Stay of Military Commission Proceedings While Review of Detentions Is Pending

Stay of Military Commission Proceedings
While Review of Detentions Is Pending
Although the meaning of the word “Review” in section 7 of Executive Order 13492 is not
unambiguous, that section is best construed in light of the Order’s text and purposes in
a manner that treats a review as pending as to a detainee at the Guantánamo Bay Naval
Base when the detainee’s case has been referred to but not finally resolved by the pro-
cess under the formal protocol that the Departments of Defense and Justice have
agreed upon and promulgated for further disposition of the case.
August 28, 2009
MEMORANDUM OPINION FOR THE EXECUTIVE SECRETARY
TASK FORCE ON DETENTION POLICY
Section 7 of Executive Order 13492 (“Review and Disposition of Indi-
viduals Detained at the Guantánamo Bay Naval Base and Closure of
Detention Facilities”) (“Executive Order” or “Order”) directs the Secre-
tary of Defense to
immediately take steps sufficient to ensure that during the pendency
of the Review described in section 4 of this order, no charges are
sworn, or referred to a military commission under the Military
Commissions Act of 2006 and the Rules for Military Commissions,
and that all proceedings of such military commissions to which
charges have been referred but in which no judgment has been ren-
dered, and all proceedings pending in the United States Court of Mil-
itary Commission Review, are halted.
77 Fed. Reg. 4897, 4899 (Jan. 22, 2009).
Consistent with this directive, on January 20, 2009, the Secretary of
Defense ordered the Chief Prosecutor of the Office of Military Commis-
sions to seek 120-day continuances in all pending Commissions cases in
which charges had already been referred. Memorandum for the Convening
Authority for Military Commissions and the Chief Prosecutor, Office of
Military Commissions, from Robert M. Gates, Secretary of Defense, Re:
Military Commissions (Jan. 20, 2009) (“Jan. 20 Order”). The prosecution
moved to continue all such cases as directed, and before the first set of
continuances expired, the prosecution sought further continuances, which
the courts granted in May 2009. In that same Order on January 20, 2009,
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Stay of Military Commission Proceedings While Review of Detentions Is Pending
the Secretary of Defense also ordered the Chief Prosecutor to cease
swearing any further charges to the Convening Authority for Military
Commissions, and ordered the Convening Authority not to refer any
additional cases to military commissions. Id. In compliance with the
Secretary’s orders, no Commissions charges have been sworn or referred
since that date. As of the current date, cases with referred charges pending
against ten detainees are currently continued. 1 And with respect to the six
other detainees against whom the Chief Prosecutor had sworn charges
prior to January 20, 2009, the Convening Authority has not yet referred
them for trial. 2
Section 4 of the Executive Order establishes the Review referenced in
section 7. Pursuant to section 4(c)(3), “Determination of Prosecution,” the
Review Participants have collectively “evaluated” the cases of a number
of Guantánamo detainees not approved for release or transfer, and have
collectively “determine[d]” that “the Federal Government should seek to
prosecute” approximately 35 such detainees, including nine of the ten
detainees against whom charges have been referred to military commis-
sions, 3 and four of the six detainees against whom charges have been
sworn but not yet referred. 4 Section 4(c)(3) also prescribes an evaluation
of whether it is “feasible” to prosecute such persons in an Article III
court; accordingly, the Review Participants have determined that such
Article III prosecution is “feasible” or “potentially feasible” for each of
the roughly 35 detainees described above. The Participants then referred
each of the cases to take what section 4(c)(3) calls any “necessary and
appropriate steps based on [their] determination[].”
In order to take such “necessary and appropriate steps,” the Depart-
ments of Defense (“DOD”) and Justice (“DOJ”) have agreed upon and
1 Those detainees are Khalid Sheikh Mohammed, Walid Muhammad Salih Mubarek
Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, and Mustafa Ahmed Adam al
Hawsawi (the “9/11 defendants,” whose cases have been consolidated for trial), Omar
Ahmed Khadr, Almed Mohammed Ahmed Haza al Darbi, Ibrahim Ahmed Mahmoud al
Qosi, Mohammed Kamin, and Noor Uthman Muhammed.
