Parhat, Huzaifa v. Gates, Robert

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 4, 2008 Decided June 20, 2008

No. 06-1397

HUZAIFA PARHAT,
PETITIONER

v.

ROBERT M. GATES, SECRETARY OF DEFENSE, ET AL.,
RESPONDENTS
______

On Petition for Review of an Order
of a Combatant Status Review Tribunal
______

P. Sabin Willett argued the cause for petitioner. With him
on the briefs were Susan Baker Manning, Rheba Rutkowski, Neil
McGaraghan, and Jason S. Pinney.

Gregory G. Katsas, Deputy Associate Attorney General,
U.S. Department of Justice, argued the cause for respondents.
On the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney
General, Jonathan F. Cohn, Deputy Assistant Attorney General,
and Douglas N. Letter, Robert M. Loeb, August E. Flentje,
Pamela M. Stahl, Jennifer A. Paisner, and Catherine Y.
Hancock, Attorneys.

Before: SENTELLE, Chief Judge, and GARLAND and
GRIFFITH, Circuit Judges.
 2

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: A Combatant Status Review
Tribunal has decided that petitioner Huzaifa Parhat, a detainee
at the United States Naval Base at Guantanamo Bay, Cuba, is an
“enemy combatant.” This is the first case in which this court has
considered the merits of a petition to review such a decision
under the Detainee Treatment Act of 2005. The Act grants this
court jurisdiction to “determine the validity of any final decision
of a Combatant Status Review Tribunal that an alien is properly
detained as an enemy combatant.” We conclude that the
Tribunal’s decision in Parhat’s case was not valid.

Parhat is an ethnic Uighur, who fled his home in the
People’s Republic of China in opposition to the policies of the
Chinese government. It is undisputed that he is not a member of
al Qaida or the Taliban, and that he has never participated in any
hostile action against the United States or its allies. The
Tribunal’s determination that Parhat is an enemy combatant is
based on its finding that he is “affiliated” with a Uighur
independence group, and the further finding that the group was
“associated” with al Qaida and the Taliban. The Tribunal’s
findings regarding the Uighur group rest, in key respects, on
statements in classified State and Defense Department
documents that provide no information regarding the sources of
the reporting upon which the statements are based, and
otherwise lack sufficient indicia of the statements’ reliability.
Parhat contends, with support of his own, that the Chinese
government is the source of several of the key statements.

Parhat’s principal argument on this appeal is that the record
before his Combatant Status Review Tribunal is insufficient to
support the conclusion that he is an enemy combatant, even
under the Defense Department’s own definition of that term.
We agree. To survive review under the Detainee Treatment Act,
 3

a Tribunal’s determination of a detainee’s status must be based
on evidence that both the Tribunal and the court can assess for
reliability. Because the evidence the government submitted to
Parhat’s Tribunal did not permit the Tribunal to make the
necessary assessment, and because the record on review does
not permit this court to do so, we cannot find that the
government’s designation of Parhat as an enemy combatant is
supported by a “preponderance of the evidence” and “was
consistent with the standards and procedures” established by the
Secretary of Defense, as required by the Act.

To affirm the Tribunal’s determination under such
circumstances would be to place a judicial imprimatur on an act
of essentially unreviewable executive discretion. That is not
what Congress directed us to do when it authorized judicial
review of enemy combatant determinations under the Act.
Accordingly, we direct the government to release Parhat, to
transfer him, or to expeditiously convene a new Combatant
Status Review Tribunal to consider evidence submitted in a
manner consistent with this opinion. As discussed in Part V,
this disposition is without prejudice to Parhat’s right to seek
release immediately through a writ of habeas corpus in the
district court, pursuant to the Supreme Court’s recent decision
in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S.
June 12, 2008).

We also deny, without prejudice, the government’s motion
to protect from public disclosure all nonclassified record
information that it has labeled “law enforcement sensitive,” as
well as the names and “identifying information” of all U.S.
government personnel mentioned in the record. Although we do
not doubt that there is information in these categories that
warrants protection, the government has proffered only a generic
explanation of the need for protection, providing no rationale
specific to the information actually at issue in this case.
 4

By resting its motion on generic claims, equally applicable
to all of the more than one hundred other detainee cases now
pending in this court, the government effectively “proposes
unilaterally to determine whether information is ‘protected.’”
Bismullah v. Gates, 501 F.3d 178, 188 (D.C. Cir. 2007).
Without an explanation geared to the information at issue in this
case, we are left with no way to determine whether that specific
information warrants protection -- other than to accept the
government’s own designation. But as we held in Bismullah,
“[i]t is the court, not the Government, that has discretion to seal
a judicial record, which the public ordinarily has the right to
inspect and copy.” Id. (internal citations omitted). We therefore
deny the government’s motion and direct it to file a renewed
motion, accompanied by a copy of the record identifying the
specific information it seeks to designate and pleadings
explaining why protecting that specific information is required.

I

Parhat is a Chinese citizen of Uighur heritage. Combatant
Status Review Tribunal (CSRT) Decision Report, encl. 2, at 1
(Dec. 6, 2004) (App. 14) (CSRT Decision). The Uighurs are
from the far-western Chinese province of Xinjiang, which the
Uighurs call East Turkistan. Id. According to Parhat, he fled
China in May 2001 because of “oppression and torture imposed
on [Ui]gh[u]r people by the Chinese Government.” CSRT
Exhibit R7, at 1 (App. 51) (FBI interview report dated May 11,
2002). “This oppression,” he said, “included harassment, forced
abortions for more than two children, high taxes, the taking
away of land, and the banishing of educated people to remote
areas.” Id. Parhat arrived at a Uighur camp in Afghanistan in
June 2001. CSRT Decision, encl. 2, at 1 (App. 14).

On September 11, 2001, members of al Qaida attacked the
World Trade Center and the Pentagon with hijacked commercial
 5

airplanes, killing almost three thousand people. Seven days
later, Congress authorized the President to “use all necessary
and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any
future acts of international terrorism against the United States by
such nations, organizations or persons.” Authorization To Use
Military Force (AUMF), Pub. L. 107-40, § 2(a), 115 Stat. 224,
224 (2001) (reprinted at 50 U.S.C. § 1541 note). Pursuant to the
AUMF, the President ordered the United States Armed Forces
to invade Afghanistan, where the Taliban (which then governed
the country) had been supporting and harboring al Qaida.

In mid-October 2001, U.S. aerial strikes destroyed the camp
where Parhat had been living. Thereafter, according to his
undisputed testimony, Parhat and seventeen other unarmed
Uighurs fled the camp, eventually crossing into Pakistan. Local
villagers took the Uighurs in, gave them food and shelter, and
then -- in approximately December 2001 -- handed them over to
Pakistani officials who turned them over to the U.S. military. In
June 2002, the United States transferred Parhat to the U.S. Naval
Base at Guantanamo Bay, Cuba, where he remains imprisoned.

