Haji Bismullah a/k/a Haji Bismillah, and a/k/a Haji Besmella v. Robert M. Gates; Huzaifa Parhat et al. v. Robert M. Gates; Abdusabour v. Robert M. Gates; Abdusemet v. Robert M. Gates; Jalal Jalaldin v. Robert M. Gates; Khalid Ali v. Robert M. Gates; Sabir Osman v. Robert M. Gates; Hammad v. Robert M. Gates and Wade F. Davis

Court	United States Court of Appeal, District of Columbia, Unites States of America, United States
Case number	06-1197; 06-1397; 07-1508; 07-1509; 07-1510; 07-1511; 07-1512; 07-1523
Decision title	Order
Decision date	1 February 2008
Parties	Haji Bismullah et al. Robert M. Gates
Other names	Haji Bismullah a/k/a Haji Bismillah, and a/k/a Haji Besmella Bismullah III
Categories	Terrorism
Keywords	Combatant Status Review Tribunal, enemy combatant, Guantanamo Bay, Terrorism
Links	Order
Other countries involved	Afghanistan Pakistan

Summary

The case relates to eight Guantanamo detainees who challenged the determination of the Combatant Status Review Tribunal (CSRT) that they are “enemy combatants”. The case comprises the petitions of Haji Bismullah on the one hand, and of Huzaifa Parhat and six other men on the other.

On 20 July 2007, the US Court of Appeals ruled that that, in order to perform a meaningful review of the CSRT determination, it must have access to the information that was available to the CSRT as well. The US Government requested a rehearing or, in the alternative, a rehearing en banc (before all judges of the Court). On 3 October 2007, the Court of Appeals denied the US Government’s request. Once more, the Government petitioned for a rehearing en banc.

The Court of Appeals denied the Government’s request for a rehearing en banc. The Court granted, however, the Government’s motion for a leave to file ex parte (which means legal proceedings conducted in the absence of one of the parties) and in camera (that is, legal proceedings conducted in private without the public or the press being present) declarations which can be reviewed by the judges only.

Procedural history

The case relates to eight Guantanamo detainees who challenged the determination of the Combatant Status Review Tribunal (CSRT) that they are “enemy combatants” (For the CSRT Materials, see here).

The case comprises the petitions of Haji Bismullah on the one hand, and of Huzaifa Parhat and six other men on the other. Bismullah was captured in Afghanistan in 2003, while Parhat and the others were captured in Pakistan in 2001.

On 20 July 2007, the US Court of Appeals ruled that in order to perform a meaningful review of the CSRT determination, it must have access to the information that was available to the CSRT as well.

The US Government requested a rehearing or, in the alternative, a rehearing en banc. On 3 October 2007, the Court of Appeals denied the request.

Related developments

In May 2008, the US. Department of Justice (DoJ) filed a motion asking the US Court of Appeals for the District of Columbia Circuit to remand the case of Bismullah to the Pentagon, or, in the alternative, hold it in abeyance. The DoJ stated that, in light of new evidence, the “enemy combatant” status of Bismullah will be reviewed by the Pentagon. See also A. Salisbury, 'Bismullah ‘Enemy Combatant’ Status to be Reviewed in Light of ‘New Evidence', Jurist, 9 May 2008.

In the wake of the Supreme Court’s ruling in Boumediene v. Bush, the Court of Appeals re-visited the petitions of the detainees on the determination made by the CSRT that they are “enemy combatants”. The Court of Appeals found that it does not have jurisdiction over the detainee’s petitions pursuant to the Supreme Court’s finding in Boumediene v. Bush, and dismissed the petitions.

On 17 January 2009, the Department of Defense announce the transfer of six Guantanamo detainees, among which, Haji Bismullah, after a determination that Bismullah should no longer be considered an enemy combatant (the decision is not publicly available). See US Department of Defense Press Release: Detainee Transfer Announced, 17 January 2009.

See also, L. Tanglen, 'US Military Announces Transfer of 6 Guantanamo Detainees', Jurist, 18 January 2009; and W. Glaberson, 'Rulings of Improper Detentions as the Bush Era Closes', The New York Times, 18 January 2009.

Legally relevant facts

The petitioners of the case are eight men detained at the US Naval Base at Guantanamo Bay (Cuba). The subject of their petition relates to a request to review the determination made by a Combatant Status Review Tribunal that they are “enemy combatants.” The suit combines two petitions, one adduced by Haji Bismullah and the other of Huzaifa Parhat and six other men. Haji Bismullah was captured in 2003 in Afghanistan, while Huzaifa Parhat and six other men in 2001 in Pakistan.

On 20 July 2007, the U.S. Court of Appeals ruled that that, in order to perform a meaningful review of the CSRT determination, it must have access to the information that was available to the CSRT as well. The U.S. Government requested a rehearing or, in the alternative, a rehearing en banc. On 3 October 2007, the Court of Appeals denied the U.S. Government’s request, reiterating its earlier findings. Once more, the Government filed a petition for a rehearing en banc.

Core legal questions

Can the Court of Appeals grant the Governments’ petition for a rehearing?

Specific legal rules and provisions

US Navy Order Establishing Combatant Status Review Tribunal.
US Detainee Treatment Act.

Court's holding and analysis

The Court of Appeals ruled against the Government’s request, denying its petition for a rehearing en banc. The per curiam decision of the Court of Appeals also dismissed as moot the Government’s motion to expedite review of the petition for rehearing en banc. The Court of Appeals granted, however, the Government’s motion for leave to file ex parte/in camera top secret declarations for the judges’ review only (p. 4).

Instruments cited

Memorandum for the Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, 7 July 2004.
US Detainee Treatment Act, Title X of Public Law 109-148, 2005.

Related cases

US Court of Appeals for the District of Columbia Circuit, Haji Bismullah, Haji Mohammad Wali v. Robert M. Gates; Huzaifa Parhat et al. v. Robert M. Gates, Case Nos. 06-1197 and 06-1397, On Motions, 20 July 2007;
US Court of Appeals for the District of Columbia Circuit, Haji Bismullah, Haji Mohammad Wali v. Robert M. Gates; and Huzaifa Parhat et al. v. Robert M. Gates, Case Nos. 06-1197; 06-1397, On Petition for Rehearing, 3 October 2007;
US Court of Appeals for the District of Columbia Circuit, Bismullah et al. v. Gates, Case No. 06-1197, On Petition for Rehearing, 9 January 2009.