United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2008 Decided March 6, 2009
No. 05-5117
KHALED A.F. AL ODAH, NEXT FRIEND OF FAWZI KHALID
ADBULLAH FAHAD AL ODAH, ET AL.,
APPELLEES
v.
UNITED STATES OF AMERICA, ET AL.,
APPELLANTS
Consolidated with 05-5120, 05-5121,05-5123, 05-5124,
05-5125, 05-5126, 05-5127
Appeals from the United States District Court
for the District of Columbia
(No. 02cv00828)
August E. Flentje, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Gregory G. Katsas, Assistant Attorney General at the time the
briefs were filed, Jonathan F. Cohn, Deputy Assistant Attorney
General, Douglas N. Letter, Terrorism Litigation Counsel, and
Robert M. Loeb, Attorney.
2
David H. Remes argued the cause and filed the briefs for
appellees.
Before: GARLAND and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
PER CURIAM: These consolidated cases come to us with a
long history. We now review a 2005 order of the district court
compelling disclosure of certain classified information to
counsel for certain detainees held at Guantanamo Bay, Cuba.
That discovery order was issued well before the Supreme Court,
in its June 2008 opinion in Boumediene v. Bush, 128 S. Ct. 2229
(2008), ruled that the writ of habeas corpus is available to these
detainees, and well before the district court issued the case
management order that currently governs their habeas
proceedings.1 After issuing the discovery order, the district
court stayed all proceedings in these cases pending resolution of
the government’s appeal from the court’s denial of its motion to
dismiss the detainees’ habeas petitions. This circuit, in turn,
held the government’s appeal from the discovery order in
abeyance pending the circuit’s and the Supreme Court’s
resolution of other appeals regarding the detainees’ legal status.
After the Supreme Court issued Boumediene, the parties filed
motions to govern, and this appeal from the discovery order was
taken out of abeyance and assigned to the present panel.
1
The discovery order also predates Executive Order 13,492,
which directs the “prompt and thorough review of the factual and legal
bases for the continued detention of all individuals currently held at
Guantanamo.” Review and Disposition of Individuals Detained at the
Guantanamo Bay Naval Base and Closure of Detention Facilities,
Exec. Order No. 13,492, § 2(d), 74 Fed. Reg. 4897, 4898 (Jan. 27,
2009).
3
The parties now largely agree upon the legal framework that
should govern the issuance of discovery orders of this kind, as
do we. In accordance with that framework, we remand the
discovery order to the district court so that it may consider the
findings required before such an order may issue. In so doing,
we note several specific points concerning the manner in which
a remand under that framework should proceed.
I
We begin with a brief overview of the relevant chronology
and then move to a more detailed description of the
developments that led to the discovery order at issue here.
A
The Department of Defense (DOD) ordered the detention at
the U.S. Naval Base at Guantanamo Bay, Cuba of certain
foreign nationals captured abroad after al Qaeda attacked the
World Trade Center and the Pentagon on September 11, 2001.
Boumediene, 128 S. Ct. at 2241. To determine whether
Guantanamo Bay detainees are “enemy combatants,” as defined
by DOD, the Deputy Secretary of Defense established
Combatant Status Review Tribunals (CSRTs). Id. Each CSRT
relied on an administrative record compiled by a military officer
to support the government’s case for detention. See Bismullah
v. Gates, 501 F.3d 178, 181-82 (D.C. Cir. 2007), vacated, 128
S. Ct. 2960 (2008), reinstated, Order, No. 06-1197 (D.C. Cir.
Aug. 22, 2008), petitions dismissed for lack of jurisdiction, 551
F.3d 1068 (D.C. Cir. 2009). Separate CSRTs concluded that the
petitioners here were enemy combatants. To contest their
detentions, they filed petitions for writs of habeas corpus in the
United States District Court for the District of Columbia.
4
Roughly two years after the first detainees arrived at
Guantanamo, the Supreme Court held that the federal habeas
statute, 28 U.S.C. § 2241, applied to their detention. Rasul v.
Bush, 542 U.S. 466, 481 (2004). Most of the Guantanamo
habeas cases were then consolidated before a single district
judge to “coordinate and manage all proceedings . . . and to the
extent necessary, rule on procedural and substantive issues.”
Order at 6, Rasul v. Bush, No. 02-0299 (D.D.C. Aug. 17, 2004).