In 2003, a military officer of the Criminal Investigation
Task Force (CITF), U.S. Department of Defense (DOD), who
was charged with reviewing Parhat’s case, “‘recommend[ed] the
release of Parhat under a conditional release agreement.’” Pet’r
Br. 6 (quoting CSRT Decision, encl. 2, at 2 (App. 15)).1

1
The following paragraph is redacted from the publicly released
copy of this opinion because it contains classified information. That
is the explanation for all of the other redactions as well. Counsel for
both Parhat and the government have full access to the unredacted
opinion.
 6

On July 7, 2004, in a memorandum to the Secretary of the
Navy, the Deputy Secretary of Defense issued an order
establishing Combatant Status Review Tribunals (CSRTs).
Order Establishing Combatant Status Review Tribunal (July 7,
2004) (DOD Order). Three weeks later, the Secretary of the
Navy, whom the DOD Order had designated “to operate and
oversee th[e] [CSRT] process,” issued a memorandum that
established the standards and procedures for those Tribunals.
Implementation of Combatant Status Review Tribunal
Procedures at 2 (July 29, 2004) (Navy Memorandum). The
Navy Memorandum describes the Tribunals as “non-adversarial
proceeding[s] to determine whether each detainee” at
Guantanamo “meets the criteria to be designated as an enemy
combatant.” Id. at E-1 § B. The Order and Memorandum both
define an “enemy combatant” 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. This includes any person who has committed
a belligerent act or has directly supported hostilities in
aid of enemy armed forces.

Id.; DOD Order at 1.

A CSRT was held for Parhat on December 6, 2004. The
proceedings consisted of an unclassified session, at which Parhat
was present and answered questions under oath, followed by a
classified session, at which Parhat was not present and in which
the Tribunal considered classified documents not made available
to him. The only evidence regarding the circumstances of
Parhat’s background and capture was his own interviews and

[Classified material redacted.]
 7

testimony. Parhat denied association with al Qaida or the
Taliban, stated that he had gone to Afghanistan solely to join the
resistance against China, and said that he regarded China alone
-- and not the United States -- as his enemy. See CSRT
Decision, encl. 3, at 3-4, 6-7 (App. 21-22, 24-25). The Tribunal
did not find to the contrary. See id. encl. 2, at 1-4 (App. 14-17).

Nonetheless, the Tribunal determined that Parhat was an
enemy combatant. It did so on the theory that he was
“affiliated” with a Uighur independence group known as the
East Turkistan Islamic Movement (ETIM), that ETIM was
“associated” with al Qaida and the Taliban, and that ETIM is
engaged in hostilities against the United States and its coalition
partners. See id. encl. 1, at 1 (App. 11). The basis for the charge
of Parhat’s “affiliation” with ETIM was that the Uighur camp at
which he lived and received training on a rifle and pistol was run
by an ETIM leader. See id. encl. 2, at 1 (App. 14); id. encl. 3, at
6 (App. 24). The Tribunal acknowledged, however, that “no
source document evidence was introduced to indicate . . . that
the Detainee had actually joined ETIM, or that he himself had
personally committed any hostile acts against the United States
or its coalition partners.” Id. encl. 2, at 3 (App. 16). The
grounds for the charges that ETIM was “associated” with al
Qaida and the Taliban, and that it is engaged in hostilities
against the United States or its coalition partners, were
statements in classified documents that do not state (or, in most
instances, even describe) the sources or rationales for those
statements. Parhat denied knowing anything about an al Qaida
or Taliban association with Uighur camps. See id. encl. 3, at 4,
6-7 (App. 22, 24-25).

Notwithstanding its determination that Parhat was an enemy
combatant, the Tribunal stated that “this Detainee does present
an attractive candidate for release.” Id. encl. 2, at 2 (App. 15).
It “urge[d] favorable consideration for release . . . and also
 8

urge[d] that he not be forcibly returned to the People’s Republic
of China” because he “will almost certainly be treated harshly
if he is returned to Chinese custody.” Id. at 4 (App. 17). The
Defense Department did not release him.

In July 2005, Parhat filed a petition for a writ of habeas
corpus in the United States District Court for the District of
Columbia. The district court concluded that its jurisdiction was
unclear and stayed Parhat’s case pending this circuit’s resolution
of appeals by other Guantanamo detainees, including the case of
Boumediene v. Bush. See Kiyemba v. Bush, No. 05-1509, Mem.
Order at 1-2 (D.D.C. Sept. 13, 2005).

In December 2005, while Boumediene was pending,
Congress passed the Detainee Treatment Act of 2005 (DTA),
Pub. L. No. 109-148, 119 Stat. 2680 (2005) (reprinted at 10
U.S.C. § 801 note). The DTA granted this court “exclusive
jurisdiction to determine the validity of any final decision of a
Combatant Status Review Tribunal that an alien is properly
detained as an enemy combatant.” DTA § 1005(e)(2)(A). But
it also provided that no court “shall have jurisdiction to . . .
consider . . . an application for a writ of habeas corpus filed by
or on behalf of an alien detained by the Department of Defense
at Guantanamo Bay, Cuba.” Id. § 1005(e)(1) (amending 28
U.S.C. § 2241). In Hamdan v. Rumsfeld, the Supreme Court
held, inter alia, that the DTA’s bar against habeas claims did not
apply to claims already pending on the date of its enactment.
126 S. Ct. 2749, 2769 (2006). Congress responded in October
2006 with the Military Commissions Act of 2006 (MCA), Pub.
L. No. 109-366, 120 Stat. 2600 (2006) (codified in part at 28
U.S.C. § 2241 & note), which restated the habeas bar, providing
that no court shall have jurisdiction to consider the habeas
application of an alien “detained by the United States who has
been determined by the United States to have been properly
detained as an enemy combatant or is awaiting such
 9

determination.” MCA § 7(a) (again amending 28 U.S.C. §
2241). The MCA further declared that the habeas bar applies
“to all cases, without exception, pending on or after the date of
the enactment of [the MCA] which relate to any aspect of the
detention . . . of an alien detained by the United States since
September 11, 2001.” Id. § 7(b).

In December 2006, Parhat filed a petition in this court for
relief under the DTA, and, in the alternative, for a writ of habeas
corpus. While Parhat’s petitions were pending, another panel of
the court decided Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.
2007). In that decision, the panel held that the MCA bars
judicial consideration of detainees’ pending habeas petitions and
that the bar is not an unconstitutional suspension of the writ. Id.
at 994. Judge Rogers dissented, concluding that the detainees
have a constitutional right to habeas and that the DTA is an
inadequate substitute. See id. at 995 (Rogers, J., dissenting).
The Supreme Court granted certiorari, 127 S. Ct. 3078 (2007),
and heard argument on December 5, 2007. On June 12, 2008,
the Court reversed the panel, holding that the detainees “have
the constitutional privilege of habeas corpus,” that the DTA’s
procedures for review of their status “are not an adequate and
effective substitute for habeas corpus,” and that the MCA
“operates as an unconstitutional suspension of the writ.”
Boumediene v. Bush, No. 06-1195, slip op. at 1-2 (U.S. June 12,
2008).

Meanwhile, the DTA petitions of numerous Guantanamo
detainees proceeded in this circuit. In Bismullah v. Gates,
decided on July 20, 2007, the court addressed a number of
procedural issues common to a group of eight DTA petitioners,
including Parhat. See 501 F.3d 178 (D.C. Cir. 2007). The
central issue was whether the record on review in this court is
limited -- as the government argued -- to the evidence actually
presented to the CSRT, or whether it includes all of the
 10

“Government Information.” Id. at 180. The latter, as defined in
the Navy Memorandum, consists of 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
designated as an enemy combatant.” Navy Memorandum at E-1
§ E(3); see 501 F.3d at 180.

