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Circuit Court: No detention based on “bare assertions”

In a significant rebuff of Pentagon policy on detainees, the D.C. Circuit Court has ruled that individuals cannot be labeled as enemies of the U.S. based on “bare assertions” not supported by “independent sources” that would make the claims reliable.  Explaining a decision that it had reached on June 20, but released Monday only in a heavily edited form to protect secrets, the Circuit Court was sharply critical of the information contained in a handful of intelligence documents used to justify keeping a Chinese national imprisoned at Guantanamo Bay, Cuba.

In deciding — in the first case of its kind — that the detention of Huzaifa Parhat was not supported by that evidence, the Circuit Court declined to rule on broader issues that lurked in the case on the President’s authority to order the detention of foreign nationals during the war-on-terrorism, either under the 9/11 Resolution that Congress passed after the 2001 terrorist attacks, or under the President’s constitutional powers as commander-in-chief.

“Because we conclude that the evidence…is insufficient to categorize Parhat as an enemy combatant under the Department of Defense’s definition, we do not reach the other issues disputed by the parties,” the three-judge panel said.

The decision, in redacted form, can be downloaded here.

While the ruling finds that Parhat is entitled to be released or transferred out of Guantanamo, and does so on the basis of questionable intelligence documents, it is unclear whether the ruling portends similar outcomes for other detainees challenging their imprisonment.  The fate of some 270 prisoners at Guantanamo may depend on the specific evidence, case by case, that the Pentagon assembled to support enemy combatant findings.

At the same time, however, the new decision was a clear demonstration that the civilian courts would analyze closely the claimed bases for enemy designations, and would be skeptical of any evidence that was not backed up with evident support for its reliability.  That may signal trouble in other cases, unless the Pentagon’s investigators went further in those than they did in building their case against Parhat.

Parhat is a Chinese citizen of Uighur heritage. The Uighurs reside mainly in the far-western Chinese province of Zinjiang, which they call East Turkistan.  Parhat claims that he fled China because of oppression and torture there, and went to Afghanistan to fight against China.  He claims that he had never engaged in any hostilities against the U.S., and that his only enemy is China.

A Pentagon panel – a Combatant Status Review Tribunal – designated him as an “enemy combatant” after his capture by villagers in Pakistan in December 2001. The villagers had turned him over to Pakistani officials, who then transferred him to U.S. military forces. He has been at Guantanamo since June 2002.

The Circuit Court’s opinion, though omitting almost all of the specifics of the Pentagon’s evidence against Parhat because it is classified, did reveal that much of its information that suggested he had ties to a terrorist group came from “four U.S government intelligence documents, one from the Department of State and three from components of the Department of Defense.”  The Circuit Court said, however, that Parhat’s lawyers had offered “substantial support” that the ultimate source of key claims in those documents came from China’s government, and that “Chinese reporting on the subject of the Uighurs cannot be regarded as objective.”

The Circuit Court rejected two arguments that government lawyers had made to treat the evidence as reliable: first, that the evidence was asserted in three different documents, and, second, that the State and Defense Departments would not have put the information in intelligence documents without being satisfied that it was reliable.

To this first, the panel, contrasting its views with those of author Lewis Carroll in his wry comment that saying something three times made it true, said it was not persuaded. “Many of those assertions,” it said, “are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source.”

To the second, the panel said the argument “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 that Congress assigned to this court.”

The Circuit Court went on to say that it was not suggesting that the government could never offer hearsay evidence that was reliable, or that the government would always have to submit the basis for deemed its evidence reliable.  It said it would leave it to the government to devise other ways to demonstrate reliability.

But, it added, it was rejecting “the government’s contention that it can prevail by sub mitting documents that read as if they were indictments or civili cojplaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant.”

In the part of the opinion discussing more generally the government’s evidence that Parhat was an enemy, the panel said the discussions of possible terrorist ties “repeatedly describe those activities and relationships as having ‘reportedly’ occurred, as being ‘said to’ or ‘reported to’ have happened, and as things that ‘may’ be true or are ‘suspected of’ having taken place. But in virtually every instance, the documents do not say who ‘reported’ or ‘said’ or ‘suspected’ those things. Nor do they provide any of the underlying reporting upon which the documents; bottom-line assertions are founded, nor any assessment of the reliability of that reporting.”

The opinion went on to stress the importance of the CSRTs having the opportunity to make its own assessments of the reliability of Pentagon evidence, and the importance of the Circuit Court itself to do so as it reviews CSRT designations of suspects as enemies.  In Parhat’s case, it said the decision written by the CSRT made clear it lacked the ability to assess the reliability of most of the evidence. Even so, it found him to be an “enemy combatant.”

Having found that designation flawed on the basis of the evidence the CSRT considered, the Circuit Court then turned to the issue of remedy.  It said it would not itself order his immediate release from confinement or his transfer out of Guantanamo to a country other than China. The government, it said, might have other evidence beyond what it submitted to the CSRT, and thus the Pentagon might want to try again before a new CSRT.

Still, it stressed, it would not “countenance the ‘endless “do-overs” ‘ that Parhat fears.”  While not deciding whether it has the direct authority to order him released, it said it was satisfied that it at least has the power to decide whether the government has proved that a detainee is an enemy combatant.  So, it said, it would not accept a role of merely issuing an endless series of opinions on the quality of evidence put before each new round before a CSRT – an indication that, at some point, it would order release.

The Court stressed that, if Parhat prefers, he was free to pursue immediately in U.S. District Court a plea for his release, by filing a habeas petition under the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195).  In such a proceeding, it said, he would have more rights than in a review by the Circuit Court of a CSRT decision.  And, he could use this new opinion, it said, to challenge the CSRT in the habeas case. “Most important,” it said, “in that proceeding there is no question but that the court will have the power to order him released.”

In a final section of its opinion, the government refused the Pentagon’s request to put under seal, as “protected information,” some unclassified material in Parhat’s case giving names or other identifying information of government personnel involved, or providing ‘sensitive law enforcement information.”  Again, it said, the Pentagon was asking for something without providing, in detail, its rationale for sealing away that kind of information. It ordered the Pentagon to come up with more specifics of the need.

The panel ruling was unanimous.  Circuit Judge Merrick B. Garland wrote it, joined by Chief Judge David B. Sentelle and Circuit Judge Thomas B. Griffith.