“ Only if he is one can he, presumably, then be held for trial before a military commission. If we can determine whether the preponderance of the evidence supports a probable cause finding sufficient to hold an arrestee for trial without knowing (much less, reviewing) all the evidence in the prosecutor’s possession, can we not do so in reviewing the evidence supporting the “enemy combatant” designation? [3] And should not all of us at least hear the arguments for and against, especially in the national security context? ”

“ Burnett, 477 F.2d 1187, 1201 (D.C. Cir. 1973) (“The preliminary hearing is not a minitrial of the issue of guilt, . . . ‘A preliminary hearing,’ the Supreme Court has said, ‘is ordinarily a much less searching exploration into the merits of a case than a trial, simply because its function is the more limited one of determining whether probable cause exists to hold the accused for trial.’” (quoting Barber v. Page, 390 U.S. 719, 725 (1968) ) ) . So too is the CSRT’s mission: that is, at this stage, it must decide simply whether the detainee is an enemy combatant. ”

“ But the alternative is not necessarily limited to what Bismullah II describes, namely, “the only solution is [for the Government] to turn over none of [the Government Information] .” Bismullah II, 503 F.3d at 142. If the record on review is more limited as discussed supra, the detainees’ counsel’s access likewise contracts. Again, should we not all consider this alternative? ”