability to review a CSRT determination under the DTA. Cf. Telecom. Research & Action Ctr. v. FCC, 750 F.2d 70, 75-76 (D.C. Cir. 1984) (holding pursuant to All Writs Act that court of appeals "may resolve claims of unreasonable delay [by agency] in order to protect its future jurisdiction" to review final agency action). The order we enter, following an oppor tunity for the parties to suggest changes, will be the or der proposed by the Government, as modified to con form to this opinion.
1. Counsel Access to Classified Information
The Government proposes to turn over to counsel for a petitioner only information that was presented to the CSRT and that "the Government has determined peti tioners' counsel has a 'need to know,'" which in practice the Government anticipates will mean turning over all the Government Information with limited exceptions for information that pertains to anyone other than the de tainee, highly sensitive information, and information pertaining to a highly sensitive source. Such highly sen sitive information, which the Government represents will rarely be found and redacted, would be made avail able to the court ex parte and in camera in the event the detainee seeks judicial review of his status determina tion.
Petitioners' counsel, each of whom has a security clearance, contend they have a "need to know" all infor mation about their clients' cases and related cases in order effectively to participate in the adversarial pro cess of review in court. Petitioners argue that ex parte and in camera review of highly sensitive classified infor mation, as the Government proposes, is not an adequate substitute for the judgment of counsel in identifying exculpatory evidence and evidence that the Tribunal, the Recorder, or the Personal Representative failed to com ply with the procedures specified for the conduct of a CSRT.
We think it clear that this court cannot discharge its responsibility under the DTA, particularly its responsi bility to determine whether a preponderance of the evi dence supports the Tribunal's determination, unless a petitioner's counsel has access to as much as is practical of the classified information regarding his client. Coun sel simply cannot argue, nor can the court determine, whether a preponderance of the evidence supports the Tribunal's status determination without seeing all the evidence. Therefore, we presume counsel for a detainee has a "need to know" all Government Information con cerning his client, not just the portions of the Govern ment Information presented to the Tribunal.
That presumption is overcome to the extent the Gov ernment seeks to withhold from counsel highly sensitive information, or information pertaining to a highly sensi tive source or to anyone other than the detainee but presents such evidence to the court ex parte and in cam era. Therefore, as required in the Status Quo Order, ex cept for good cause shown, the Government shall pro vide notice to counsel for the petitioners on the same day it files such information ex parte. The court does not require the Government to disclose such information to counsel because, consistent with our rule of defer ence, "[i]t is within the role of the executive to acquire and exercise the expertise of protecting national secu rity. It is not within the role of the courts to second- guess executive judgments made in furtherance of that branch's proper role." Ctr. for Nat'l Sec. Studies v. U.S. Dep't of Justice, 331 F.3d 918, 932 (D.C. Cir. 2003); Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003) ("Precisely because it is often difficult for a court to re view the classification of national security information, '[w]e anticipate that in camera review of affidavits, fol lowed if necessary by further judicial inquiry, will be the norm'").
The Government also proposes unilaterally to deter mine whether information is "protected," meaning that petitioners' counsel must keep it confidential and file under seal any document containing such information. For example, the Government would designate as "pro tected" information "reasonably expected to increase the threat of injury or harm to any person" and informa tion already designated by the Government to be "For Official Use Only" or "Law Enforcement Sensitive."
It is the court, not the Government, that has discre tion to seal a judicial record, cf. United States v. El- Sayegh, 131 F.3d 158, 160 (D.C. Cir. 1997) ( "The deci sion whether to seal a judicial record is . . . committed to the discretion of the district court"), which the public ordinarily has the right to inspect and copy, Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 55 L. Ed. 2d 570 (1978). Therefore, insofar as a party seeks to file with the court nonclassified informa tion the Government believes should be "protected," the Government must give the court a basis for withholding it from public view.
2. Counsel Access to Detainees
Both the Status Quo Order and the Government's Proposed Order define "legal mail" as correspondence between a detainee and his counsel with respect to sub jects properly within the scope of counsel's representa tion. The parties do not disagree about the rules gov erning mail sent by a detainee to his counsel, but they do disagree about how mail from counsel to the detainee client should be handled and about the scope of counsel's representation under the DTA.