Bismullah held that the record on review in this court is all
of the Government Information. 501 F.3d at 180. On
September 7, 2007, the government sought rehearing and
rehearing en banc. The panel denied rehearing on October 3,
2007, see 503 F.3d 137, and the full court denied rehearing en
banc on February 1, 2008, see 514 F.3d 1291. The government
then filed a petition for certiorari in the Supreme Court and
sought a stay from the Bismullah panel pending the Supreme
Court’s determination. The panel granted the motion in part and
stayed, pending disposition by the Supreme Court, the
government’s obligation in the eight cases to produce additional
record material beyond that presented to the CSRTs. See
Bismullah v. Gates, No. 06-1197, Order at 3-4 (D.C. Cir. Feb.
13, 2008). The government’s petition for certiorari is currently
pending.

On October 29, 2007, while its request for en banc review
in Bismullah was still under consideration, the government
produced to Parhat’s counsel the record (both classified and
unclassified) of what was actually presented to Parhat’s CSRT.
On November 1, Parhat filed a motion asking this court to
review the CSRT’s determination based solely upon that record.
While reserving his right to future review based on all of the
Government Information, to which he is entitled under
Bismullah, Parhat contended that the materials before the CSRT
are sufficient to establish as a matter of law that he is not an
enemy combatant. Further delay while the government sought
certiorari regarding his entitlement to a broader record, he
 11

argued, would be unnecessary and unjust. The government did
not oppose Parhat’s request.

On December 14, 2007, we set the case for briefing, and on
April 4, 2008 we heard argument, solely on the record before the
CSRT. See Parhat v. Gates, No. 06-1397, Order at 2 (D.C. Cir.
Dec. 14, 2007). That is the case that is presently before us.
Also before us is the government’s motion to designate as
“protected information” certain unclassified information in the
CSRT record that it has produced to counsel and the court.

II

The DTA grants this court jurisdiction to “determine the
validity of any final decision of a Combatant Status Review
Tribunal that an alien is properly detained as an enemy
combatant.” DTA § 1005(e)(2)(A). The scope of our review is
“limited to the consideration of”:

(i) whether the status determination of the [CSRT] was
consistent with the standards and procedures specified
by the Secretary of Defense for [CSRTs] (including 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 determination is
consistent with the Constitution and laws of the United
States.

Id. § 1005(e)(2)(C); see Boumediene, slip op. at 47-49 (noting
the limited nature of the DTA’s jurisdictional grant to this
 12

court). The DOD “standards and procedures” referenced in
DTA § 1005(e)(2)(C)(i) and (ii) are set out in the DOD Order
and Navy Memorandum discussed in Part I above. The
Bismullah opinion describes those standards and procedures in
detail. See 501 F.3d at 181-82; see also Boumediene, slip op. at
37 (describing the limited nature of “the procedural protections
afforded to the detainees in the CSRT hearings”). Here, we
describe only those that are relevant to our disposition.

Each CSRT is composed of “three neutral commissioned
officers.” Navy Memorandum at E-1 § C(1). The Recorder,
also a commissioned officer, is charged with gathering the
“Government Information,” which is defined as “reasonably
available information in the possession of the U.S. Government
bearing on the issue of whether the detainee” meets the enemy
combatant criteria. Id. at E-1 § E(3); see id. at E-2 § C(1). The
Recorder must present to the Tribunal both the “Government
Evidence,” defined as “such evidence in the Government
Information as may be sufficient to support the detainee’s
classification as an enemy combatant,” and any evidence in the
Government Information that is exculpatory, described as
“evidence to suggest that the detainee should not be designated
as an enemy combatant.” Id. at E-1 § H(4).

The Recorder must also make the Government Information
available to the detainee’s assigned Personal Representative, a
military officer who is “neither a lawyer [n]or an advocate,” but
who must explain the CSRT process to the detainee and may
assist the detainee in preparing for it. Id. at E-1 § F(5); id. at E-2
§ C(4); id. at E-3 §§ A, D. The Personal Representative may
view the classified evidence but may not share it with the
detainee. See id. at E-1 § F(8); id. at E-3 § C(4). The detainee’s
discussions with the Personal Representative are neither
privileged nor confidential. Id. at E-3 §§ C(1), D. The detainee
may testify or introduce relevant documentary evidence at the
 13

hearing, and may present the testimony of any witness who is
“reasonably available and whose testimony is considered by the
Tribunal to be relevant.” Id. at E-1 § F(6); see Boumediene, slip
op. at 38 (noting, in connection with this provision, that the
detainee’s “ability to rebut the Government’s evidence against
him is limited by the circumstances of his confinement and his
lack of counsel at this stage”).

The CSRT must “determine whether the preponderance of
the evidence supports the conclusion that [the] detainee meets
the criteria to be designated as an enemy combatant.” Navy
Memorandum at E-1 § G(11). There is a rebuttable presumption
that the Government Evidence is “genuine and accurate.” Id.
The Tribunal “may consider hearsay evidence, taking into
account the reliability of such evidence in the circumstances.”
Id. at E-1 § G(7).

An important DOD “standard” for our purposes is the
definition of “enemy combatant.” As noted above, the DOD
Order and the Navy Memorandum both define an “enemy
combatant” 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. This includes any person who has committed
a belligerent act or has directly supported hostilities in
aid of enemy armed forces.

DOD Order at 1; Navy Memorandum at E-1 § B.

Parhat contends that the record before his CSRT does not
support its finding that he is an enemy combatant, even under
the government’s own definition, and hence that the Tribunal’s
determination is not “consistent with the standards and
 14

procedures specified by the Secretary of Defense for Combatant
Status Review Tribunals.” DTA § 1005(e)(2)(C)(i). In the
alternative, he argues that the government’s definition is
“inconsistent with the Constitution and laws of the United
States,” id. § 1005(e)(2)(C)(ii), because it exceeds the
authorization that Congress gave the President in the AUMF.
Although he makes a number of arguments in this regard,
Parhat’s principal contention is that, by defining “enemy
combatant” as including an individual who was merely “part of
or supporting” forces “associated” with the Taliban or al Qaida,
the government exceeded the AUMF’s authorization to use force
“against those nations, organizations, or persons” that the
President determines “planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001,” or
that “harbored such organizations or persons.” AUMF § 2(a).

The government responds that the evidence before Parhat’s
CSRT does support his designation as an enemy combatant
under the DOD definition. It further maintains, based on a
theory of organizational equivalence, that this definition is
consistent with the AUMF. In the AUMF, the government
argues, Congress authorized force not only against the Taliban
and al Qaida, but also against any person or entity that is
effectively part of the same organization. See Unclassified Oral
Arg. Tr. 23-24. Moreover, even if the DOD definition is not
authorized by the AUMF, the government maintains that it is
nonetheless within the President’s constitutional authority as
Commander in Chief.

While disputing the government’s statutory and
constitutional arguments, Parhat emphasizes that we need not
reach them if we determine that the evidence that was before his
CSRT is insufficient to support his status as an enemy
combatant under the government’s own definition. Nor does the
government argue that Parhat’s status as an enemy combatant
 15

can be maintained if the evidence does not support the
government’s own regulatory definition. To the contrary, the
government recognizes that the DTA authorizes us to determine
“whether the [CSRT’s determination] was consistent with the
standards and procedures specified by the Secretary of Defense.”
DTA § 1005(e)(2)(C)(i). Accordingly, because we conclude
below that the evidence that was before the CSRT is insufficient
to categorize Parhat as an enemy combatant under DOD’s
definition, we do not reach the other issues disputed by the
parties.