On January 31, 2005, the district court denied the government’s
motion to dismiss the petitions for failure to state a claim upon
which relief can be granted. In re Guantanamo Detainee Cases,
355 F. Supp. 2d 443, 464 (D.D.C. 2005), vacated, Boumediene
v. Bush, 476 F.3d 981 (D.C. Cir. 2007), rev’d, 128 S. Ct. 2229
(2008). The court also granted petitioners’ counsel access to the
complete (unredacted) classified factual returns filed by the
government in support of detention. Order Granting Nov. 8,
2004 Mot. to Designate “Protected Information” and Granting
Nov. 18, 2004 Mot. for Access to Unredacted Factual Returns
at 2, In re Guantanamo Detainee Cases, No. 02-0299 (D.D.C.
Jan. 31, 2005) [hereinafter Discovery Order]. The government
appealed both orders. The district court then stayed the
proceedings “for ‘all purposes’ pending resolution of all appeals
in this matter.” Order Granting in Part and Denying in Part
Respondents’ Mot. for Certification of Jan. 31, 2005 Orders and
for Stay at 2, In re Guantanamo Detainee Cases, No. 02-0299
(D.D.C. Feb. 3, 2005).
While those appeals were pending, Congress twice amended
28 U.S.C. § 2241 to deny the Guantanamo detainees habeas
review. First, Congress passed the Detainee Treatment Act of
2005 (DTA), Pub. L. No. 109-148, 119 Stat. 2680 (2005), but
the Supreme Court held that the provision of the DTA depriving
courts of jurisdiction over the detainees’ habeas petitions did not
apply to cases pending when the DTA was enacted. Hamdan v.
Rumsfeld, 548 U.S. 557, 575-78 (2006). Next, Congress passed
5
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), but the Supreme Court’s Boumediene decision
declared that the detainees have a constitutional right to habeas
and struck down the jurisdiction-stripping provision of the MCA
as an unconstitutional suspension of the writ. 128 S. Ct. at 2240.
This circuit had held the appeal of the Discovery Order in
abeyance pending the outcome of Boumediene. See Order at
1-2, Al Odah v. United States, No. 05-5117 (D.C. Cir. Mar. 17,
2006); see also Order at 1, Al Odah v. United States, No.
05-5117 (D.C. Cir. Aug. 8, 2007). After Boumediene issued, the
parties filed motions to govern, and the case was set for
supplemental appellate briefing and oral argument. At the same
time, the district court made additional preparations to manage
the detainee habeas caseload and resolved, through executive
session on July 1, 2008, to designate another district judge “to
coordinate and manage proceedings in [nearly] all cases
involving petitioners presently detained at Guantanamo Bay,
Cuba.” See Order at 1-2, In re: Guantanamo Bay Detainee
Litigation, No. 08-442 (D.D.C. July 2, 2008). On November 6,
the day before oral argument in the present appeal, the new
coordinating judge issued a case management order detailing the
procedures for the disclosure of classified information going
forward. See Case Management Order, In re: Guantanamo Bay
Detainee Litigation, No. 08-442 (D.D.C. Nov. 6, 2008),
amended by Order (D.D.C. Dec. 16, 2008). At oral argument,
both sides agreed that the district court’s new case management
order does not affect the finality of this appeal.
And so, in this case we confront a January 31, 2005,
Discovery Order that predates both Boumediene and the district
court’s current case management order, but nonetheless remains
operative with respect to a small group of classified factual
6
returns. We discuss the genesis and content of that order in
more detail below.
B
In August 2004, the district court issued an order that
incorporated the government’s proposed schedule for filing
returns identifying the factual support for each petitioner’s
detention as an enemy combatant. See In re Guantanamo
Detainee Cases, 355 F. Supp. 2d at 451. As factual support, the
government submitted the records from the petitioners’ CSRT
proceedings. Id. The government filed its returns on a rolling
basis as the CSRT proceedings were completed, submitting the
earliest in September and the latest in December 2004. Id. at
451-52. Because each CSRT record contained classified
information, the government filed redacted, unclassified
versions on the public record and submitted the full, classified
versions for the court’s in camera review. Id. at 452. The
government also served copies containing most but not all of the
classified information in the court’s copies on those petitioners’
counsel who had obtained security clearances. Id. During this
period, the district court issued multiple orders regarding the
submission of the factual returns, including a protective order.
Amended Protective Order and Procedures for Counsel Access
to Detainees at the United States Naval Base in Guantanamo
Bay, Cuba, In re Guantanamo Detainee Cases, No. 02-0299
(D.D.C. Nov. 8, 2004) [hereinafter Protective Order].