Under both proposed Orders, a Privilege Team com posed of Department of Defense personnel would open an envelope labeled as legal mail and addressed to a de tainee. Under the Status Quo Order, the Privilege Team would search legal mail only for contraband, such as staples, paper clips, or other nonpaper items; under the Government's Proposed Order, however, legal mail would be searched for prohibited content, that is, any thing outside the scope of the attorney's representation (of which more below). The Government's Proposed Order also would limit "legal mail" to:
documents and drafts of documents that are intended for filing in this action and correspondence directly related to those documents that-
i. are directly related to the litigation of this [DTA] action [and]
ii. address only (a) those events leading up to this detainee's capture or (b) the conduct of the CSRT proceeding relating to this detainee[,]
thereby implicitly but effectively limiting the scope of counsel's representation to the DTA action. The Govern ment's Proposed Order also would expressly prohibit counsel from communicating any information outside the scope of their representation.
The petitioners object to this regime, first pointing out that under the Status Quo Order, counsel have long been prohibited from telling a detainee about:
ongoing or completed military intelligence, security, or law enforcement operations, investigations, or arrests . . . or current political events in any coun try that are not directly related to counsel's repre sentation of that detainee.
Because their counsel have never breached this provi sion, the petitioners claim the Government does not need to screen for content any legal mail their counsel might send them. The Government responds that while the Status Quo Order was in effect, some counsel- though the Government does not suggest counsel for the present petitioners-did use legal mail to inform their clients about prohibited subjects, including military op erations in Iraq, terrorist attacks, Hezbollah's attack upon Israel, and the abuse at Abu Ghraib prison. The Government asserts such information can "incite detain ees to violence" or cause "unrest," such as a riot, hunger strike, or suicide-as, indeed, it has done in the past.
At the least, the petitioners contend, counsel may legitimately represent the detainees in efforts to find alternate ways of ending their detention, including dip lomatic means, and therefore must be able to correspond with the detainees regarding such alternatives; for ex ample, they might want to correspond concerning which countries are suitable for seeking asylum. Using nonle gal mail is not a good alternative to using legal mail, they say, because it is very slow and heavily redacted. Moreover, the petitioners assert the attorney-client privilege, which is intended to "encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the obser vance of law and the administration of justice," Swidler & Berlin v. United States, 524 U.S. 399, 403, 118 S. Ct. 2081, 141 L. Ed. 2d 379 (1998) (internal quotation marks omitted), applies to the communications between counsel and the detainees.
Without expressing any view as to whether the attorney-client privilege applies in this context, we must agree that "full and frank communication" between a detainee and his counsel will help counsel present the detainee's case to the court, and thereby aid the process of review with which we have been charged by the Con gress. Regrettably, however, we cannot disagree with the Government that past breaches of the Status Quo Order by some counsel for detainees justify the Govern ment's proposal to narrow the topics about which all counsel may correspond with a detainee and to hold all counsel accountable by screening the legal mail they send to their detainee clients.
Relatedly, we agree with the Government that the scope of representation authorized by the DTA is lim ited, in the words of the Act, to the pursuit of judicial review to "determine the validity of any final decision of a [CSRT]." We read the Government's proposal, how ever, to limit the content of the correspondence between petitioners and their counsel to "those events leading up to this detainee's capture" and the "conduct of the CSRT proceeding relating to this detainee," so as to include events occurring between the detainee's capture and his CSRT hearing, such as the claim of at least three of the Parhat Petitioners that they were told by military per sonnel as early as 2003 they would be released. This is necessary to enable counsel to follow such leads as his client can provide regarding exculpatory evidence that might be "reasonably available," but which the Recorder nonetheless failed to "obtain and examine."
In the protective order to be issued, we will include the Government's proposal to allow a Privilege Team, composed of personnel from the Department of Defense, to review legal mail in order to ensure counsel's corre spondence does not include content outside the scope of the previous paragraph. The proposed procedure protects the confidentiality of communications between counsel and the detainee by providing that the Privilege Team may not disclose the content of a communication to anyone unless counsel for a detainee seeks court in tervention to prevent the Privilege Team from screening or redacting information sent to the detainee, in which event the Privilege Team "may disclose the material at issue to a Special Litigation Team [in the Department of Justice and] . . . to the Commander [at Guantánamo] or his representatives, including attorneys for the Gov ernment." The Special Litigation Team, none of whose members may litigate the merits of a petition brought by a detainee, represents the Privilege Team in any dis pute over screened or redacted information.