III

In this Part, we describe the evidence relevant to the
CSRT’s determination that Parhat is an enemy combatant and
identify deficiencies in that evidence. In Part IV, we explain
why the record evidence is insufficient to support the Tribunal’s
determination under the DTA.

At his CSRT, Parhat repeatedly stated that his only enemy,
and the only enemy of his fellow Uighurs, is the government of
China. He testified that the Uighurs

have never been against the United States and we do
not want to be against the United States. . . . The reason
we went into Pakistan was because in China there is
torture and too much pressure on the Uighur people. .
. . The Uighur people only have the privilege of having
two children. If a female gets pregnant with a third
child, the government will forcibly take the kid through
abortion.
 16

CSRT Decision, encl. 3, at 3 (App. 21).2 Neither the CSRT nor
this court, of course, has any authority to determine whether
Parhat truly is an enemy of China. As the CSRT recognized,
“[t]he People’s Republic of China is not a coalition partner for
enemy combatant classification purposes.” Id. encl. 2, at 3
(App. 16).

Parhat also denied any association with al Qaida or the
Taliban, see id. encl. 3, at 4-7 (App. 22-25), and the CSRT did
not find him to be “an individual who was part of or supporting
Taliban or al Qaida forces,” Navy Memorandum at E-1 § B.
Nor did it find that he “committed a belligerent act or has
directly supported hostilities in aid of enemy armed forces.” Id.
To the contrary, it expressly found that he did not engage in
hostilities against the United States or the Northern Alliance (an
Afghani coalition partner of the United States), CSRT Decision,
encl. 2, at 2 (App. 15), and declared that there was “no source
document evidence . . . that the Detainee . . . himself had
personally committed any hostile acts against the United States
or its coalition partners,” id. at 3 (App. 16).

The Tribunal nonetheless determined that Parhat was an
enemy combatant. It did so on the basis of the following
finding: that Parhat “is affiliated with forces associated with al
Qaida and the Taliban (i.e., ‘the East Turkistan Islamic
Movement,’) that are engaged in hostilities against the United
States and its coalition partners.” Id. encl. 1, at 1 (App. 11).

The parties agree that, for a detainee who is not a member
of al Qaida or the Taliban, DOD’s definition establishes three
elements that the government must prove by a preponderance of
the evidence to designate an individual as an enemy combatant:

2
[Classified material redacted.]
 17

(1) the petitioner was part of or supporting “forces”; (2) those
forces were associated with al Qaida or the Taliban; and (3)
those forces are engaged in hostilities against the United States
or its coalition partners. In Parhat’s case, this means that the
government must show that: (1) Parhat was part of or
supporting ETIM; (2) ETIM was associated with al Qaida or the
Taliban; and (3) ETIM is engaged in hostilities against the
United States or its coalition partners. Accord Pet’r Br. 21-22;
Resp’t Br. 10-11, 18-19; Pet’r Reply Br. 14-15; Unclassified
Oral Arg. Tr. 21.

A

The first element of the DOD definition of enemy
combatant requires proof that Parhat was “part of or supporting”
ETIM. Neither Parhat nor any other detainee stated that Parhat
was a member of ETIM. And as the CSRT noted, “no source
document evidence was introduced to indicate . . . that the
Detainee had actually joined ETIM.” CSRT Decision, encl. 2,
at 3 (App. 16).

To support the contention that Parhat was “part of or
supporting” ETIM, the government relies on evidence that
comes almost entirely from Parhat’s own statements and those
of other Uighur detainees. Parhat stated that, when he decided
to leave China, he headed for a Uighur camp, widely known in
Xinjiang province, that was located in the Tora Bora mountains
of Afghanistan. See CSRT Exhibit R7, at 1-2 (App. 51-52) (FBI
interview report dated May 11, 2002). At the camp, he received
training on a Kalashnikov rifle and a pistol, which “consisted of
weapon disassembly and cleaning,” Pet’r Br. 18 n.22 (quoting
CSRT Exhibit R3, at 2 (App. 37))3; performed guard duty, see

3
[Classified material redacted.]
 18

CSRT Exhibit R7, at 2 (App. 52); and helped to build a house,
see CSRT Decision, encl. 3, at 6 (App. 24). He sought the
training, he said, only to fight the Chinese government. Id. encl.
1, at 2 (App. 12); id. encl. 3, at 3-4 (App. 21-22).

Parhat testified that a man named Hassan Maksum, whom
the government has identified as a leader of ETIM, was a leader
at the camp. See id. encl. 3, at 6 (App. 24). Parhat maintains
that the fact that Maksum was a leader of the camp is not enough
to make it an “ETIM camp,” and that the kind of activities in
which Parhat participated at the camp are not enough to
establish that he was “part of or supporting” ETIM. The
government argues to the contrary. We need not decide those
questions. As we discuss below, the evidence on the second and
third elements of DOD’s definition of enemy combatant, unlike
the evidence on the first, does not disclose from whence it came.
It is therefore insufficient to support the Tribunal’s
determination because it does not permit the Tribunal or this
court to assess its reliability.

B

The second element of DOD’s definition requires proof that
ETIM was “associated” with al Qaida or the Taliban. The Navy
Memorandum does not define “associated.” Parhat contends
that the term is inconsistent with the AUMF, which authorizes
the President to use force only against “those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons.”
AUMF § 2(a) (emphasis added). And he stresses that there is no
allegation that ETIM itself had anything to do with the
September 11 attacks or that it harbored any organization that
did.
 19

The government maintains that an entity that, subsequent to
September 11, becomes so closely associated with al Qaida or
the Taliban that it is effectively “part of the same organization,”
Unclassified Oral Arg Tr. 23, is covered by the AUMF because
it thereby becomes the same “organization[]” that perpetrated
the September 11 attacks, AUMF § 2(a). This argument
suggests that, even under the government’s own definition, the
evidence must establish a connection between ETIM and al
Qaida or the Taliban that is considerably closer than the
relationship suggested by the usual meaning of the word
“associated.”4 We need not decide the precise meaning of the
term,5 however, as there is a more fundamental problem with the
evidence employed by the government to prove this element.
That problem is discussed below and in Part IV.

The principal evidence supporting this element comes from
four U.S. government intelligence documents, one from the
Department of State and three from components of the
Department of Defense. The following paragraphs describe the
four documents. Because the documents are almost entirely

4
See Unclassified Oral Arg. Tr. 24 (“Judge Sentelle: So you are
dependent on the proposition that ETIM is properly defined as being
part of al Qaida, not that it aided or abetted, or aided or harbored al
Qaida, but that it’s part of [?] Mr. Katsas: Correct. . . . in order to fit
them in the AUMF.”).
5
We have recognized in a related context that two organizations
with different names may nonetheless be the same organization,
simply operating under aliases. See National Council of Resistance of
Iran v. Department of State, 251 F.3d 192, 199-200 (D.C. Cir. 2001)
(affirming the authority of the Secretary of State to designate the
NCRI as a foreign terrorist organization where the Secretary found
“that the PMOI is a foreign organization engaging in terrorist activities
. . . and that the NCRI and the PMOI are one and the same”).
 20

classified, our description is redacted from the public version of
this opinion.

[Classified material redacted.]

