In this opinion by Chief Judge Ginsburg (joined by Judge Henderson; concurring opinion by Judge Rodgers), the D.C. Circuit holds as follows with respect to review of a Combatant Status Review Tribunal (“CSRT”) determination of enemy combatant status pursuant to the Detainee Treatment Act (“DTA”):
Scope of the Record on Review: “[T]he record on review consists of all the information a Tribunal is authorized to obtain and consider . . . defined by the Secretary of the Navy as ‘such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant.” (slip op. at 3). The opinion specifically notes that it the court may review to determine whether CSRT personnel properly complied with regulations calling for the acquisition of such information. (slip op. at 13, fn*).
Discovery of Additional Information: The court denies, without prejudice to renewal, the petitioners’ motion to allow discovery beyond the information cited above. The court makes clear that it will reconsider that question if and when the occasion arises. (slip op. at 14). The court also denies discovery of events relating to other detainees’ CSRTS. (slip op. at 14).
The Protective Order: The panel describes the content of a proposed protective order along the lines described below, but also states that it will hear from the parties further before entering the order.
- Access to Classified Evidence: This is a very important part of the ruling, though it’s precise impact remains to be seen. On one hand, the panel calls for detainees’ attorneys to be presumed to have a need to know the “classified information relating to his client’s case.” (slip op. at 3) This is a development of potentially tremendous significance. On the other hand, the panel also states that the government still may withhold from counsel (though not the court itself) “certain highly sensitive information.” (slip op. at 3).
- Government Screening of Detainee Mail: The government may screen detainee-counsel communications, and redact anything not involving events leading up to the person’s capture; the CSRT process; or DTA review of the CSRT decision.
- Establishing Representation: Attorneys will have two chances to go to GTMO to convince a detainee to seek DTA review.
All of this, of course, will be taken into account in the briefing before the Supreme Court in Boumediene, the schedule for which remains pending. In the meantime, DTA review will proceed at the D.C. Circuit.
The opinion is posted here:
http://pacer.cadc.uscourts.gov/docs/common/opinions/200707/06-1197a.pdf
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