3. Attorney Access to Prospective Clients
The Government refuses to give counsel access to classified information or to the legal mail system until counsel provides "written evidence" that a detainee has personally authorized counsel to represent him, even when a next friend purports to act on behalf of a de tainee. To that end, the Government proposes to allow a lawyer one visit to Guantánamo to meet with a poten tial detainee client for up to a total of eight hours in which to obtain the detainee's authorization to pursue a petition for review of the detainee's status determina tion. The Government asserts the eight-hour limit is needed to prevent an "unwieldy and unworkable situa tion," apparently referring to the burden upon the base administration of accommodating numerous visits by lawyers to meet with potential clients.
The Government believes a detainee's personal au thorization is "strongly [to be] preferred" because a pu tative next friend probably does not satisfy the require ments for standing. See Whitmore v. Arkansas, 495 U.S. 149, 163, 165, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990) (holding in habeas action "next friend" who is "truly dedicated to the best interests of the person on whose behalf he seeks to litigate" has standing to act on behalf of prisoner who is "unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability"). For one thing, each de tainee has been notified of his right to seek review under the DTA. In addition, some detainees, according to the Government, "revel in their status as enemies of the United States" and should be allowed to choose not to participate in a DTA action.
The petitioners' counsel object to the eight-hour limit upon their effort to persuade a detainee to pursue an action under the DTA because, they say, the detainees are so distrustful that it can take longer than that to persuade one to engage counsel. They propose that a lawyer be allowed to visit a detainee as a potential client twice, for an unspecified period of time, as has been al lowed until now under the Status Quo Order.
We conclude the requirement of the Status Quo Or der that a lawyer "provide evidence of . . . authority to represent the detainee . . . after the conclusion of a second visit with the detainee" is reasonable in that it allows the lawyer time to earn the detainee's trust and to discuss whether the detainee wants to file a petition for judicial review. The Government has not shown that two visits rather than one will harm its interests or over burden its resources. On the contrary, the Government itself has allowed that a detainee represented by counsel should not be limited to three visits with retained coun sel-as the Government had first proposed in this case- because, based upon an evaluation of the "resources and needs at Guantanamo" by Rear Admiral Harry B. Har ris, Commander of the Joint Task Force-Guantánamo, the Government determined such a limitation "is no lon ger warranted." Though the Government asserts its proposed one visit/eight-hour limitation upon meetings between a lawyer and a potential client is still "warran ted and appropriate in light of the operations" at Guan tánamo, it has made no showing that a lawyer's addi tional visit to see a potential client imposes any greater burden upon it than does a lawyer's additional visit to a client he or she already represents.
Counsel for Bismullah, who represent Bismullah's putative next friend, maintain they need present only "evidence of . . . authority to represent the detainee," rather than the Government's proposed consent form bearing the detainee's signature. They argue that re quiring counsel to produce evidence both that a detainee authorizes counsel to act on his behalf and that he autho rizes the filing of a petition submitted by a detainee's next friend would, in effect, "eliminate next friend cas es" by requiring "that each next friend action become a direct action."