Finally, the government relies on the interview report of a
single Uighur detainee, Akhdar Basit, which states that Basit
told the interviewer that a leader at the camp told him that the
camp “had been provided to the Uigh[u]rs by the Taliban in
order that the Uigh[u]rs could train to fight the Chinese
oppression.” See CSRT Exhibit R4, at 2 (App. 40) (FBI
interview report dated December 9, 2002). Parhat’s own
statement was that the camp was given to the Uighurs by the
“Afghani Government.” CSRT Exhibit R6, at 1-2 (App. 49-50)
(FBI interview report dated July 19, 2003).6 Of course, the
Taliban was the “Afghani Government” in 2001, and not all
entities provided with housing by that government -- which no
doubt ranged from orphanages to terrorist organizations like al
Qaida -- were “associated” with the Taliban in a sense that
would make them enemy combatants.

In any event, the government’s reliance on Basit’s interview
report is problematic because the CSRT was not provided with
exculpatory evidence on the same point. Although the report
states that Basit said he had been told that the camp was
provided to the Uighurs by the Taliban,7 Parhat’s appellate

6
Parhat also testified that he did not “believe Osama bin Laden or
the Taliban were financially providing for the camp,” CSRT Decision,
encl. 3, at 2 (App. 20), that he saw “only Uighur people” at the camp,
id. at 6 (App. 24), and that “[t]he people in Turkistan will not associate
with al Qaida,” id. at 7 (App. 25).
7
We note that Basit testified at his own CSRT that he had “no
idea” who provided the camp. That testimony is available on DOD’s
 21

counsel has called our attention to evidence from another
Uighur’s CSRT to the effect that the Uighur camp was actually
in existence prior to the Taliban takeover of Afghanistan. See
Pet’r Br. 4; Affidavit of Susan Baker Manning (App. 192-93)
(quoting a Tribunal member’s statement in the November 30,
2004 CSRT of detainee Abdul Semet, that [classified material
redacted]). This evidence was not presented to Parhat’s CSRT.

As noted in Part II, the Navy Memorandum requires the
CSRT Recorder to present to the Tribunal any “evidence to
suggest that the detainee should not be designated as an enemy
combatant.” Navy Memorandum at E-1 § H(4). This obligation
certainly includes testimony given by other detainees in the
course of other CSRT proceedings prior to the commencement
of the detainee’s own. See id. at E-2 §§ B(1), C(1);
Boumediene, slip op. at 60-61 (noting that, under the DTA, the
detainee has “no opportunity to present evidence discovered
after the CSRT proceedings concluded” (emphasis added)). If,
in order to support the proposition that ETIM is associated with
the Taliban (a necessary element of the government’s definition
of “enemy combatant”), the government is going to rely on the
statement in Basit’s interview report that the camp he stayed in
was provided by the Taliban, then it must also give the Tribunal

website, see www.dod.mil/pubs/foi/detainees/csrt/Set_16_1363-
1446.pdf (last accessed June 9, 2008), but it was not presented to
Parhat’s CSRT. Because the website does not disclose whether
Basit’s testimony pre- or post-dated Parhat’s CSRT, it is unclear
whether we may consider it on this review. See Boumediene, slip op.
at 60-61 (holding that “the DTA review proceeding falls short of being
a constitutionally adequate substitute” for habeas because the detainee
has “no opportunity to present evidence discovered after the CSRT
proceedings concluded”).
 22

an opportunity to consider contrary evidence.8 Because the
Tribunal was not afforded that opportunity, we cannot conclude
that reliance on the interview report “was consistent with the
standards and procedures specified by the Secretary of Defense.”
DTA § 1005(e)(2)(C)(i).9 We express no opinion as to whether
the Recorder’s failure to present exculpatory evidence to the
CSRT serves as an independent ground for invalidating the
Tribunal’s entire determination.

C

Proving the third element of DOD’s definition of enemy
combatant requires evidence that ETIM engaged in hostilities
against the United States or its coalition partners. As with the

8
We also note that the government ultimately determined that
Basit was not an enemy combatant and released him from
Guantanamo, notwithstanding that -- like Parhat -- he acknowledged
that he took weapons training at the camp. See Notice by United
States of Transfer of Petitioners, Mamet v. Bush, No. 05-1886 (D.D.C.
May 5, 2006) (advising the district court that the government had
released from Guantanamo and transferred to Albania for release
certain Uighur detainees, including Basit, who were “no longer
classified as enemy combatants”).
9
The government contends that examination of statements from
other detainees’ CSRTs is contrary to the holding in Bismullah that the
DTA “does not authorize this court to determine whether a status
determination is arbitrary and capricious because . . . it is inconsistent
with the status determination of another detainee who was detained
under similar circumstances.” 501 F.3d at 186. We have not,
however, examined those statements to determine whether the
different CSRTs acted inconsistently, but rather to determine whether
the government honored its obligation to present Parhat’s CSRT with
exculpatory evidence -- as required by the “procedures specified by
the Secretary of Defense.” DTA § 1005(e)(2)(C)(i).
 23

second element, the principal evidence supporting this element
comes from the four government intelligence documents
described above. Because the documents are classified, much
of the following discussion is redacted from the public version
of this opinion. As we have previously noted, there is no
allegation or evidence that Parhat personally engaged in any
such hostilities. See CSRT Decision, encl. 2, at 2-3 (App. 15-
16); [classified material redacted].

[Classified material redacted.]

In its brief, the government seeks further support in two
unclassified lists that designate ETIM as a terrorist organization,
one established by the Department of State and the other by a
United Nations Security Council committee. Neither list
discloses the grounds upon which the designation was made.10
In any event, because neither list was submitted to Parhat’s
CSRT, neither can be relied upon to support its determination
here.

IV

As Part III indicates, the principal evidence against Parhat
regarding the second and third elements of DOD’s definition of
enemy combatant consists of four government intelligence
documents. The documents make assertions -- often in haec
verba -- about activities undertaken by ETIM, and about that
organization’s relationship to al Qaida and the Taliban. The
documents repeatedly describe those activities and relationships
as having “reportedly” occurred, as being “said to” or “reported
to” have happened, and as things that “may” be true or are
“suspected of” having taken place. But in virtually every

10
[Classified material redacted.]
 24

instance, the documents do not say who “reported” or “said” or
“suspected” those things.11 Nor do they provide any of the
underlying reporting upon which the documents’ bottom-line
assertions are founded, nor any assessment of the reliability of
that reporting. Because of those omissions, the Tribunal could
not and this court cannot assess the reliability of the assertions
in the documents. And because of this deficiency, those bare
assertions cannot sustain the determination that Parhat is an
enemy combatant.12

The CSRT’s obligation to assess the reliability of evidence
is expressly stated in the Navy Memorandum’s provision on
“Admissibility of Evidence.” This provision states that the
Tribunal may consider hearsay evidence -- which the
intelligence reports plainly are -- but in so doing it must “tak[e]
into account the reliability of such evidence in the
circumstances.” Navy Memorandum at E-1 § G(7). That
obligation, and the concomitant requirement that reliability be
assessable, are also inherent in the Memorandum’s direction --