In November 2004, in response to the government’s notice
indicating that it would not provide cleared counsel with all of
the classified information in the factual returns submitted to the
court, the petitioners’ counsel moved for “immediate access to
the unredacted returns.” Petitioners’ Motion for Access to
Unredacted Factual Returns and to Compel Respondents to
Comply with Order on Protected Information Procedures at 1-2,
7
In re Guantanamo Detainee Cases, No. 02-0299 (D.D.C. Nov.
18, 2004). In reply, the government stated that it had redacted
from counsel’s copies two categories of classified information:
(1) information “pertain[ing] to individuals other than the
detainee at issue,” Government’s Supp. Br. 5, which
information, the government said, the detainee had no “need to
know,” id. at 4; and (2) “especially sensitive source-identifying
information,” id. at 5. To justify the redactions, the government
submitted boilerplate certifications stating that the redacted
information “do[es] not support a determination that the detainee
is not an enemy combatant.” Id. at 5; see Supp. Pub. App. 13.
After reviewing the in camera submissions, the district
court found the redacted information “relevant to the merits of
this litigation” and concluded that petitioners’ counsel with
security clearances were entitled to see it, subject to the terms of
the Protective Order. Before us today is the government’s
appeal from the order granting counsel access to the redacted
information. Discovery Order at 2.
II
As a preliminary matter, we conclude that the government’s
notice of appeal was timely. The district court’s order directing
disclosure of the unredacted classified information was issued
on January 31, 2005, and the government filed its notice of
appeal on March 14, 2005. This was well within the sixty-day
time limit provided under Federal Rule of Appellate Procedure
4(a)(1)(B).
We also conclude that we have jurisdiction to review the
district court’s Discovery Order under the collateral order
exception to the final judgment rule. The collateral order
exception allows appellate review of an interlocutory order if the
order: “‘[1] conclusively determine[s] the disputed question, [2]
8
resolve[s] an important issue completely separate from the
merits of the action, and [3] [is] effectively unreviewable on
appeal from a final judgment.’” La Reunion Aerienne v.
Socialist People’s Libyan Arab Jamahiriya, 533 F.3d 837, 843
(D.C. Cir. 2008) (quoting Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978)). The Discovery Order meets these
requirements.
First, the order conclusively determines the disputed
question: the government’s obligation to disseminate classified
information to the petitioners’ attorneys. Second, the order
resolves an important issue that is separate from the merits of
the case. The classified materials at issue are designated by the
government at the “secret” level. By Executive Order, the
“secret” classification applies to information, “the unauthorized
disclosure of which reasonably could be expected to cause
serious damage to the national security that the original
classification authority is able to identify or describe.” Exec.
Order No. 13,292, § 1.2(a)(2), 68 Fed. Reg. 15,315, 15,315-16
(Mar. 25, 2003). The lawfulness of an order directing the
dissemination of this information over the objection of the
government is an important issue entirely separate from the
merits of this case. Finally, the Discovery Order is effectively
unreviewable on appeal from a final judgment. Once the
information is disclosed, the “cat is out of the bag” and appellate
review is futile. In re Papandreou, 139 F.3d 247, 251 (D.C. Cir.
1998); see United States v. Philip Morris Inc., 314 F.3d 612, 619
(D.C. Cir. 2003).
III
We review the district court’s Discovery Order for abuse of
discretion. Islamic Am. Relief Agency v. Gonzales, 477 F.3d
728, 737 (D.C. Cir. 2007) (“‘The district court has broad
discretion in its handling of discovery, and its decision to allow
9
or deny discovery is reviewable only for abuse of discretion.’”
(quoting Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988));
see Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003). The
parties’ positions have evolved over the course of this litigation,
and the most recent round of briefs shows that there is little
disagreement regarding the appropriate legal framework for
resolving this matter. Both the government and the petitioners
urge us to rely, by analogy, on the procedures applicable to
criminal proceedings and to appellate review under the DTA.2
They disagree, however, as to how we should apply those
procedures here.