In Whitmore, the Supreme Court concluded that the Congress, in enacting 28 U.S.C. § 2242 ("Application for a writ of habeas corpus shall be in writing signed and verified by the person for whose relief it is intended or by someone acting in his behalf"), had codified the his toric practice of allowing a "next friend" to file a petition for habeas corpus on behalf of a prisoner. 495 U.S. at 162-63, 110 S. Ct. 1717. Therefore, when the Congress later authorized this court to review the status determi nation of a CSRT upon the basis of a claim brought "by or on behalf of an alien [detainee]," DTA § 1005(e)(2)(B), we understand it to have permitted a next friend to peti tion for review of a CSRT determination when the de tainee is "unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar dis ability." Whitmore, 495 U.S. at 165, 110 S. Ct. 1717. Hence, we reject the Government's proposal to require a detainee personally to authorize a next friend to act on his behalf when a petitioner asserting next friend stand ing can demonstrate the detainee is under such a disabil ity. After two visits between a lawyer and a detainee, either the lawyer should be able to obtain the detainee's express authorization to represent him in a DTA action or the would-be next friend should be able to obtain, through the lawyer, evidence of the detainee's disability and best interests sufficient to perfect the next friend's standing. See id. We reject the Government's proposal to require that the detainee sign a form authorizing the filing of the petition submitted by a putative next friend; the inquiry into whether a would-be next friend has standing is necessarily a matter to be determined case by case.
4. Miscellaneous
We do not believe it necessary to appoint a special master to hold hearings, order discovery, or make fac tual findings because we have resolved the pending pro cedural disputes between the parties. We therefore deny without prejudice the petitioners' motion to ap point a special master.
The Government's motion that the court consider separately the claims jointly filed by the seven detainee petitioners in Parhat v. Gates is granted. In order to evaluate the merits of each Parhat Petitioner's claims, we must review a separate record of that petitioner's status determination. Accordingly, each Parhat Peti tioner will be assigned a separate case number and each case will be separately briefed and assigned to a merits panel, absent further order of this court, see Handbook of Practice and Internal Procedures, United States Court of Appeals for the District of Columbia Circuit §§ V.A. ("[C]ases involving . . . the same, similar, or related issues, may be consolidated"), III.H. (2007); Fed R. App. P. 3(b).
III. Conclusion
We conclude the record on review consists of the Government Information, that is, all "reasonably avail able information in the possession of the U.S. Govern ment bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant." We grant in part and deny in part, as explained in this opinion, both the petitioners' and the Government's mo tions for a protective order; deny without prejudice the petitioners' motions for discovery and for the appoint ment of a special master; and grant the Government's motion separately to consider the claims brought by each of the petitioners in Parhat v. Gates, No. 06-1397.
The Clerk of the Court will enter in each of these cases a Protective Order consistent with the foregoing opinion and assign a separate docket number to each Parhat Petitioner.
So ordered.
ROGERS, Circuit Judge, concurring:
Today the court sets forth the procedures to be ap plied in actions under the Detainee Treatment Act of 2005, Pub. L. No. 109-148, Div. A, tit. X, 119 Stat. 2739 ("DTA") by detainees who wish to challenge the classifi cation decision of a Combatant Status Review Tribunal ("CSRT"). I offer two observations that emphasize the unique nature of DTA actions.
First, the court sets two limitations on the attorney- client relationship. For reasons of national security, the court authorizes the inspection of legal mail. Op. at 180, 189-90. That mail, in turn, is restricted in substance to matters "directly related" to this court's limited scope of review under the DTA. DTA § 1005(e)(2)(C); see 28 U.S.C. § 2241(e)(2); Op. at 189-90. Ordinarily, legal mail is not screened for content by federal prison officials, see 28 C.F.R. §§ 540.18, 540.19, and a prison warden "may not ask the attorney to state the subject matter of [an] . . . interview," id. § 543.13(d). However, the pos ture of these cases and the questionable applicability of constitutional norms, see Boumediene v. Bush, 476 F.3d 981, 1011 (D.C. Cir.) (Rogers, J., dissenting), cert. granted, -U.S.-, 127 S. Ct. 3078, ___ L. Ed. 2d 755 (2007), add complexities. The attorney-client privilege has a common-law basis, see, e.g., In re Lindsey, 158 F.3d 1263, 1266 (D.C. Cir. 1998) (per curiam), but the Constitution has been used in various cases to enforce attorney access. See, e.g., Shillinger v. Haworth, 70 F.3d 1132, 1142 (10th Cir. 1995); Bieregu v. Reno, 59 F.3d 1445, 1459 (3d Cir. 1995); Clutchette v. Rushen, 770 F.2d 1469, 1471 (9th Cir. 1985); United States v. Nori ega, 752 F. Supp. 1032, 1033 (S.D. Fla. 1990). Regard less, zealous advocacy is needed in order to inform the court and to carry out Congress's grant of review in the DTA. The court has adopted a pragmatic balance of the needs of the court and the needs of national security as determined by the Executive, to whom the court defers. See Op. at 187-88; see also id. at 189-90. However, noth ing in the opinion would foreclose restoration of the full attorney-client relationship were the Executive to deter mine that national security no longer requires such re strictions in DTA actions or were the detainees to be in a position to invoke the jurisdiction of this court beyond the limited scope of the DTA.