2 Those detainees are Obaiduullah, Fouad Mahmoud Hasan al-Rabia, Faiz Mohammed
Ahmed al-Kandari, Tarek Mahmoud El Sawah, Sufyian Barhoumi, and Ghassan Abdullah
al Sharbi.
3 The exception is Kamin.
4 The exceptions are al-Rabia and al-Kandari.
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33 Op. O.L.C. 304 (2009)
promulgated a formal protocol for further disposition of the cases. See
Determination of Guantánamo Cases Referred for Prosecution (undated;
promulgated by the Departments of Defense and Justice) (“Protocol”).
Pursuant to that Protocol, the cases in question have been assigned to a
“team” composed of Assistant U.S. Attorneys, attorneys from the Nation-
al Security Division (“NSD”) of DOJ, and personnel from DOD, includ-
ing prosecutors from the Office of Military Commissions. The Protocol
directs the team to recommend, based on factors articulated in the Proto-
col, whether, the case should be prosecuted in an Article III court (includ-
ing in what venue), or in a “reformed military commission.” If the team
concludes that prosecution “is not feasible in any forum, it may recom-
mend that the case be returned to the Executive Order 13492 Review for
other appropriate disposition.” After the team has made its recommenda-
tion, NSD and the participating DOD entities are to “jointly determine
whether the case is feasible for prosecution, and the appropriate forum
(and, if necessary, venue) for that prosecution.” They are then to transmit
that determination to the Attorney General, along with any dissenting
views, and the Attorney General, in consultation with the Secretary of
Defense, will then “make the final decision as to the appropriate forum
and (if necessary) venue for any prosecution.”
All but one (Ghailani) of the approximately 35 detainees referred by the
Review Participants to the Justice Department are still undergoing the
process established by the protocols. 5 We understand that this process
likely will not be completed, and final prosecutorial decisions will not be
made by the Attorney General, until at least some time in October.
With respect to those 35 or so detainees who are still being considered
under the Protocol, you have asked us whether the Secretary of Defense
remains bound by the directive of section 7 that he “take steps sufficient
to ensure that during the pendency of the Review described in section 4 of
this order, no charges are sworn, or referred to a military commission . . . ,
and that all proceedings of such military commissions to which charges
have been referred but in which no judgment has been rendered . . . are
5 Ghailani has been indicted in the Southern District of New York, and on May 29,
2009, the Convening Authority withdrew all charges against him that had been referred
to a military commission. See Memorandum of Susan J. Crawford, Convening Authority
for Military Commissions (May 29, 2009).
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halted.” Your inquiry concerns whether the “determinations” thus far
made by the Review Participants suffice to complete the Review de-
scribed in section 4 for purposes of section 7, such that the Review is no
longer pending—in which case the Secretary would be relieved of his
legal obligation to take steps to halt the proceedings and prevent new
charges from being sworn or referred to commissions.
In considering this issue, we sought the views of the drafters of the Pro-
tocol and received the views of the General Counsel of the Department of
Defense. We also consulted with the Executive Director of the Task Force
that the Attorney General established to make the initial “determinations”
under section 4 regarding the way in which the Review has been operat-
ing. We now conclude that, although the meaning of the word “Review”
referred to in section 7 is not unambiguous, it is best construed in light of
the Order’s text and purposes in a manner that treats it as pending as to a
detainee whose case has been referred to, but not finally resolved by, the
Protocol process. Accordingly, we believe the section 7 obligation is best
construed as remaining in effect during the pendency of the Protocol
process.
I.