A
The district court directed disclosure to petitioners’ counsel
of the redacted classified information on the ground that it was
“relevant to the merits of this litigation.” In the context of
criminal proceedings, however, this court has held that
“classified information is not discoverable on a mere showing of
theoretical relevance in the face of the government’s classified
information privilege.” United States v. Yunis, 867 F.2d 617,
623 (D.C. Cir. 1989). Rather, “the threshold for discovery in
this context further requires that . . . [the] information . . . is at
least ‘helpful to the defense of [the] accused.’” Id. (quoting
Roviaro v. United States, 353 U.S. 53, 60-61 (1957)); see United
States v. Mejia, 448 F.3d 436, 456 (D.C. Cir. 2006); United
2
On January 9, 2009, the court in Bismullah v. Gates held, on
rehearing after the Supreme Court’s decision in Boumediene, that “this
court lacks subject matter jurisdiction over . . . detainees’ petitions for
review of their status determinations by a CSRT” under the DTA.
Bismullah v. Gates, 551 F.3d 1068, 1075 (D.C. Cir. 2009). That
holding does not affect our disposition of this habeas case because
both we and the parties have employed Bismullah’s language and
framework only by analogy.
10
States v. Rezaq, 134 F.3d 1121, 1142 (D.C. Cir. 1998). This
standard applies with equal force to partially classified
documents: “if some portion or aspect of a document is
classified, a defendant is entitled to receive it only if it may be
helpful to his defense.” Rezaq, 134 F.2d at 1142. Hence, before
the district court may compel the disclosure of classified
information, it must determine that the information is both
relevant and material -- in the sense that it is at least helpful to
the petitioner’s habeas case. And because such disclosure is in
the context of a habeas proceeding, the touchstone of which is
the court’s “authority to conduct a meaningful review of both
the cause for detention and the Executive’s power to detain,”
Boumediene, 128 S. Ct. at 2269, the court must further conclude
that access by petitioner’s counsel (pursuant to a court-approved
protective order) is necessary to facilitate such review.
Although both sides agree that materiality and not mere
relevance is the threshold standard, they dispute whether the
district court ordered disclosure based solely on relevance or
whether it in fact made a materiality determination. The court’s
order simply states that the classified information is “relevant.”
Discovery Order at 2. Although we acknowledge that the
district court may well have considered materiality as an implicit
part of the relevance analysis, the Order does not indicate
whether that is the case. Absent such an indication and an
explanation of the court’s reasoning, we cannot at this stage
conclude that the redacted information is in fact material.
At the same time, we reject the government’s suggestion
that its mere “certification” -- that the information redacted from
the version of the return provided to a detainee’s counsel “do[es]
not support a determination that the detainee is not an enemy
combatant” -- is sufficient to establish that the information is not
material. Government’s Supp. Br. 10, 17 n.5. That naked
declaration simply cannot resolve the issue. Cf. Parhat v. Gates,
11
532 F.3d 834, 850 (D.C. Cir. 2008) (rejecting “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[, because] [t]o do
otherwise would require the courts to rubber-stamp the
government’s charges”). As the unredacted material was
submitted to the court, it is the court’s responsibility to make the
materiality determination itself.
Moreover, even if it is true that the redacted information in
the return “does not support a determination that the detainee is
not an enemy combatant” -- i.e., that the information is not
directly exculpatory -- that is not the only ground upon which
information may be material in the habeas context. The court
must still assess whether the information is actually inculpatory,
because the government submitted the full habeas return in
support of its contention that the detainee is an enemy
combatant. Evaluation of that contention requires the court to
assess the reliability of the sources upon which the return is
based. Hence, indications of unreliability are themselves
material. Cf. Boumediene, 128 S. Ct. at 2269 (noting that the
most relevant deficiencies of the CSRTs as compared to habeas
proceedings are “the constraints upon the detainee’s ability to
rebut the factual basis for the Government’s assertion that he is
an enemy combatant”). For example, the court may fear, or
counsel may proffer evidence, that a source is biased or that his
testimony was the product of coercion. Similarly, if a source
asserts that he saw the petitioner at a particular place and time,
evidence that the source was elsewhere at that time would
discredit his claim.
Information that is not exculpatory on its face may also be
material if it contains the names of witnesses who can provide
helpful information. In this regard, the government’s further
12
“certification,” again on its own authority and without
explanation, that the petitioner does not have a “need to know”
“information pertaining to individuals other than the detainee”
cannot end the inquiry. A list of individuals “other than the
detainee” may be a list of witnesses useful to the detainee: for
example, when the list names other detainees the government
alleges trained at a certain al Qaeda training camp with the
detainee,3 but who would testify to the contrary.
