Haji Bismullah, Haji Mohammad Wali 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	Appeals Judgment
Decision date	20 July 2007
Parties	Haji Bismullah Haji Mohammad Wali Huzaifa Parhat et al. Robert M. Gates
Other names	Haji Bismullah a.k.a. Haji Bismillah; a.k.a. Haji Besmella Bismullah I
Categories	Terrorism
Keywords	Combatant Status Review Tribunal, enemy combatant, Guantanamo Bay, protective order, reasonably available information, Terrorism
Links	Appeals Judgment
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.

The 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 Court of Appeals considered that these are the “reasonably available information in the possession of the U.S. Government”, without, however, hindering the Government’s ability to subject highly sensitive information to a protective order (meaning that the inspection of available information should be allowed to the detainees counsel with the exception of certain highly sensitive information, which will be available to the Court 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 in Pakistan in 2001.

Related developments

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. 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 directed that a new Combatant Status Review Tribunal be convened to consider Bismullah’s enemy combatant status, 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, where the Court found that parts of the Detainee Treatment Act was unconstitutional, 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 announced 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 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” (pp. 2; 4). 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. 4)

Core legal questions

Can the Court of Appeals grant the motions of the parties?

Specific legal rules and provisions

US Navy Order Establishing Combatant Status Review Tribunal.
Section 1005(e)(2)(A) and (C) of the US Detainee Treatment Act.
Sections 2635 and 2636 of the US Military Commissions Act.

Court's holding and analysis

The Court of Appeals found that “[i]n order to review a Tribunal’s [Combatant Status Review Tribunal’s] determination that … a detainee is an enemy combatant, the court must have access to all the information available to the Tribunal. We therefore hold that … the record on review consists of all the information a Tribunal is authorized to obtain and consider … defined 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” (pp. 2-3).

Furthermore, the Court of Appeals “enter[ed] a protective order adopting a presumption … that counsel for a detainee has a “need to know” the classified information relating to his client’s case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information” (p. 3).