Bismillah (Guantanamo captive 968)
KAREN LECRAFT HENDERSON, Circuit Judge, with whom
Circuit Judges SENTELLE, RANDOLPH, and KAVANAUGH join, dissenting from the denial of rehearing en banc: The Detainee Treatment Act of 2005 (DTA) gives exclusive jurisdiction to this Court “to determine the validity of any final decision of [the] Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.” Pub. L. No. 109-148 § 1005(e)(2)(A), 119 Stat. 2680, 2742 (Dec. 30, 2005). While the DTA is not unique in this respect, to me our exclusive jurisdiction underscores the charge given to our entire Court to hear and weigh all issues fairly encompassed in determining the validity of the CSRT’s decision. Granted, we are now only at the preliminary stage of that determination, that is, resolving procedural motions. In two respects, however, I am convinced that our entire Court should hear and consider the protective order which both sides have asked us to enter. Accordingly, I dissent from the en banc denial.
I. The Scope of the Record on Review. Bismullah II attempts to correct the Government’s overreading of Bismullah I’s description of the record on review by, first, repeating the panel’s reading of the Government Information (defined by DoD Regulation E-1 § E(3)) as including only information “reasonably available” (again, specified by DoD Regulation E-1 § E(3)) and, then, by concluding that “information without regard to whether it is ‘reasonably available’ is clearly not required by Bismullah I.” Bismullah II, 503 F.3d at 141. Bismullah II, however, leaves intact the panel’s original conclusion that “whether the preponderance of the evidence supported the conclusion of the Tribunal, cannot be ascertained without consideration of all the Government Information.” Id. at 140 (citing Bismullah I, 501 F.3d at 185-86.)
Why we are unable to otherwise conduct our limited review
of the validity of the CSRT’s decision is left largely
unexplained. But in the criminal context—where the protections accorded the arrestee are greater and our review is, accordingly, more searching—our Court is plainly able to review the conduct of a preliminary hearing without knowing all the evidence the prosecution has gathered. The reason, of course, is that the preliminary hearing is limited in scope. Coleman v. Burnett, 477 F.2d 1187, 1201 (D.C. Cir. 1973) (“The preliminary hearing is not a minitrial of the issue of guilt, . . . ‘A preliminary hearing,’ the Supreme Court has said, ‘is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.’” (quoting Barber v. Page, 390 U.S. 719, 725 (1968))). So too is the CSRT’s mission: that is, at this stage, it must decide simply whether the detainee is an enemy combatant. Only if he is one can he, presumably, then be held for trial before a military commission. If we can determine 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 possession, can we not do so in reviewing the evidence supporting the “enemy combatant” designation? And should not all of us at least hear the arguments for and against, especially in the national security context? And especially given the showing the Government has made in both its unclassified and ex parte and in camera submissions? Bismullah II, 503 F.3d at 138 n.1.