At oral argument, counsel for the government stated his
“understanding that in the factual returns” that the government
had been filing in more recent detainee habeas cases, “in most
circumstances other detainee identities are not being withheld.”
Oral Arg. Recording at 49:50. In light of counsel’s statement
that “the government is using a somewhat different standard
now,” id., we asked the government to reconsider whether it
wanted to continue withholding such material in the instant
cases. Soon after oral argument, however, the Justice
Department advised the court that the government continues to
redact material pertaining to individuals other than the detainee
at issue. “The rationale,” the Department stated, is that a “list of
individuals other than the petitioner . . . do[es] not serve as
affirmative evidence that the petitioner is an enemy combatant.”
Dep’t of Justice Rule 28(j) Letter, Nov. 10, 2008.
The government’s rationale in this letter appears to be the
inverse of the rationale it advanced in the declarations that
originally accompanied the factual returns: the initial
3
The government has redacted such names in the returns that are
at issue on this appeal. See Government’s Supp. Br. 5 n.1 (“[W]hen
a petitioner was just one among many individuals identified in an
intelligence report -- such as a list of individuals who trained at certain
al Qaeda training camps -- the government redacted the names of the
other individuals.”).
13
declarations stated that the redacted material does not tend to
show that the detainee is not an enemy combatant (i.e., that it is
not exculpatory), while this most recent letter states that the
redacted material is not affirmative evidence that the detainee is
an enemy combatant (i.e., that it is not inculpatory). But the fact
that information does not serve as “affirmative evidence” against
a detainee does not render it immaterial. Information that is
exculpatory, that undermines the reliability of other purportedly
inculpatory evidence, or that names potential witnesses capable
of providing material evidence may all be material. Cf.
Boumediene, 128 S. Ct. at 2270 (“[The court] also must have the
authority to admit and consider relevant exculpatory evidence
that was not introduced during the earlier proceeding. Federal
habeas petitioners long have had the means to supplement the
record on review . . . . Here that opportunity is constitutionally
required.”).
The government’s letter also belatedly offers to provide the
district court with the government’s own “particularized
assessment of whether the information is material.” Dep’t of
Justice Rule 28(j) Letter, Nov. 10, 2008. Such a proffer,
combined with an explanation of why nondisclosure is
warranted, is necessary for meaningful judicial decisionmaking,
and the district court should not hesitate to require that it be filed
contemporaneously with a government request for redactions.
Cf. Parhat, 532 F.3d at 853 (requiring the government to file a
statement “specifically explaining why protected status is
required for the information that has been marked” for
redaction); id. (“Without an explanation tailored to the specific
information at issue, we are left with no way to determine if it
warrants protection -- other than to accept the government’s own
designation.”). In this case, the district court should require the
government to make the filing upon remand.
14
As the record now stands, without an explanation of the
grounds for finding materiality by the district court and without
support for the claim of immateriality from the government, we
cannot resolve the issue of materiality on our own. A remand is
therefore required.
B
As neither side disputes, the analogy to criminal
proceedings also indicates that, before ordering disclosure of
classified material to counsel, the court must determine that
alternatives to disclosure would not effectively substitute for
unredacted access. In criminal proceedings under the Classified
Information Procedures Act (CIPA), for example, the
government may move for alternatives to disclosing classified
information, such as substituting “a statement admitting relevant
facts that the specific classified information would tend to
prove” or “a summary of the specific classified information.”
18 U.S.C. App. III, § 6(c)(1). The district court must “grant
such a motion . . . if it finds that the statement or summary will
provide the defendant with substantially the same ability to
make his defense as would disclosure of the specific classified
information.” Id.
These or other alternatives should also be available in
habeas if the district court determines that a proposed admission
or summary would suffice to provide the detainee with “a
meaningful opportunity to demonstrate that he is being held
pursuant to the erroneous application or interpretation of
relevant law.” Boumediene, 128 S. Ct. at 2266; see id. (holding
that the “privilege of habeas corpus entitles the prisoner to [such
an] opportunity”). See generally id. at 2276 (“We recognize . . .
that the Government has a legitimate interest in protecting
sources and methods of intelligence gathering; and we expect
that the District Court will use its discretion to accommodate
15
this interest to the greatest extent possible.”); Parhat, 532 F.3d
at 849-50 (discussing the use of the CIPA analogy in dealing
with sensitive classified information in DTA reviews). We note,
moreover, that although a finding of materiality is a prerequisite
to ordering disclosure of classified information, it is not a
prerequisite to ordering disclosure of an unclassified
substitution. If the court determines that the assistance of
petitioner’s counsel would facilitate the making of a materiality
determination, nothing bars it (assuming no other privilege is at
issue) from compelling the government to produce an
unclassified substitution that will enable counsel to assist the
court.