11
The only exception is the reference in three of the documents,
which is repeated in almost identical language in each, to a statement
by an unnamed Uighur detainee at Guantanamo: [Classified material
redacted.] The government did not provide the CSRT (or the court)
with the interview report of that detainee, notwithstanding that it did
provide the report of another detainee upon which it relied for a
different point. See CSRT Exhibit R4 (App. 46) (FBI interview report
of Akhdar Qasem Basit). Thus, the CSRT had no opportunity to
assess how the unnamed detainee obtained this information, or to see
how the government interviewer assessed the detainee’s reliability,
[classified material redacted], or otherwise to do so on its own.
12
As we noted in Part III, several statements in the intelligence
documents also appear to be inconsistent with the government’s theory
that ETIM and al Qaida or the Taliban are the same “organization” for
purposes of the AUMF.
 25

adopted by Congress in the DTA -- that the CSRT must decide
whether “a preponderance of the evidence” supports the
determination that the detainee is an enemy combatant. Id. at E-
1 § G(11); see DTA § 1005(e)(2)(C)(i). As the Supreme Court
explained in Concrete Pipe, in the course of discussing the
nature of “the burden of showing something by a
‘preponderance of the evidence’”: “Before any such burden can
be satisfied in the first instance, the factfinder must evaluate the
raw evidence, finding it to be sufficiently reliable and
sufficiently probative to demonstrate the truth of the asserted
proposition with the requisite degree of certainty.” Concrete
Pipe & Prods., Inc. v. Construction Laborers Pension Trust, 508
U.S. 602, 622 (1993).13 Both the obligation and the requirement
likewise flow from the Memorandum’s establishment of a
“rebuttable presumption that the Government Evidence is
‘genuine and accurate.’” Navy Memorandum at E-1 § G(11)
(emphasis added). If a Tribunal cannot assess the reliability of
the government’s evidence, then the “rebuttable” presumption
becomes effectively irrebuttable. Cf. Bismullah, 501 F.3d at 186
(noting that a rebuttable presumption of regularity “would be
irrebuttable, in effect, if neither petitioners’ counsel nor the
court could ever look behind the presumption to the actual
facts”).

This court, in turn, has two responsibilities with respect to
the reliability of the evidence presented to the CSRT. First, in
order to judge “whether the [CSRT’s determination] was
consistent with the standards and procedures specified by the
Secretary of Defense for Combatant Status Review Tribunals,”

13
See Singletary v. Reilly, 452 F.3d 868, 873 (D.C. Cir. 2006)
(holding that hearsay presented at a parole board hearing “was not
demonstrated to be reliable and that the Board’s decision to revoke
[the appellant’s] parole was therefore totally lacking in evidentiary
support” (internal quotation marks and citation omitted)).
 26

DTA § 1005(e)(2)(C)(i), we must assure ourselves that the
CSRT had the opportunity to -- and did -- evaluate the reliability
of the evidence it considered. Second, in order to ensure, as the
DTA requires, that “the conclusion of the Tribunal [is]
supported by a preponderance of the evidence,” allowing only
a “rebuttable” presumption in favor of the Government’s
evidence, id., we must be able to assess the reliability of that
evidence ourselves.

Insistence that the Tribunal and court have an opportunity
to assess the reliability of the record evidence is not simply a
theoretical exercise. Parhat contends that the ultimate source of
key assertions in the four intelligence documents is the
government of the People’s Republic of China, and he offers
substantial support for that contention.14 Parhat further
maintains that Chinese reporting on the subject of the Uighurs
cannot be regarded as objective, and offers substantial support
for that proposition as well.15

The CSRT’s own written decision makes clear both its
inability to assess the reliability of most of the evidence
presented to it and the importance of its being able to do so.
Although the cover sheet of the Tribunal’s decision reaches the
bottom-line conclusion that Parhat “is properly designated as an
enemy combatant” because he “is affiliated with forces
associated with al Qaida and the Taliban (i.e., the ‘East
Turkistan Islamic Movement,’) which are engaged in hostilities
against the United States or its coalition partners,” CSRT
Decision, Cover Sheet (App. 10), the underlying decision is
considerably more qualified. It states: “The Tribunal found the
Detainee to be an enemy combatant because of his apparent

14
[Classified material redacted.]
15
[Classified material redacted.]
 27

ETIM affiliation . . . [classified material redacted], but despite
the fact that the ETIM is said to be making plans for future
terrorist activities against U.S. interests, no source document
evidence was introduced to indicate how this group has actually
done so . . . .” Id. encl. 2, at 3 (App. 16) (emphases added). It
further states that the “Detainee is considered to be an enemy
combatant because he is said to be affiliated with the ETIM,”
and that “[t]he camp at which he trained was an ETIM camp
apparently funded in part by Usama bin Laden and the Taliban.”
Id. at 1 (App. 14) (emphases added); see also id. at 2 (App. 15)
(referring again to Parhat’s “alleged ETIM affiliation”
(emphasis added)).

Moreover, in the two instances in which the CSRT did have
exogenous information with which to assess the reliability of
statements made in the intelligence documents, it found
sufficient discrepancies to question one statement and to “doubt
the veracity” of the other. Id. at 2-3 (App. 15-16).16 The
Tribunal plainly fulfilled its obligation to evaluate the reliability
of those two statements. In doing so, it performed the kind of
assessment that a CSRT must make in order to determine
whether a detainee has been properly classified as an enemy
combatant. And yet, that is precisely the kind of assessment that
the Tribunal could not make with respect to the bulk of the
evidence before it.

The government does not dispute that DOD’s standards and
procedures require that the CSRT be able to assess the reliability
of the record evidence. See Unclassified Oral Arg. Tr. 39. It
argues, however, that the Tribunal was able to do so here -- for
two reasons.

16
The two instances, which we discuss in this footnote, involve
classified information. [Classified material redacted.]
 28

First, the government suggests that several of the assertions
in the intelligence documents are reliable because they are made
in at least three different documents. We are not persuaded.
Lewis Carroll notwithstanding, the fact that the government has
“said it thrice” does not make an allegation true. See LEWIS
CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said
it thrice: What I tell you three times is true.”). In fact, we have
no basis for concluding that there are independent sources for
the documents’ thrice-made assertions. To the contrary, as
noted in Part III, many of those assertions are made in identical
language, suggesting that later documents may merely be citing
earlier ones, and hence that all may ultimately derive from a
single source. And as we have also noted, Parhat has made a
credible argument that -- at least for some of the assertions -- the
common source is the Chinese government, which may be less
than objective with respect to the Uighurs. Other assertions in
the documents may ultimately rely on interview reports (not
provided to the Tribunal) of Uighur detainees, who may have
had no first-hand knowledge and whose speculations may have
been transformed into certainties in the course of being repeated
by report writers.

Second, the government insists that the statements made in
the documents are reliable because the State and Defense
Departments would not have put them in intelligence documents
were that not the case. This comes perilously close to
suggesting that whatever the government says must be treated as
true, thus rendering superfluous both the role of the Tribunal and
the role that Congress assigned to this court. We do not in fact
know that the departments regard the statements in those
documents as reliable; the repeated insertion of qualifiers
indicating that events are “reported” or “said” or “suspected” to
have occurred suggests at least some skepticism. Nor do we
know whether the departments rely on those documents for
decisionmaking purposes in the form in which they were
 29

presented to the Tribunal, or whether they supplement them with
backup documentation and reliability assessments before using
them to take actions of consequence.

