               Whether the Review Described in Section 4 of
               Executive Order 13497 Remains Pending for
                   Purposes of Section 7 of That Order
Although the meaning of the word “Review” in section 7 of Executive Order 13497 is not unambigu-
   ous, 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 at the Guantánamo Bay Naval Base whose case has been referred to, but not finally
   resolved by 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 Individuals
Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities”)
(“Executive Order” or “Order”) directs the Secretary 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 Commissions to seek 120-
day continuances in all pending Commissions cases in which charges had already
been referred. Memorandum for the Convening Authority for Military Commis-
sions 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,
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




                                                     1
                   Opinions of the Office of Legal Counsel in Volume 33


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 sec-
tion 7. Pursuant to section 4(c)(3), “Determination of Prosecution,” the Review
Participants have collectively “evaluated” the cases of a number of Guantanamo
detainees not approved for release or transfer, and have collectively “deter-
mine[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 commissions, 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 Departments of
Defense (“DOD”) and Justice (“DOJ”) have agreed upon and promulgated a
formal protocol for further disposition of the cases. See Determination of Guan-
tanamo 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 National Security Division (“NSD”) of DOJ, and personnel
from DOD, including prosecutors from the Office of Military Commissions. The
Protocol directs the team to recommend, based on factors articulated in the
Protocol, whether, the case should be prosecuted in an Article III court (including
in what venue), or in a “reformed military commission.” If the team concludes that
prosecution “is not feasible in any forum, it may recommend that the case be
returned to the Executive Order 13492 Review for other appropriate disposition.”
After the team has made its recommendation, 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


    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.




                                              2
           Whether Review in Section 4 of Executive Order 13497 Remains Pending


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 Participant 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 halted.” Your inquiry concerns whether the “determina-
tions” thus far made by the Review Participants suffice to complete the Review
described 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 Protocol
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 operating. 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 Guantanamo detainees, or merely to the Review of the particular detainee in

   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).




                                                 3
                 Opinions of the Office of Legal Counsel in Volume 33


question. Section 4(a), entitled “Scope and Timing of Review,” provides that “[a]
Review of the status of each individual currently detained at Guantanamo 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 Guantanamo 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 proceed-
ing 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 detainee’s Review under section 4 is no longer pending, the
section 7 obligation 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 Federal Government
should seek to prosecute” and who are currently being processed under the
Protocol. If such a determination necessarily completed 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 Review 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 deter-
mine 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 individual 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.



                                          4
         Whether Review in Section 4 of Executive Order 13497 Remains Pending


Section 4(b) comes next; it identifies the officials who shall participate in the
Review (“Review Participants”) and that the Attorney General shall coordinate it.
Section 4(c) is titled “Operation of Review”; it sets forth in four numbered
paragraphs the duties of the Review 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 “determination” 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 determina-
tions. 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 appropriate, 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 tum 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 sec-
tion 4,” the steps and actions required to be taken in response to, or based upon,
those determinations 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 determina-
tion has been made that transfer or release is possible or, alternatively, that
prosecution should be sought—regardless of whether additional implementing




                                         5
                  Opinions of the Office of Legal Counsel in Volume 33


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.” Furthermore,
one of the findings in the Order (see 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 conse-
quence, would accord with the Order’s apparent purpose to halt military commis-
sion 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 disfavor 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
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 actions in paragraphs (2) and (3) is not to any “deter-
mination” 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 determination”). 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”




                                           6
         Whether Review in Section 4 of Executive Order 13497 Remains Pending


of the relevant officials are not able to achieve any of the relevant dispositions (i.e.,
transfer, release, or prosecution in one forum or the other).
    We think these textual markers are significant. They support the conclusion that
the “Review described in section 4” is pending as to a detainee unless a “disposi-
tion” 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 individuals the federal government should seek to prose-
cute. But a determination 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 individuals”—thus confirming that the Review remains
pending until such a disposition is achieved.
    To be clear, although the word “disposition,” consistent with the dictionary
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 determination that the federal
government “should seek” to prosecute—for example, 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 “Prosecution” 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 prosecution, 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 prosecu-
tion, 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



                                           7
                      Opinions of the Office of Legal Counsel in Volume 33


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 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) indicates, all of the functions described in that subsection, including
the steps taken to transform determinations into a disposition, constitute the
“Operation 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 “deter-
mination” 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 “necessary and appropriate steps based on such
determinations” that paragraph (3) describes. But, even if that were correct, it
would not mean “the Review described in section 4” ends for purposes of
section 7 once the prosecution determination has been made by the Review


     6
       We do not believe the use of the word “status” in section 4(a)’s reference to a “review 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 determina-
tion” referenced in paragraph (3). Moreover, even if “status” were construed to have the “determina-
tion” meaning implicit in DOD’s interpretation, it still would not necessarily follow that the Review is
no longer pending once such a determination is made because, as paragraph (4) expressly contem-
plates, the Review will still be operative in the event no disposition is achieved.




                                                    8
         Whether Review in Section 4 of Executive Order 13497 Remains Pending


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 government 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. Indeed, 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
authority 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 (emphasis added).
    Furthermore, this interpretation is consistent with the purposes of the Order, as
reflected in its other provisions. The Order makes clear in section 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, “disposition” 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.”
Consistent 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” (emphasis added). 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.
    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 Defense 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 conduct 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 commit-
ted, and to determine which forum best suits any future prosecutions.” Jan. 20
Order (emphasis added).



                                          9
                 Opinions of the Office of Legal Counsel in Volume 33


   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 determinations by the Participants that the federal government
should seek to prosecute 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 consistent with the Order’s (and section 7’s) manifest design.

                                         III.

   Although this is the better reading of the Order, however, we are not prepared
to say that it 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 Presi-
dent’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
Express Corp. v. Holowecki, 552 U.S. 389, 397 (2008) (agency interpretation of its
own regulations should be accepted, unless it is “‘plainly erroneous 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 determination 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 implementa-



                                         10
         Whether Review in Section 4 of Executive Order 13497 Remains Pending


tion 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 alternative
reading, we do believe the Order is better read to deem the “Review” 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 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 implementa-
tion of the determinations until a “disposition” is “achieved.”

                                                DAVID J. BARRON
                                          Acting Assistant Attorney General
                                               Office of Legal Counsel




                                         11