As the record does not indicate whether the district court
considered unclassified alternatives before ordering disclosure
of classified information, this issue must be addressed on
remand as well.
C
In Boumediene, the Supreme Court made clear that,
although “[h]abeas corpus proceedings need not resemble a
criminal trial,” the “writ must be effective. The habeas court
must have sufficient authority to conduct a meaningful review
of both the cause for detention and the Executive’s power to
detain.” 128 S. Ct. at 2269. Contrary to the government’s
suggestion, this court’s opinion in Bismullah did not hold that
the government’s submission of classified materials to the court
for in camera, ex parte review ends that inquiry. Bismullah did
indicate that, in DTA cases, “highly sensitive information, or
information pertaining to a highly sensitive source or to anyone
other than the detainee” should be presented first “to the court
ex parte and in camera.” 501 F.3d at 187. And it further stated
that, once such information is presented to the court, the
“presumption” under the DTA that “counsel for a detainee has
16
a ‘need to know’ all Government Information concerning his
client” “is overcome.” Id.4 But Bismullah did not address how
a district court should proceed once that presumption was
overcome by an ex parte, in camera presentation. As indicated
above, we now conclude that the habeas court should proceed by
determining whether the classified information is material and
counsel’s access to it is necessary to facilitate meaningful
review, and whether no alternatives to access would suffice to
provide the detainee with the meaningful opportunity required
by Boumediene.
On the current record, we are unable to determine whether
the district court found that the redacted classified information
was material to the detainees’ cases and necessary to facilitate
meaningful habeas review. Nor can we determine whether the
court found that alternatives to disclosure were insufficient.
Given the scope of the problems presented to the district court
in the underlying proceedings, and the court’s prescience in
anticipating the Supreme Court’s conclusion in Boumediene
regarding the availability of habeas, we do not make these
observations by way of criticism. Nonetheless, they do require
us to vacate the discovery order and to remand for further
proceedings. Because we do so, we do not address additional
issues that may become relevant if the threshold requirements
for disclosure to counsel are met. As the Court said in
Boumediene, “[w]e make no attempt to anticipate all of the
evidentiary . . . issues that will arise during the course of the
detainees’ habeas corpus proceedings,” because “[t]hese and the
other remaining questions are within the expertise and
competence of the District Court to address in the first instance.”
4
We do not address the applicability of such a presumption in the
cases under consideration here, as this appeal only concerns counsel’s
access to classified information contained in factual returns filed by
the government in support of the petitioners’ detention.
17
128 S. Ct. at 2276.5 Nor do we address “the content of the law
that governs petitioners’ detention,” which is also a “matter yet
to be determined.” Id. at 2277.
We are cognizant, however, of the detainees’ concern that
listing these threshold requirements as if they were iterative
steps that must be accomplished one at a time may inordinately
delay resolution of their habeas petitions, in contravention of
Boumediene’s declaration that “detainees in these cases are
entitled to a prompt habeas corpus hearing.” Id. at 2275.
Accordingly, and contrary to the view of the government, we do
not suggest that the district court must make these findings
seriatim. Nothing precludes the court from concluding, in its
discretion, that simultaneous resolution would be more efficient.
But however the court resolves the disclosure issue, it must state
its individualized determinations on the record in order to enable
informed appellate review.
5
For example, as has also been true in the analogous criminal
cases that this court has decided to date: “[W]e need not decide
whether a defendant’s [or detainee’s] interest in information that is
helpful, but that does not rise to the level that is subject to disclosure
under Brady v. Maryland, can overcome the government’s interest in
protecting properly classified information.” Mejia, 448 F.3d at 457
n.18 (citing United States v. Gaston, 357 F.3d 77, 84 (D.C. Cir.
2004)); cf. Boumediene, 128 S. Ct. at 2276 (noting that the Court has
“recogniz[ed] an evidentiary privilege in a civil damages case where
there is a reasonable danger that compulsion of the evidence will
expose military matters which, in the interest of national security,
should not be divulged” (internal quotation marks omitted)).
18
IV
For the foregoing reasons, the order of the district court is
vacated and the cases are remanded for further proceedings
consistent with this opinion.
So ordered.