To be clear, we do not suggest that hearsay evidence is
never reliable -- only that it must be presented in a form, or with
sufficient additional information, that permits the Tribunal and
court to assess its reliability. Nor do we suggest that the
government must always submit the underlying basis for its
factual assertions in order to make such an assessment possible.
In many cases, such submissions will be advisable and
reasonably available: the detainees’ counsel are cleared for
classified information, and, where its source is highly sensitive,
Bismullah held that it can be shown to the court (and CSRT)
alone. See 501 F.3d at 180 (“[T]he Government may withhold
from counsel, but not from the court, certain highly sensitive
information.”). But there may well be other forms in which the
government can submit information that will permit an
appropriate assessment of the information’s reliability while
protecting the anonymity of a highly sensitive source. Courts
have frequently relied on such methods in the Fourth
Amendment context,17 and have permitted the use of appropriate
nonclassified substitutions under the Classified Information

17
Cf. Rugendorf v. United States, 376 U.S. 528, 533 (1964)
(holding that a search warrant affidavit that withholds the name of an
informant is not deficient “so long as there [is] a substantial basis for
crediting the hearsay” based on other information (internal quotation
marks and citation omitted)); United States v. Laws, 808 F.2d 92, 95
(D.C. Cir. 1986) (affirming the sufficiency of a warrant based on a
confidential informant’s tip where there was “substantial reason to
believe that . . . the hearsay is reliable”).
 30

Procedures Act (CIPA).18 Indeed, the Navy Memorandum
expressly directs agencies with “reasonably available
information . . . bearing on the issue of whether the detainee
meets the criteria to be designated as an enemy combatant”
either to provide the information to the Tribunal or to provide
“an acceptable substitute,” which “may include an unclassified
or, if not possible, a lesser classified, summary of the
information.” Navy Memorandum at E-1 § E(3).

In this opinion, we neither prescribe nor proscribe possible
ways in which the government may demonstrate the reliability
of its evidence. We merely reject the government’s contention
that it can prevail by submitting documents that read as if they
were indictments or civil complaints, and that simply assert as
facts the elements required to prove that a detainee falls within
the definition of enemy combatant. To do otherwise would
require the courts to rubber-stamp the government’s charges, in
contravention of our understanding that Congress intended the
court “to engage in meaningful review of the record.”
Bismullah, 503 F.3d at 180 (emphasis added); see Boumediene,
slip op. at 49 (stating that the “DTA should be interpreted to
accord some latitude to the Court of Appeals to fashion
procedures necessary to make its review function a meaningful
one”).

V

Having concluded that the evidence before the CSRT was
insufficient to sustain its determination that Parhat is an enemy
combatant, we are left with the question of remedy. Parhat avers
that, while remand for a new CSRT may be appropriate in the

18
See CIPA, 18 U.S.C. App. III, § 4; United States v. Rezaq, 134
F.3d 1121, 1142-43 (D.C. Cir. 1998).
 31

“usual” case in which the flaws a court identifies in the record
evidence are capable of correction, see Unclassified Oral Arg.
Tr. 12, his case is different because the CSRT’s errors “cannot
be cured,” Pet’r Br. 24. Remand here would serve no purpose,
he maintains, because the record on review is “the best record
the Government’s ever going to have in this case,” and the
government has no more reliable evidence to produce.
Unclassified Oral Arg. Tr. 12. He thus urges the court to order
that he be released or transferred to a country “other than China
or any of its satellites.” Pet’r Br. 27 n.31; see Unclassified Oral
Arg. Tr. 18.

Although we are cognizant of the time that Parhat has
already spent in detention, the procedural posture of this case
counsels against our directing immediate release or transfer and
in favor of giving the government the option of holding another
CSRT. At Parhat’s behest, we have limited our review to the
evidence presented to his CSRT, without awaiting the
production of all of the “Government Information” as required
by Bismullah. We therefore cannot know whether the
government has additional evidence that would cure the
reliability issues we have identified.

This is not to suggest, however, that we will countenance
the “endless ‘do-overs’” that Parhat fears. Pet’r Br. 27. Even
the government concedes that the case for release will be
“substantially stronger” if it falls short after a second CSRT.
Unclassified Oral Arg. Tr. 46. And while the DTA does not
expressly grant the court release authority, there is a strong
argument (which the Supreme Court left unresolved in
Boumediene, see slip op. at 59, 63, and which we need not
resolve today) that it is implicit in our authority to determine
whether the government has sustained its burden of proving that
a detainee is an enemy combatant. Were that not the case, the
DTA would consign the court to issuing an endless series of
 32

effectively advisory opinions on the quality of the government’s
evidence, a task we doubt Congress had in mind for the Judicial
Branch.

We also note that DTA review is not Parhat’s only, or his
best, path to release. Boumediene made it quite clear that, at
least for a detainee like Parhat who has been imprisoned for a
lengthy period and has already had a CSRT, a habeas corpus
proceeding in the district court is also available. See
Boumediene, slip op. at 65-66. He may pursue such a
proceeding immediately, without waiting to learn whether the
government will convene another CSRT. See id. at 66 (“The
detainees in these cases are entitled to a prompt habeas corpus
hearing.”); id. (holding that “both the DTA and the CSRT
process remain intact” and that “the petitioners in these cases
need not exhaust the [DTA] review procedures in the Court of
Appeals before proceeding with their habeas actions in the
District Court”). The habeas proceeding will have procedures
that are more protective of Parhat’s rights than those available
under the DTA. See id. at 49 (holding that the DTA’s review
procedures are not “as extensive or as protective of the rights of
the detainees as they would be in a § 2241 proceeding”). In that
proceeding, he will be able to make use of the determinations we
have made today regarding the decision of his CSRT, and he
will be able to raise issues that we did not reach. Most
important, in that proceeding there is no question but that the
court will have the power to order him released. Id. at 58
(holding that the habeas court has “authority to . . . issue
appropriate orders for relief, including, if necessary, an order
directing the prisoner’s release”); see also id. at 50.
 33

Accordingly, we direct the government to release Parhat, to
transfer him,19 or to expeditiously convene a new CSRT to
consider evidence submitted in a manner consistent with this
opinion. If the government chooses the latter course, it must --
to obviate the need for another remand -- present to that
Tribunal the best record of Parhat’s status as an enemy
combatant that it is prepared to make.

VI

Finally, we address the government’s motion to designate
as “protected information,” and thus to bar from public
disclosure, two categories of unclassified information in the
record on review.

In Bismullah, the government “propose[d] unilaterally to
determine whether [unclassified] information is ‘protected,’
meaning that petitioners’ counsel must keep it confidential and
file under seal any document containing such information.” 501
F.3d at 188. “For example, the government would designate as
‘protected’ information ‘reasonably expected to increase the
threat of injury or harm to any person’ and information already
designated by the Government to be ‘For Official Use Only’ or
‘Law Enforcement Sensitive.’” Id. The court rejected this
proposal, holding that, “insofar as a party seeks to file with the
court nonclassified information the Government believes should
be ‘protected,’ the Government must give the court a basis for
withholding it from public view.” Id.

19
The government is under district court order to give 30 days’
notice of intent to remove Parhat from Guantanamo. See Kiyemba v.
Bush, No. 05-1509, Mem. Order at 2-3 (D.D.C. Sept. 13, 2005).
 34

In order to establish procedures for the handling of
protected information, the Bismullah court adopted a protective
order applicable to a group of eight DTA cases that included
Parhat’s. The order states: “The Government may apply to the
court to deem any information ‘protected,’ and if filed in this
court to be maintained under seal. Such information must be
maintained under seal unless and until the court determines the
information should not be designated as ‘protected.’”
Bismullah, No. 06-1197, Protective Order § 7.A (as amended
Oct. 23, 2007). The order defines “protected information” as:
“any . . . information deemed by the court, either upon
application by the Government or sua sponte, to require special
precautions in storage, handling, and control, in order to protect
the security of United States Government personnel or facilities,
or other significant government interests.” Id. § 3.F.
Information deemed protected under the order can be viewed by
opposing counsel but not by the public. Id. § 7.B. Classified
material is treated under separate provisions of the order. See,
e.g., id. § 5.