Second, the court has defined the scope of the record in terms of the plain text of the DTA and the Depart ment of Defense's CSRT procedures. See Op. at 185-86. Because the court's review is for "a preponderance of the evidence," DTA § 1005(e)(2)(C)(i), the record before this court will consist of "all the information a [CSRT] is authorized to obtain and consider, pursuant to the pro cedures specified by the Secretary of Defense," Op. at 180. To the extent this court's DTA powers are intended to check the substance of CSRT determinations, the CSRT record for review will be only a partial record. It is incomplete for at least two reasons-and possibly a third.
1. Although a detainee has the power to request the consideration of evidence he may have on-hand and tes timony of "reasonably available" witnesses, he must de velop this rebuttal without knowledge of the classified information that forms the case against him. He also must do so without the benefit of counsel. Nonethe less, the detainee bears the burden of proving that he is not an "enemy combatant," a term that has proven to have an elastic nature. See Boumediene, 476 F.3d at 1011 n.14 (Rogers, J., dissenting); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 468-72, 474-75 (D.D.C. 2005).
2. The "Government Information" consists only of "such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant." Op. at 180 (quoting Memorandum from Gordon England, Secretary of the Navy, Regard ing Implementation of CSRT Procedures for Enemy Combatants at Guantanamo Bay Naval Base, Cuba, encl. 1, § E(3) (hereinafter CSRT Procedures)); cf. Protective Order § 2.I. Thus, the initial record is limited by unilat eral decisions of the Executive. If there are documents in the possession of the U.S. Government that were not gathered by the Recorder and considered by the CSRT, then the only recourse for a detainee is to seek the docu ments from the Executive as part of the DTA action and, upon obtaining them, to seek a new CSRT. Disputes about what qualifies as "reasonably available," already a key point of contention, see, e.g., Bismullah Petition for Release and Other Relief ¶¶ 165-68, 175; Pet'rs' Joint Br. in Support of Pending Motions at 23, cannot be de cided today.
3. The gap between Congress's aspirations for the DTA and the Executive's implementation of the CSRT procedures for compiling the record, which has come to light during briefing in this case, presents new questions that also cannot be resolved today. The Executive ini tially asserted a curious entitlement to a "strong pre sumption of regularity" much as is received by an ad ministrative agency subject to the requirements of the Administrative Procedure Act. See Corrected Br. of Resp'ts Addressing Pending Preliminary Motions at 66- 68; Op. at 185-86. Then, in a post-argument submission of June 1, 2007, offering to "assist the Court in under standing the process of developing the CSRT record," the Executive acknowledged that it has not utilized the procedure for compiling the CSRT record that the De partment of Defense specified in its publicly-announced procedures for conducting CSRTs. See Mot. for Leave to File Decl. Describing Process of Compiling CSRT Record (June 1, 2007); Decl. of Rear Admiral (Retired) James M. McGarrah (May 31, 2007).4 In particular, "due to the other extensive responsibilities of the Recorder," McGarrah Decl. ¶ 4, since September 1, 2004, the De partment of Defense has construed its own requirement that "the Recorder shall obtain and examine the Govern ment Information," CSRT Procedures encl. 2, § C(1), to permit the evidence to be sorted and assessed not by the Recorder, who must be "a commissioned officer serving in the grade of O-3 or above, preferably a judge advo cate, appointed by the Director, CSRT," id. encl. 1, § C(2), but rather by a "Case Writer," who "received approximately two weeks of training," McGarrah Decl. ¶ 5.
