Bismullah v. Gates

Initially, the Bush Presidency asserted that none of the captives apprehended during the "global war on terror" were protected by the Geneva Conventions. The Bush Presidency asserted that the Guantanamo Bay Naval Base was not United States territory, and that it was not subject to United States law. Consequently, they challenged that the captives were entitled to submit writs of habeas corpus.

The Supreme Court of the United States ruled, in Rasul v. Bush, that the Guantanamo base was covered by US law.

The United States Court of Appeals for the District of Columbia Circuit reached a decision in Bismullah v. Gates on July 20, 2007.[2]

The three judge panel ruled that Guantanamo captive's attorneys should be allowed to review all the classified evidence in their client's dossier.[2]

On September 1, 2007, the United States Department of Justice requested a rehearing en banc of Bismullah v. Gates.[3] The Department of Justice's request stated:

"The record as defined by Bismullah is not simply a collection of papers sitting in a box at the Defense Department. It is a massive undertaking just to produce the record in this one case." Producing it by a court-ordered Sept. 13 deadline in Paracha "is not possible without potentially compromising the reliability of the production and without also fundamentally compromising the intelligence agencies' ability to redact sensitive national security material, as permitted by this Court's Bismullah decision."

Senior members of the US intelligence establishment went on record to support the Department of Justice's request for a re-hearing.[4] The five senior official filed documents supporting the Department of Justice request on September 7, 2007—six days before the deadline expired. Two of the five documents were classified secret.

CIA Director Michael V. Hayden wrote:[4]

The breadth of discovery apparently required by the Court's decision will include information about virtually every weapon in the CIA's arsenal to combat the terrorist threat to the United States.

• Linda Greenhouse (February 22, 2008). "Detainees at Guantánamo Fight Further Appeal Delay". The New York Times. Retrieved 2008-02-27.
• Joan Biskupic (February 24, 2008). "Gitmo cases offer legal complexities". USA Today. Retrieved 2008-02-27. The U.S. Supreme Court issued an order Friday setting a schedule for the Bush administration's appeal of a D.C. Circuit decision in the matter. The lower court, in a decision last July, said that when it reviews an enemy designation it should have access to all the government information collected on a detainee, "regardless of whether it was all put before the tribunal." The D.C. Circuit had said it needed to look comprehensively at all of the government information to properly assess whether the correct decision was made at Guantanamo. The government contends that ruling would put too great a burden on it and that it would undermine national security because enemy determinations are based partly on classified information.
• Kristine A Huskey (Fall 2007). "Standards and Procedures for Classifying "Enemy Combatants": Congress, What Have You Done?". Texas International Law Journal. Archived from the original on 2008-04-13. Retrieved 2008-04-29. When I began down this road five years ago, Guantánamo was literally a "legal black hole."1 The Supreme Court changed much of that in June 2004 when it ruled in my case, Al Odah v. United States, joined with Rasul v. Bush,2 that the detainees were entitled to bring habeas corpus petitions in federal court to challenge their detention. But after two years of fighting with the government over the meaning of Rasul, Congress abruptly passed the Military Commissions Act of 2006 ("MCA"),3 which ostensibly strips the Guantánamo detainees of the right to challenge any aspect of their detention, including the right to habeas corpus. Remarkably, we are almost exactly where we were five years ago, except that now, Congress has weighed in and approved of Guantánamo as a virtual law-free zone.