We must first consider a threshold matter—namely, whether the phrase
“the pendency of the Review” in section 7 refers to the Review of the
entire population of Guantánamo detainees, or merely to the Review of
the particular detainee in question. Section 4(a), entitled “Scope and
Timing of Review,” provides that “[a] Review of the status of each indi-
vidual currently detained at Guantánamo shall commence” (emphasis
added). Thus, the reference in section 7 to “the Review described in
section 4” can be read to refer only to review of each individual detainee
rather than review of all the Guantánamo detainees. Such a reading,
moreover, would not be inconsistent with the purpose of the Order.
Once the Review of an individual detainee has been completed under
section 4, there is no obvious reason why it would be necessary to halt a
military commission proceeding against him so that reviews of other
detainees may be completed (including those who the Review Participants
may not even refer for possible prosecution). Thus, if an individual de-
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33 Op. O.L.C. 304 (2009)
tainee’s Review under section 4 is no longer pending, the section 7 obli-
gation on the Secretary is best read not to apply to that detainee.
II.
Having addressed this threshold question, we must next tum to the
question of whether, for purposes of section 7, “the Review described in
section 4” is complete and therefore no longer pending with respect to any
or all of the detainees the Review Participants have determined “the Fed-
eral Government should seek to prosecute” and who are currently being
processed under the Protocol. If such a determination necessarily com-
pleted the “Review” as to a detainee, then the Secretary of Defense would
no longer be bound by section 7 to take steps sufficient to “halt” the
military commission proceedings or charges with respect to that detainee.
Conversely, if such a determination does not complete the “Review,” then
the Secretary would remain bound.
In answering this question, we begin with the text of the Executive
Order. We then consider how it has been implemented by the Review
Participants, and the underlying purposes that animate it.
In our view, the text of the Order supports the conclusion that the Re-
view is still pending with respect to the roughly 35 detainees currently
being treated under the Protocol, notwithstanding the fact that the Review
Participants appear to have fulfilled their obligation under section 4(c)(3)
to evaluate their cases and determine whether “the Federal Government
should seek to prosecute” them. When considered as a whole, section 4
describes a review that comes to completion not upon the Participants’
“determination” of whether it is possible to transfer or release an individ-
ual consistent with the national security and foreign policy interests of the
United States (section 4(c)(2)), or whether the federal government should
seek to prosecute the individual (section 4(c)(3)), but instead upon the
“achieve[ment]” of a detainee’s “disposition” (section 4(c)(4)). We base
this conclusion primarily on the text of section 4(c)(4), when read in light
of the overall structure and purpose of the Order.
We begin with section 4(a). As noted above, that subsection provides
that a “review” shall commence immediately “of the status” of each
individual detainee. Section 4(b) comes next; it identifies the officials
who shall participate in the Review (“Review Participants”) and that the
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Stay of Military Commission Proceedings While Review of Detentions Is Pending
Attorney General shall coordinate it. Section 4(c) is titled “Operation of
Review”; it sets forth in four numbered paragraphs the duties of the Re-
view Participants and the actions that must be taken by certain officials,
including Review Participants acting either collectively or individually,
relating to the status of individual detainees. Most importantly, section
4(c)(2)–(4) identifies certain determinations that must be made and certain
actions that must be taken in consequence of those determinations as to
individual detainees; and those paragraphs set forth a sequence by which
such determinations and actions are to occur.
Paragraphs (2) and (3) of section 4(c) require that a certain “determina-
tion” be made with respect to detainees. Then, in each paragraph, there is
a final directive instructing particular officials to take certain actions in
light of those determinations. Paragraph (2) of the subsection provides
that the “Review” shall make a determination “whether it is possible to
transfer or release” a detainee. That paragraph then concludes with a
sentence stating that the Secretaries of Defense and State, “and, as appro-
priate, other Review participants shall work to effect promptly the release
or transfer of all individuals for whom release or transfer is possible.”
Similarly, paragraph (3) of the subsection provides that
the cases of individuals not approved for release or transfer shall be
evaluated to determine whether the Federal Government should seek
to prosecute the detained individuals for any offenses they may have
committed; including whether it is feasible to prosecute such indi-
viduals before a court established pursuant to Article III of the Unit-
ed States Constitution.