Inasmuch as the DTA was designed to "legitimiz[e], through congressional action, what the Administration has done at Guantanamo Bay," 151 Cong. Rec. S11073 (Oct. 5, 2005) (statement of Sen. Graham), the Execu tive's belated revelation regarding the record used for CSRT proceedings is unsettling. As relevant, it leaves undetermined whether the court will be in a position to conduct the substantive evaluation, as the DTA directs, of whether a challenged CSRT determination is sup ported by a preponderance of the evidence, see DTA § 1005(e)(2)(C)(i). The Executive has previously argued to this court that the CSRT process in the DTA was de signed as an adequate replacement for the writ of ha beas corpus, see Supplemental Br. of the Federal Par ties Addressing the Detainee Treatment Act of 2005, at 49-53, Boumediene v. Bush, 476 F.3d 981 (2007). Reve lations that evidence is summarized by an anonymous "research, collection, and coordination team," McGarrah Decl. ¶ 4, whose activities have left "some of the[ ] elec tronic files . . . corrupted," id. ¶ 16, reinforce concerns about the adequacy of actions under the DTA as a sub stitute for the writ of habeas corpus. See Boumediene, 476 F.3d at 1004-07 (Rogers, J., dissenting).
PROTECTIVE ORDER
This matter comes before the court upon the parties' motions for a protective order to prevent the unautho rized disclosure or dissemination of classified national security information and other protected information that may be reviewed by, made available to, or is other wise in the possession of, the Petitioner or Petitioner's Counsel in this case, and upon the Government's motion to amend the initial Protective Order. Pursuant to the general supervisory authority of the court, and for good cause shown,
IT IS ORDERED:
1. General Provisions
A. The court finds that this case involves classified na tional security information or documents, the stor age, handling and control of which require special security precautions, and access to which requires a security clearance and a "need to know." This case may also involve other protected information or doc uments, the storage, handling and control of which may require special precautions in order to protect the security of United States personnel and facilities, and other significant interests.
B. The purpose of this Protective Order is to establish the procedures that must be followed by a Petitioner, Petitioner's Counsel, and all other individuals who receive access to classified information or docu ments, or other protected information or documents, in connection with this case, including the Depart ment of Defense (DoD) Privilege Team.
C. The procedures set forth in this Protective Order will apply to all aspects of this case, and may be modified by further order of the court sua sponte or upon ap plication by any party. The court will retain continu ing jurisdiction to enforce or modify the terms of this Order.
D. Nothing in this Order is intended to or does preclude the use of classified information by the Government as otherwise authorized by law outside of this action under the Detainee Treatment Act.
E. Petitioner's Counsel of record is responsible for ad vising his or her partners, associates, and employees, the Petitioner, and others of the contents of this Pro tective Order, as appropriate or needed.
F. All documents marked as classified, and information contained therein, remain classified unless the docu ments bear a clear indication that they have been declassified or determined to be unclassified by the agency or department that is the original classifica tion authority of the document or of the information contained therein.
G. Any violation of this Protective Order may result in a sanction for contempt.
2. Designation of Court Security Officer
The court designates Christine E. Gunning as Court Security Officer ("CSO") for these cases, and Jenni fer H. Campbell, Erin E. Hogarty, Joan B. Kennedy, Charline A. DaSilva, Nathaniel A. Johnson, Daniel O. Hartenstine, Michael P. Macisso, James P. Londer gan, Barbara J. Russell and Miguel A. Ferrer as Al ternate CSOs, for the purpose of providing security arrangements necessary to protect from unautho rized disclosure any classified documents or informa tion, or protected documents or information, to be made available in connection with these cases. Peti tioners' Counsel must seek guidance from the CSO with regard to appropriate storage, handling, trans mittal, and use of classified documents or informa tion.
3. Definitions
A. "Detainee" means an alien detained by the DoD as an alleged enemy combatant at the U.S. Naval Base at Guantánamo Bay, Cuba.
B. "Petitioner" means a Detainee or a "next friend" act ing on his behalf.
C. "Petitioner's Counsel" includes a lawyer who is em ployed or retained by or on behalf of a Detainee for purposes of representing the Detainee in this litiga tion, as well as co-counsel, interpreters, translators, paralegals, investigators, and all other personnel or support staff employed or engaged to assist in this litigation.