After the court issued the decision in Bismullah, the
government filed the motion that is presently before us. It seeks
to designate as “protected” the following two categories of
unclassified information: (1) “any names and/or identifying
information of United States Government personnel,” and (2)
“any sensitive law enforcement information.” Resp’t Mot. to
Designate at 2 (Oct. 1, 2007). The government’s rationale for
protection is brief. In support of protecting the former category,
the motion states: “It is appropriate to protect from public
disclosure unclassified information identifying Government
personnel because . . . [t]he risks to the safety of those personnel
[, particularly those who often deploy to locations abroad,]
would be heightened if their involvement in the detention of
enemy combatants at Guantanamo were made public.” Id. In
support of protecting the latter category, the motion states: “It
 35

is . . . appropriate to protect Law Enforcement Sensitive
material” because public disclosure “could harm the
Government’s ongoing law enforcement activities related to the
global war against al Qaeda and its supporters.” Id. at 3.

The government filed the instant motion in identical form
in over one hundred other pending DTA cases. At the time it
filed the motion, the government had not yet provided Parhat’s
counsel -- or counsel for any of the other petitioners -- with the
record on review.20 A fortiori, it had not yet submitted the
designations of the information it regarded as falling into the
protected categories. Granting the motion under those
circumstances, without knowing which material the government
would ultimately designate, would be indistinguishable from
permitting the government “unilaterally to determine whether
information is ‘protected.’” Bismullah, 501 F.3d at 188.
Bismullah plainly bars that result.

The designation problem has not yet been completely
resolved, even in Parhat’s case. Although the government has
now provided the court and Parhat’s counsel with his CSRT
record, its method of designating material as protected is less
than clear. Some pages have been marked with the inscription
“LES” for “Law Enforcement Sensitive,” without indicating
whether the designation is intended to apply to all material on
the page. Some pages contain blacked-out lines that appear to
be intended as redactions, although the underlying words are
still legible. (We understand from oral argument that some of
what appear as black-outs were intended as highlights.) And
some lines are completely blacked out, making review by the

20
The government has not yet provided the full record on review
as defined in Bismullah in any DTA case, and it has not provided the
full CSRT record in many cases.
 36

court impossible and acceptance of the government’s unilateral
determination the only ground upon which the material could be
protected.

But correction of the government’s marking protocol will
not cure the underlying flaw in the government’s motion. As set
forth above, the motion relies solely on spare, generic assertions
of the need to protect information in the two categories it
identifies. The government does not “give the court a basis for
withholding” that is specific to the information it has designated
in this case. Bismullah, 501 F.3d at 188. Nor does it offer any
basis upon which we may determine whether the information it
has designated properly falls within the categories it has
described.

We do not doubt that there is sensitive law enforcement
information that warrants protection from disclosure. Nor does
counsel for Parhat. See Pet’r Reply Br. 19. But “Law
Enforcement Sensitive” is an imprecise term; at least seven
different federal agencies define it differently. See U.S.
GOVERNMENT ACCOUNTABILITY OFFICE, GAO 06-385,
Information Sharing: The Federal Government Needs to
Establish Policies and Processes for Sharing Terrorism-Related
and Sensitive but Unclassified Information 24 (2006); cf. Pres.
George W. Bush, Memorandum for the Heads of Executive
Departments and Agencies: Designation and Sharing of
Controlled Unclassified Information (CUI) (May 9, 2008)
(establishing a new framework for “controlled unclassified
information”). Similarly, we do not doubt that the names and
identifying information of some United States Government
personnel should be designated as “protected.” Again, neither
does Parhat’s counsel, who readily concedes that the designation
is appropriate for those military personnel who participated in
CSRT hearings and may be for others as well. Pet’r Reply Br.
19. But there are also some “U.S. Government personnel”
 37

whose names appear in the record on review who are so publicly
associated with Guantanamo that protected status would plainly
be unwarranted.

By resting its motion on generic claims applicable to all of
the more than one hundred cases in which the motion was filed,
the government has effectively duplicated its request
“unilaterally to determine whether information is ‘protected.’”
Bismullah, 501 F.3d at 188. Without an explanation tailored to
the specific information at issue, we are left with no way to
determine whether it warrants protection -- other than to accept
the government’s own designation. This we cannot do because,
as we held in Bismullah, “[i]t is the court, not the Government,
that has discretion to seal a judicial record, which the public
ordinarily has the right to inspect and copy.” Id. (internal
citations omitted); see also Bismullah Protective Order § 3.F
(defining “protected information” as “information deemed by the
court . . . to require special precautions . . . in order to protect
the security of United States Government personnel or facilities,
or other significant government interests” (emphasis added)).

Because we are unable to determine, on the pleadings
before us, whether the information that the government has
designated should be deemed “protected,” we deny the
government’s motion without prejudice. “Such information
must,” however, “be maintained under seal unless and until the
court determines the information should not be designated as
‘protected.’” Id. § 7.A (emphasis added). The government is
directed to file, within 30 days, a renewed motion, accompanied
by a marked copy of Parhat’s CSRT record indicating the
information for which it seeks protected status. That filing must
also be accompanied by pleadings specifically explaining why
protected status is required for the information that has been
marked. Opposing counsel may file a response, and the
government may file a reply, pursuant to our usual rules.
 38

VII

Congress has directed this court “to determine the validity
of any final decision of a Combatant Status Review Tribunal
that an alien is properly detained as an enemy combatant.” DTA
§ 1005(e)(2)(A). In so doing, we are to “determine,” inter alia,
whether the CSRT’s decision “was consistent with the standards
and procedures specified by the Secretary of Defense for
Combatant Status Review Tribunals[,] including the requirement
that the conclusion of the Tribunal be supported by a
preponderance of the evidence.” Id. § 1005(e)(2)(C)(i). A
CSRT’s decision regarding enemy combatant status was not
consistent with those standards and procedures unless the
Tribunal had -- and took -- the opportunity to assess the
reliability of the evidence that the government presented to it.
Nor can this court conclude that such a decision was consistent
with those standards and procedures unless we, too, are able to
assess the reliability of the government’s evidence. Because the
evidence that the government submitted to Parhat’s CSRT did
not permit the Tribunal to make the necessary assessment, and
because the record on review does not permit the court to do so,
we cannot find that the government’s designation of Parhat as an
enemy combatant was consistent with the specified standards
and procedures and is supported by a preponderance of the
evidence.

We therefore direct the government to release or to
transfer21 the petitioner, or to expeditiously hold a new CSRT
consistent with this opinion. This disposition is without
prejudice to Parhat’s right to seek release immediately through
a writ of habeas corpus in the district court, pursuant to the
Supreme Court’s decision in Boumediene, slip op. at 65-66. We

21
See supra note 19.
 39

also deny, without prejudice, the government’s motion to
designate certain unclassified material in the CSRT record as
“protected information,” subject to the filing of a renewed
motion accompanied by pleadings sufficient to explain why such
designations are warranted in this case.

So ordered.