The paragraph then concludes with a clause instructing the “Review
participants” to “in turn take the necessary and appropriate steps based on
such determinations.”
At issue here is whether the “Review described in section 4” remains
“pending” during the actions of the Review Participants prescribed by
those final clauses—i.e., working to effect release or transfer, and taking
“necessary and appropriate steps based on” the determination that the
government should seek to prosecute. The Department of Defense is of
the view that, although the “determinations” mandated in paragraphs (2)
and (3) are part of “the Review described in section 4,” the steps and
actions required to be taken in response to, or based upon, those deter-
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33 Op. O.L.C. 304 (2009)
minations fell outside the scope of that Review, and thus that the Review
is not “pending” during those attempts to implement the determinations.
If this were correct, then the “Review described in section 4” would no
longer be pending as to an individua1detainee for purposes of section 7
once the determination has been made that transfer or release is possible
or, alternatively, that prosecution should be sought—regardless of wheth-
er additional implementing steps or actions based on the “determination”
were taken that might result in a more final settlement of the status of the
detainee.
This interpretation, however, would result in a potentially troubling
anomaly, at least with respect to cases referred for possible prosecution.
As paragraph (3) itself reflects, the Executive Order is plainly concerned
not only with whether a detainee should be prosecuted but also with the
forum in which he should be prosecuted—i.e., whether in an Article III
tribunal or in a military commission. Indeed, the paragraph expressly
instructs that the determination regarding prosecution shall include a
determination regarding not only whether prosecution should be sought
but also whether prosecution in an Article III forum is “feasible.” Fur-
thermore, one of the findings in the Order (section 2(f)) provides that “[i]t
is in the interests of the United States to review whether and how any
such individuals can and should be prosecuted” (emphasis added). Yet
under the reading set forth above, military commission proceedings could
resume, or new charges be sworn and referred, merely by virtue of a
determination that “the Federal Government should seek to prosecute” the
individual detainee, but before any decision on the forum in which such
prosecution will transpire. It is not clear how that consequence, would
accord with the Order’s apparent purpose to halt military commission
proceedings and charges until a review has been made with respect to
“whether and how” a detainee currently held at Guantánamo will be
prosecuted.
Whether or not that anomaly, standing alone, would be enough to dis-
favor such an interpretation, the text of section 4(c)(4) of the Order
points strongly towards a contrary interpretation of whether the “Review
described in section 4” is pending during the actions that are taken to
implement the “determinations” in paragraphs (2) and (3). The principal
sentence in paragraph (4) provides that “[w]ith respect to any individuals
currently detained Guantánamo whose disposition is not achieved under
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Stay of Military Commission Proceedings While Review of Detentions Is Pending
paragraphs (2) or (3) of this subsection, the Review shall select lawful
means, consistent with the national security and foreign policy interests
of the United States and the interests of justice, for the disposition of
such individuals” (emphasis added). The reference here to the key ac-
tions in paragraphs (2) and (3) is not to any “determination” being made,
but, rather to a “disposition” being “achieved.” The use of this distinct
phrasing bespeaks a final resolution of how a detainee shall be treated
based on a determination, rather than the predicate determination itself,
which does no more than refer a case to authorities with the legal power
to effect the disposition. See, e.g., Black’s Law Dictionary 505 (8th ed.
2004) (defining “disposition” to include “a final settlement or determina-
tion”). The use of the verb “achieved” is also telling. One “achieves” an
outcome, whereas one makes (but does not “achieve”) a determination.
Moreover, the plain language of the remainder of the relevant sentence in
paragraph (4) also directly supports the conclusion that the Review
remains pending—because it specifically provides that the Review must
select “lawful means, consistent with the national security and foreign
policy interests of the United States and the interests of justice, for the
disposition of such individuals” of the relevant officials are not able to
achieve any of the relevant dispositions (i.e., transfer, release, or prose-
cution in one forum or the other).