D. As used herein, the words "documents" and "infor mation" include, but are not limited to, all written or printed matter of any kind, formal or informal, in cluding originals, conforming copies and non-con forming copies (whether different from the original by reason of notation made on such copies or other wise), and further include, but are not limited to:
i. papers, correspondence, memoranda, notes, let ters, reports, summaries, photographs, maps, charts, graphs, interoffice and intraoffice commu nications, notations of any sort concerning conver sations, meetings, or other communications, bulle tins, teletypes, telegrams, telefacsimiles, invoices, worksheets; and drafts, alterations, modifications, changes and amendments of any kind thereto;
ii. graphic or oral records or representations of any kind, including, but not limited to, photographs, charts, graphs, microfiche, microfilm, videotapes, sound recordings of any kind, and motion pictures;
iii. electronic, mechanical or electric records of any kind, including, but not limited to, tapes, cas settes, disks, recordings, electronic mail, films, typewriter ribbons, word processing or other com puter tapes or disks, and all manner of electronic data processing storage; and
iv. information acquired orally.
E. The terms "classified documents" and "classified in formation" refer to:
i. any document or information that has been classi fied by any Executive Branch agency in the inter ests of national security or pursuant to Executive Order, including Executive Order 12958, as amended, or its predecessor Orders, as "CONFI DENTIAL," "SECRET," or "TOP SECRET," or additionally controlled as "SENSITIVE COM PARTMENTED INFORMATION (SCI)," or any classified information contained in such document;
ii. any document or information, regardless of its physical characteristics, now or formerly in the possession of a private party that has been derived from United States Government information that was classified, regardless of whether such docu ment or information has subsequently been classi fied by the Government pursuant to Executive Order, including Executive Order 12958, as amen ded, or its predecessor Orders, as "CONFIDEN TIAL," "SECRET," or "TOP SECRET," or addi tionally controlled as "SENSITIVE COMPART MENTED INFORMATION (SCI)";
iii. oral or nondocumentary classified information known to the Petitioner or Petitioner's Counsel; or
iv. any document or information as to which the Peti tioner or Petitioner's Counsel has been notified orally or in writing that such document or infor mation contains classified information.
F. The terms "protected documents" and "protected information" refer to any document or information deemed by the court, either upon application by the Government or sua sponte, to require special precau tions in storage, handling, and control, in order to protect the security of United States Government personnel or facilities, or other significant govern ment interests.
G. "Access to classified information" and "access to pro tected information" mean having access to, review ing, reading, learning, or otherwise coming to know in any manner any classified information or pro tected information.
F. "Communication" means all forms of communication between Petitioner's Counsel and a Detainee, includ ing oral, written, electronic, or by any other means.
I. "Legal Mail" consists only of documents and drafts of documents that are intended for filing in this ac tion and correspondence directly related to those documents that-
i. relate directly to the litigation of this action;
ii address only (a) events leading up to the capture of the Detainee on whose behalf the petition in this action was filed, (b) events occurring between such Detainee's capture and any hearing before a Combatant Status Review Tribunal (CSRT) relat ing to such Detainee, and (c) the conduct of the CSRT proceeding relating to such Detainee; and
iii. do not include any of the following information, in any form, unless directly related to the litigation of this action:
a. information relating to any ongoing or com pleted military, intelligence, security, or law en forcement operations, investigations, or arrests, or the results of such activities, by any nation or agency;
b. information relating to current political events in any country;
c. information relating to security procedures at the Guantánamo Naval Base (including names of United States Government personnel and the layout of camp facilities) or the status of other Detainees;
d. publications, articles, reports, or other such ma terial including newspaper and other media arti cles, pamphlets, brochures, and publications by nongovernmental or advocacy organizations, or any descriptions of such material.
J. The "Record on Review" means the information de fined as "Government Information" by the Secretary of the Navy in his memorandum regarding "Imple mentation of Combatant Status Review Tribunal Pro cedures" dated July 29, 2004, to wit, all "reasonably available information in the possession of the U.S. Government bearing on the issue of whether the de tainee meets the criteria to be designated as an en emy combatant."
K. "Secure area" means a physical facility accredited or approved for the storage, handling, and control of classified information.
