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Analysis: Skepticism on detention system


The first civilian court review of the military’s four-year-old system seeking to justify detention of terrorism suspects produced a skeptical response to three of the government’s key legal defenses of that system. In a hearing on April 4 that ran considerably beyond the scheduled 40 minutes, the D.C. Circuit Court appeared to be harboring significnat doubts about basic elements of the Justice Department arguments. The transcript of that hearing has just become available; it can be downloaded here. (NOTE: The transcript does not always identify the judges by name, and this version represents only the public session held on April 4. The judges later held a closed-door session to consider information treated by the Pentagon as classified.)

In summary, the judges on the three-member Circuit Court panel reacted negatively to the government’s sweeping interpretation of the so-called 9/11 Resolution (the Authorization for Use of Military Force) that is one foundation of the Pentagon’s terrorism detention scheme. The judges also voiced concern that the government was trying to narrow the Circuit Court’s power to review that scheme. And they suggested that the government might be saying one thing to the Circuit Court and something quite different to the Supreme Court on what remedy a detainee could obtain with a successful challenge to a Pentagon detention ruling

Those were among the signfiicant developments when the panel last week heard Parhat v. Gates (Circuit dockekt 06-1397). As matters have turned out, the case of Huzaifa Parhat became the first to be heard of more than 130 pending detainee appeals in the Circuit Court. Those appeals challenge detention rulings by Combatant Status Review Tribunals, set up by the Pentagon in 2004 after the Supreme Court ruled that some military system for examining captures had to be set up. The first line of civilian court review, in the D.C. Circuit, was set up in 2005 by the Detainee Treatment Act — the DTA — passed by Congress.

While the Supreme Court, in the cases of Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), is currently reviewing whether the DTA system is a valid substitute for the habeas rights Congress took away from detainees, the Circuit Court has been moving along with the initial DTA reviews.

In the Parhat case, the Circuit judges posed hard questions to both counsel — the detainees’ lawyer, P. Sabin Willett of Boston, and the Justice Department lawyer, Gregory G. Katsas — but the probing appeared to be more intense with Katsas at the podium.

A key issue in the Parhat case — and it is typical of many of the DTA cases before the Circuit Court — is whether the individual detainee was involved in any kind of activity that would justify designating him as an “enemy combatant” — the only status that justifies holding him prisoner at Guantanamo Bay or elsewhere.

The government contends that Huzaifa Parhat, a member of a persecuted Chinese Muslim minority, the Uighurs, was trained by an organization named the East Turkistan Islamic Movement, and argues that this group is linked with the Al-Qaeda terrorist network. Parhat’s lawyers insist there is no evidence that the Movement is a terrorist organization or that Parhat ever joined it.

As soon as the April 4 hearing began, the Circuit Court judges moved in to explore with Willett the impact of AUMF (the 9/11 Resolution) on the power to detain someone believed associated with the Turkistan Movement. Although Willett argued that AUMF never authorized the U.S. military to take action against that Movement, his exchanges with the court on the issue seemed inconclusive. Before Willett finished, pending rebuttal, the judges had expressed doubts about their authority to order Parhat released if it should find flaws in the detention ruling against him.

When Katsas took the podium, the judges promptly urged him to argue the legal issues, rather than spend time on the evidence Katsas was summarizing to justify Parhat’s detention. And, on the legal issues, it became clear quickly that the judges were resisting Katsas’ suggestion that AUMF authorized the military to go after suspects who were not a part of Al-Qaeda, but only affiliated with it, and were not somehow related to the 9/11 terrorist attacks themselves.

Chief Circuit Judge David B. Sentelle suggested that the Turkistan Movement could be targeted only if it had some role related to 9/11. He and other members of the panel also suggested that the authority granted by AUMF could not be expanded by the Pentagon’s regulations on the scope of the detention panels’ (the CSRTs’) authority to hold prisoners because of a tie to the Turkistan Movement.

Sentelle also made much of an 1804 Supreme Court decision written by Chief Justice John Marshall, Little v. Barreme, cited only briefly in one of the Parhat briefs — a ruling that limited presidential authority to define who is an enemy. “The Supreme Court held,” Sentelle noted, that “where Congress has authorized a limited war, the president cannot use his inherent authority to go beyond the terms of the authorization.”

Katsas insisted that AUMF was significantly broader than the laws at issue in Little v. Barreme, but Circuit Judge Thomas B. Griffith suggested that it was not broad enough to authorize the use of force against an entity that had some tie to Al-Qaeda, but actually did no more than set up a “military camp on the North Pole.” AUMF, Griffith said, “has to be linked to the 9/11 attacks.”

Sentelle then told Katsas that the government could not use the regulations setting up the CSRTs to claim broader power to go after a suspected terrorist than was allowed by AUMF’s authorization.

Later, in discussing the CSRTs’ use of evidence to justify a suspect’s detention, Judge Sentelle suggested that the Circuit Court would have to be satisfied that the evidence the CSRT considered was “reliable.” That led the judges and Katsas into a discussion of the government’s position on how rigorous the Circuit Court could be in reviewing the detention decisions of the CSRTs. Katsas argued that it should be “deferential,” and the judges should not use even a “preponderance of the evidence” standard.

But Circuit Judge Merrick B. Garland suggested that the Justice Department had told the Supreme Court during argument in the Boumediene/Al Odah cases that the Circuit Court itself should judge the CSRTs’ work by a preponderance standard. “Are you authorized to say [that the Department lawyer before the Supreme Court] misspoke?” Garland asked. Katsas said he was not arguing that.

Later in the argument, Judge Sentelle took the hearing into a discussion of a remedy if the Circuit Court should find a flaw in a CSRT detention ruling. The detainees want release from imprisonment to be one of the available remedies. Katsas resisted that suggestion, saying the only remedy would be a new CSRT proceeding.

But the judges reminded Katsas that, in the Supreme Court argument, the Justice Department had told the Justices that release could be ordered as a remedy for a flawed CSRT proceeding. Judge Sentelle suggested that, if the DTA process for reviewing CSRT decisions was to be a valid substitute for the withdrawn habeas right, it would have to include release from custody as a possible remedy.

The Circuit Court gave no indication when it would rule on Parhat’s challenge.