We think these textual markers are significant. They support the con-
clusion that the “Review described in section 4” is pending as to a detain-
ee unless a “disposition” has been “achieved” for that detainee under one
of paragraphs (2), (3), or (4). Manifestly, no such disposition has been
achieved under any of those paragraphs with respect to the 35 detainees in
question here. Those detainees have at most been determined to be indi-
viduals the federal government should seek to prosecute. But a determina-
tion that their case should be referred for consideration by prosecutors is
not the achievement of a “disposition . . . under paragraph[] (3).” At least
until there is a final judgment to prosecute—something that occurs at the
earliest upon the completion of the Protocol process when, by its terms,
the Attorney General makes a “final” decision regarding prosecution and
forum—no “disposition” has been “achieved . . . under paragraph (3).”
And if the decision is ultimately made not to prosecute a detainee (or, in
paragraph (2), if transfer of a detainee proves impossible), the Review
must then select other lawful means “for the disposition of such individu-
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als”—thus confirming that the Review remains pending until such a
disposition is achieved.
To be clear, although the word “disposition,” consistent with the dic-
tionary definition, connotes a “final” settlement of a matter, we would
not read paragraph (4) to suggest that the Review is pending so long as it
is not yet known whether the detainee will be convicted in a particular
tribunal or released from law-of-war detention at the end of an armed
conflict. Such a reading would, among other things, effectively preclude
the option of using military commissions altogether, because section 7’s
obligation to ensure a “halt” to commission proceedings would remain
binding on the Secretary while an ultimate “disposition” under section
4(c)(4) remained open. This outcome is something the Order plainly does
not intend. Instead, we read “achieve[ment]” of a "disposition” to mean,
at the very least, a treatment of the detainee by the Executive Branch that
is distinct from the mere referral of the case to prosecutors upon determi-
nation that the federal government “should seek” to prosecute—for exam-
ple, the Attorney General’s decision, at the end of the Protocol, to try the
case in a particular forum, or the actual charging of the individual. This
conclusion comports with the title of paragraph (3), which refers to “Pros-
ecution” and not “Conviction.” It is also consistent, if not compelled by,
the reference in section 4(a) to the need for a review of the “status” of
each individual detainee. The individual’s status with respect to prosecu-
tion, may be understood to be “finally settled” for purposes of the Order
upon a final decision regarding whether and how he will be prosecuted.
On this understanding, “the prosecution” disposition is not achieved at
least until the Protocol process runs its course. Because that has not yet
occurred as to all but one of the detainees the Review Participants have
referred for possible prosecution, however, we need not decide here
precisely whether it is at that point or upon the filing of charges that, in
fact, a “disposition” under paragraph (3) will have been “achieved” for
purposes of paragraph (4). We also do not consider here the precise time
at which there is a “disposition” in a case that the Review Participants
refer directly to the Office of Military Commission, after having deemed
that it was not feasible for Article III prosecution but nevertheless a case
the federal government “should seek to prosecute.”
In sum, the mere determination that the government should seek to
prosecute a detainee, and the referral of the case for consideration by the
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Department of Justice pursuant to the Protocol, does not “achieve” a
“disposition.” It simply triggers a new process under the Protocol by
which a disposition—such as the filing of charges or at least the rendering
of a final determination by the Attorney General that charges should be
filed—might be “achieved.” And until such a disposition, the Review
remains pending. The Review described in section 4 accordingly is best
understood as a process that encompasses the entirety of the functions set
forth in section 4(c) for achieving a disposition of a detainee, and the
Review comes to an end only once the full sequence of determinations
and actions set forth in section 4(c) has run its course. For that to occur,
under the plain terms of paragraph (4), either a disposition must have been
achieved pursuant to either paragraphs (2) or (3)—in which case there is
nothing left for the Review to do—or, failing that, the Review must then
select some other lawful disposition. Only if a disposition has been
achieved pursuant to one of those paragraphs will the Review described in
section 4 have been completed. Thus, as the heading of section 4(c) indi-
cates, all of the functions described in that subsection, including the steps
taken to transform determinations into a disposition, constitute the “Oper-
ation of the Review.” 6
This interpretation of the Order’s text is consistent with the practice of
the Review Participants under the Order. We have been informed that the
Protocol process described above has not been uniformly understood as
part of the “determination” process described in section 4(c)(3). Rather,
we have been informed that at least some Participants apparently have
understood the Protocol process as constituting all or part of the “neces-
sary and appropriate steps based on such determinations” that paragraph
6 We do not believe the use of the word “status” in section 4(a)’s reference to a “re-
view of the status of each individual currently detained at Guantánamo” is to the contrary.
