“ Irrespective, therefore, of what § 2112 might say in general about the scope of a record on review, the DTA requires that the record on review of a CSRT’s status determination include all the Government Information, regardless whether it was all put before the Tribunal. Judge Randolph lodges two pragmatic objections to this analysis. First, he argues “it is impossible for us to determine whether any particular piece of information was obtained or was not obtained by any particular Recorder in any particular detainee’s case” because “Recorders ... ”

“ As a result, the Recorder’s failure to adhere to the DoD Regulations can influence the outcome of the proceeding to a degree that a prosecutor or an agency staff member cannot; as a practical matter, the Recorder may control the outcome. For this court to ignore that reality would be to proceed as though the Congress envisioned judicial review as a mere charade when it enacted the DTA. Thus, the analogy Judge Henderson draws between our review of status determinations under the DTA and our review of agency decisions, Stmt. ”

“ It is FURTHER ORDERED that the motion to expedite be dismissed as moot. It is FURTHER ORDERED that the motion for leave to file ex parte/in camera top secret-SCI declarations for judges’ review only be granted. ”

“ E-2 §§ B (1) , C (6) , and to share all the Government Information with the detainee’s Personal Representative, E-1 § F (8) ; E-2 § C (4) . In order to review whether the Recorder performed these tasks, the court obviously must see all the Government Information. ”

“ In summary, a CSRT can be structured as it is under the DoD Regulations only because it is not a court martial, not a military commission, and not an agency. [4]
It would be particularly untoward to apply § 2112 (b) outside its apparent field of application – and particularly improbable the Congress so intended – when the result would be to preclude the court from discharging the review function assigned to it in the DTA. That review function is broader than Judge Randolph suggests. The DTA charges the court with reviewing not only “whether ... ”

“ The panel also stressed that, under the DoD Regulations, “‘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’ comes within the definition of Government Information only if it is ‘reasonably available.’” Bismullah II, 503 F.3d at 141 (quoting E-1 § E (3) ) ”