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

Court	United States Court of Appeal, District of Columbia, Unites States of America, United States
Case number	06-1197; 06-1397
Decision title	On Petition for Rehearing
Decision date	3 October 2007
Parties	Haji Bismullah Huzaifa Parhat et al. Robert M. Gates
Other names	Haji Bismullah a/k/a Haji Mismillah, and a/k/a Haji Besmella Bismullah II
Categories	Terrorism
Keywords	Combatant Status Review Tribunal, enemy combatant, Guantanamo Bay, Terrorism
Links	On Petition for Rehearing
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.

On 3 October 2007, the Court of Appeals denied the US Government’s request on both aspects raised by it. First, the Court of Appeals found that the scope of the record that will be reviewed must include all the Government Information. Second, the extent to which the Government may withhold information from the detainee’s counsel should not affect the burden vested upon the Government of producing the requested Government Information.

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 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.

Related developments

On 1 February 2008, the Court of Appeals denied the US Government’s petition for a rehearing en banc (see also American Society of International Law, Bismullah v. Gates (Bismullah III) (D.C. Cir. February 1, 2008), International Law in Brief, 2008).

In May 2008, the US. Department of Justice 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 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 (CRST) 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 (p. 2).

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 (p. 2).

Core legal questions

Can the Court of Appeals grant the U.S. Government’s petition for rehearing?

Specific legal rules and provisions

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

Court's holding and analysis

The U.S. Government’s petition for rehearing related to two separate aspects of the previous decision of the Court of Appeals, namely: “the scope of the record on review before the court; and the extent to which the Government must disclose that record to the petitioners’ counsel.” (pp. 2-3).

The Court of Appeals denied the Government’s petition. With respect to the first aspect, the Court found that “the record on review must include all the Government Information, as defined by the DoD Regulations [referring here to the 2004 Memorandum for Secretary of the Navy on the establishment of a Combatant Status Review Tribunal, see p. 3 of the Decision]. If the Government did not preserve that entire body of information with respect to a particular petitioner, then it will have either to reassemble the Government Information it did collect or to convene a new CSRT [Combatant Status Review Tribunal], taking care this time to retain all the Government Information” (p. 9).

As concerns the second aspect, the Court of Appeals found that “the proportion of the Government Information that may be withheld from the petitioners’ counsel should not affect to an appreciable degree the burden upon the Government of producing the Government Information to the petitioners’ counsel” (p. 11). Accordingly, the Court of Appeals reiterated its earlier finding that “entirely ex parte review of a CSRT determination is inconsistent with effective judicial review as required by the DTA [Detainee Treatment Act] and should be avoided to the extent consistent with safeguarding classified information” (p. 12).

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, Bismullah v. Gates and Parhat et al. v. Gates, Nos. 06-1197 and 06-1397, On Petition for Rehearing En Banc and Motions, 1 February 2008;
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.