While that word could refer to the manner in which the Review Participants determine the
individual can or should be treated, it is just as naturally read to mean the manner in
which the Executive Branch in fact treats the detainee. For the reasons given above, we
would read the final settlement of the “status” to be the “disposition” referenced in
paragraph (4) and referred to at other points in the Order, rather than the mere deter-
mination” referenced in paragraph (3). Moreover, even if “status” were construed to have
the “determination” meaning implicit in DOD’s interpretation, it still would not necessari-
ly follow that the Review is no longer pending once such a determination is made be-
cause, as paragraph (4) expressly contemplates, the Review will still be operative in the
event no disposition is achieved.
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33 Op. O.L.C. 304 (2009)
(3) describes. But, even if that were correct, it would not mean “the Re-
view described in section 4” ends for purposes of section 7 once the
prosecution determination has been made by the Review Participants.
Rather, as explained above, the Review in section 4 remains pending until
a “a disposition” is “achieved” under paragraphs (2), (3) or (4). Quite
clearly, no disposition—no final settlement or decision of how the gov-
ernment will in fact treat the detainee—is achieved under paragraph (3)
until, at the very least, a decision to prosecute in a particular forum is
made on the basis of the Review Participants’ prosecution referral. In-
deed, the Review Participants, collectively—i.e., the Task Force and
Review Panel that the Attorney General established—have no authority to
effectuate such a final disposition with respect to prosecution, an authori-
ty vested in the Attorney General (with respect to Article III prosecution)
and in particular DOD officials (with respect to military commissions).
And the Protocol itself reflects just this understanding. Its first sentence
reads: “This protocol governs disposition of cases referred for possible
prosecution pursuant to Section 4(c)(3) of Executive Order 13492, which
applies to detainees held at Guantánamo Bay, Cuba.” Protocol at 1 (em-
phasis added).
Furthermore, this interpretation is consistent with the purposes of the
Order, as reflected in its other provisions. The Order makes clear in sec-
tion 2(b) that the “prompt and appropriate disposition of the individuals
currently detained at Guantánamo and closure of the facilities in which
they are detained would further the national security and foreign policy
interest of the United States and the interests of justice.” Plainly, “disposi-
tion” in this usage connotes a final decision as to how the government will
treat the detainees, and not a mere determination that “it is possible to
transfer or release a detainee,” or “the Federal Government should seek to
prosecute the detained individuals,” or that “it is feasible to prosecute
such individuals before a court established pursuant to Article III.” Con-
sistent with this conclusion, the final sentence of section 2(b) reads: “To
the extent practicable, the prompt and appropriate disposition of the
individuals detained at Guantánamo should precede the closure of the
detention facilities at Guantánamo.” The constraint of practicability
makes more sense with respect to the achievement of a final outcome—
such as the actual transfer or filing of charges—than the mere making of a
determination that remains to be implemented.
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More generally, there is a basic logic to the idea, discussed above, that
the military commission proceedings should be halted, and no charges
sworn or referred, during the pendency of a process by which the final
judgment as whether and how a detainee should be prosecuted is being
made. This is consistent with the understanding of the Secretary of De-
fense when, in accord with the obligation that section 7 imposes, he first
ordered a halt to commission proceedings and charges on January 20: He
wrote that “[t]his is to provide the Administration sufficient time to con-
duct a review of detainees currently held at Guantánamo, to evaluate the
cases of detainees not approved for release or transfer to determine
whether prosecution may be warranted for any offenses these detainees
may have committed, and to determine which forum best suits any future
prosecutions.” Jan. 20 Order (emphasis added).
