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A Guantanamo Sequel

Nine days after the Supreme Court’s landmark ruling in Boumediene v. Bush, a U.S. Appeals Court panel addressed the case of Huzaifa Parhat.

Huzaifa Parhat is an ethnic Uighur from the People’s Republic of China and one of 17 Uighurs who happened to be in the wrong place at the wrong time when, after the September 11th attacks, the U.S. launched attacks against suspected Al-Qaeda bases in Afghanistan. The camp where Parhat was training to take up arms against the Chinese government was bombed. He and the 16 other Uighers fled to Pakistan where they were taken into custody by Pakistani authorities, who then turned them over to the U.S. military. In June 2002, Parhat was transferred to the U.S. detention camp at Guantanamo Bay, Cuba, and has been there ever since.

An article by William Glaberson in today’s New York Times tells Parhat’s story from the perspective of the U.S. Court of Appeals for the District of Columbia, the appellate court granted exclusive jurisdiction under the Detainee Treatment Act (DTA) of 2005, to review final decisions of military “Combatant Status Review Tribunals” (CSRTs). A CSRT concluded in December 2004 that Parhat is an “enemy combatant” and thus subject to indefinite detention at Guantanamo. Parhat has contended all along that he was in Afghanistan at a camp where he and the other Uighers were being trained on how to take up arms not against the U.S. and its coalition allies, but against the government of China. Support for Parhat’s insistence that he never regarded the U.S. as an enemy comes even from a U.S. military criminal investigator who reviewed Parhat’s case in 2003 and recommended his release “under a conditional release agreement.”

The review of his case by the D.C. Appeals Court court is the first such review conducted under the 2005 law. In its methodical critique of the methods by which the CSRT reached its decision, the appeals court lays out just how systematically flawed the CSRT system can be. While the U.S. Supreme Court criticized the constitutional construction of the CSRT system in its June 12th decision in Boumediene v. Bush, the D.C. Appeals Court in the Parhat decision looks at the system with the flesh of the facts that were used both to imprison Parhat, and to keep him locked away in Cuba. To anyone who wonders why world opinion of the U.S. has been so badly tarnished by the prisoner abuses at Guantanamo and the medieval quality of due process experienced by Parhat and others, the D.C. Appeals Court’s 39-page opinion is worth the time to read. Even if you don’t wonder about world opinion, it’s still worth your time.

In short, what the three judge panel found is that the government’s evidence for the “enemy combatant” designation hung on Parhat is rife with holes. The panel was also clearly repelled by the Bush Justice Department’s reasoning in the case, which essentially posits that the more often the government makes unsubstantiated accusations against detainees, the more the courts should simply accept that the charges are true.

Here, the decision is memorable because it literally invokes the humor in Lewis Carroll’s poem “The Hunting of the Snark” to chastise the government’s position.

“(T)he government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents,” the opinion reads. “We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has ’said it thrice’ does not make an allegation true.”

Moreover, “the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role the Congress assigned to this court.”

The appeals court’s decision sends Parhat’s case back to a second review tribunal, effectively giving the government another chance at producing enough evidence to attain an “enemy combatant” designation for Parhat, that can withstand judicial review. Thus, even while Parhat and his attorneys were able to persuade the court that he could not be reasonably detained on the basis of the evidence put before the 2004 Tribunal, the unfamiliar legal terrain (Parhat’s case is the first of its kind in U.S. history) the D.C. Appeals Court found itself in left it both declaring that it did have release authority, but not being quite ready to order Parhat’s release.

“We also note,” the court’s decision reads, “that [further] DTA review is not Parhat’s only, or his best, path to release. Boumediene made it quite clear that, at least for a detainee like Parhat who has been imprisoned for a lengthy period and has already had a CSRT, a habeus corpus proceeding in the district court is also available.”

The Parhat decision is just the latest in a series of major decisions about Guantanamo jurisprudence that have rebuked the Bush Administration. This latest blow comes with added irony because the Supreme Court’s decision in Boumediene concluded that the limited role of the D.C. Appeals Court in reviewing CSRT verdicts like Parhat’s is so constrained that it falls short of protecting detainees’ Constitutional rights to habeus corpus. And here in the very first test of how the Appeals Court would play that too limited role, the judges not only blanched at the government’s arguments, but all but advised the appellant, Parhat, to follow the Supreme Court’s ruling in Boumediene, and pursue his habeus rights with an appeal to a federal district court. Of course, that’s just the avenue the the Bush Administration (with the help of the Congress in 2005 and 2006) was trying to block off.

Posted July 1st