4. Roles and Functions of the DoD Privilege Team and Special Litigation Team
A. The "DoD Privilege Team" comprises one or more DoD attorneys and one or more intelligence or law enforcement personnel. If required, the DoD Privi lege Team may include interpreters/translators. The DoD Privilege Team is charged with representing and protecting the interests of the United States Government related to security and threat informa tion. The DoD Privilege Team is authorized to re view all communications specified in this order, in cluding written communications and other materials sent from Petitioner's Counsel to the Detainee. The DoD Privilege Team may not disclose a communica tion from Petitioner's Counsel to the Detainee other than information provided in a filing with the court and served on Government counsel, unless the disclo sure of such information is authorized by this or an other order of the court or by Petitioner's Counsel.
B. The DoD Privilege Team may redact or screen out material not meeting the definition of "Legal Mail" in section 3(I) above.
C. When the DoD Privilege Team proposes to redact or screen out material sent from Petitioner's Counsel to a Detainee, Petitioner's Counsel for that Detainee must be notified.
D. In the event a dispute regarding the screening and redaction of material from legal mail sent from Peti tioner's Counsel to a Detainee cannot be resolved by the parties and Petitioner's Counsel seeks the inter vention of this court, the DoD Privilege Team may disclose the material at issue to the Commander, JTF-Guantánamo Naval Base, or his representa tives, including counsel for the Government.
E. "Special Litigation Team" is authorized to represent the DoD Privilege Team with respect to execution of its duties. The Special Litigation Team will be com posed of one or more attorneys from the Department of Justice, who may not take part or be involved in litigating the merits of this action under the De tainee Treatment Act or any other case brought by or against the Detainee.
F. The DoD Privilege Team may, through the Special Litigation Team (see § 4(H) below), inform the court of any issues or problems related to the release or processing of information related to this case.
G. The Special Litigation Team may not disclose infor mation provided by the DoD Privilege Team or any information submitted by Petitioner's Counsel to the DoD Privilege Team for review, except as provided by this Order or as permitted by Petitioner's Coun sel or by the court.
H. Petitioner's Counsel or the Special Litigation Team may submit filings to the court concerning the DoD Privilege Team or actions taken by it.
I. Until otherwise notified, potentially privileged infor mation in such filings must be submitted to the court under seal and contain a conspicuous notation as fol lows: "Submitted Under Seal-Contains Privileged Information." To maintain such information under seal, an appropriate application must be made to the court. Such information must be maintained under seal unless and until the court determines the infor mation should not be sealed. Such filings by Peti tioner's Counsel or the Special Litigation Team may not be served on counsel for respondent, except as authorized by Petitioner's Counsel or the court. With respect to a submission made under seal, a re dacted version suitable for filing in the public record must be provided. Unresolved disputes concerning such redacted versions may be presented to the court.
J. Petitioner's Counsel may not convey to a Detainee information redacted or screened by the DoD Privi lege Team or designated for such redaction or screening, absent consent from the DoD Privilege Team, the Special Litigation Team, or the Govern ment, or authorization by this court.
5. Access to Classified Information and Documents
A. Without authorization from the Government, neither Petitioner nor Petitioner's Counsel may have access to any classified information involved in this case.
B. Petitioner's Counsel is presumed to have a "need to know" all the information in the Government's pos session concerning the Detainee he represents. This presumption is overcome to the extent the Govern ment seeks to withhold from Petitioner's Counsel highly sensitive information or information concern ing a highly sensitive source that the Government presents to the court ex parte and in camera. Except for good cause shown, the Government must provide notice to Petitioner's Counsel on the same day it files such information with the court ex parte.
C. Petitioner's Counsel to be provided access to classi fied information must execute the Memorandum of Understanding ("MOU") appended to this Protective Order, file executed originals with the court, and submit copies to the CSO and counsel for the Gov ernment. The execution and submission of the MOU is a condition precedent for Petitioner's Counsel to have initial and continuing access to classified infor mation for the purposes of this proceeding.
D. The substitution, departure, or removal of Peti tioner's Counsel from these cases for any reason will not release that person from the provisions of this Protective Order or the MOU executed in co