The reading of the text set forth above aligns the Order with precisely
this logical outcome: It treats the section 4 Review to which section 7
refers as a process that is completed upon the achievement of a final
disposition of a detainee —whether (i) through transfer or release pursuant
to the efforts of the Secretaries of Defense and State in working to effect
the Review Participants’ determination that release or transfer is possible;
(ii) through a final decision to prosecute pursuant to the necessary and
appropriate steps taken by the relevant authorities based on determina-
tions by the Participants that the federal government should seek to prose-
cute the detainee; or (iii) if neither a transfer or prosecution disposition is
achieved, through some other lawful disposition selected by the Review
Participants under paragraph (4) and then promptly implemented by the
appropriate authorities.
The alternative interpretation of the Order that DOD offers focuses on
section 4(c)(3) and does not account for the fact that section 7 refers more
generally to “the Review described in section 4,” making no special
reference to any of its subsections. The DOD interpretation does not
account as well as the one offered above for the language of section
4(c)(4). Accordingly, we think the interpretation we offer above is the
stronger and more logical reading of the Order, and is also more con-
sistent with the Order’s (and section 7’s) manifest design.
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33 Op. O.L.C. 304 (2009)
III.
Although this is the better reading of the Order, however, we are not
prepared to say that it is the only possible reading, such that it would be
impermissible for the President to interpret his own executive order in
accord with the alternative interpretation. See Utah Ass’n of Counties v.
Bush, 316 F. Supp. 2d 1172, 1196 (D. Utah 2004) (“courts will generally
give substantial deference to the President’s . . . interpretation and use of
an executive order”), appeal dismissed, 455 F.3d 1094 (10th Cir. 2006)
(for lack of standing); cf. Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512 (1994) (where agency’s interpretation of its own regulation is
reasonable, it is entitled to substantial judicial deference); Federal Ex-
press Corp. v. Holowecki, 552 U.S. 389, 397 (2008) (agency interpreta-
tion of its own regulations should be accepted, unless it is “‘plainly erro-
neous or inconsistent with the regulation’”) (quoting Auer v. Robbins, 519
U.S. 452, 461 (1997)). The phrase “the Review described in section 4” is
not unambiguous. One might read the word “Review” in section 7 to refer
to something less than all of the steps and actions—the “operation of the
Review”—prescribed in section 4(c) and, in particular, to refer only to
those actions that pertain to determinations of how the government can or
should treat the detainees, and the actions taken based on such a determi-
nation would not be part of the “Review” itself. To be sure, even on this
reading, section 4(c)(4) expressly contemplates that there could be further
action by the “Review” in the event no disposition were achieved. But, it
might be argued, in that case the Review is not “pending” during the
attempted implementation of the determinations (e.g., while the Protocol
process is underway); it is instead dormant, and would become pending
once more only if and when no disposition is achieved in a particular
case.
But although we cannot say that the Order clearly precludes this alter-
native reading, we do believe the Order is better read to deem the “Re-
view” pending for purposes of section 7 until a disposition of transfer or
release under paragraph (2) of section 4(c), regarding prosecution in a
particular forum under paragraph (3), or regarding some other lawful
disposition under paragraph (4), is achieved. Such a reading avoids the
seemingly anomalous result described above—a result in tension with
the Order’s apparent design to halt military commission proceedings and
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charges until a decision is made to actually go forward with a military
commission prosecution. It also fits comfortably with the text of the
Order, including the heading of section 4(c), “Operation of Review,”
which presumably describes all of the actions set forth in that subsection,
including the implementation of the determinations until a “disposition” is
“achieved.”
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
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