The federal government experienced its first smackdown by the federal courts, Lewis Carroll style, regarding its ability to classify certain detainees as "enemy combatants." The appeal was brought by Huzaifa Parhat, a Chinese Uighur (yeah, had to look that one up) who, after fleeing China, had been living in a camp in Afghanistan. After a U.S. airstrike on his camp, which was purportedly run by a person affiliated with al Qaeda and/or the Taliban.
Parhat faced the Combatant Status Review Tribunal (CSRT), which determined that he should be classified as an enemy combatant. The classification was based on the fact that Parhat was "affiliated" with a Uighar independence group (ETIM) that was "associated" with al Qaeda and the Taliban. The tribunal further cited documents stating that the ETIM was engaged in hostilities against the United States or its coalition partners, but no supporting evidence beyond the simple assertion was made a part of the record. Parhat contended, and the tribunal did not contradict, that he was not associated with either terrorist group, had gone to Afghanistan solely to join in resistance against China and considered China the enemy, not the US or its allies.
Fast-forwarding through, mostly irrelevant, procedural issues, the Parhat case found itself in front of the Court of Appeals for the D.C. Circuit. The primary issue before the Court was Parhat's assertion that the government failed to show sufficient evidence that the ETIM was "associated" with the aforementioned terrorist organizations.
The government produced reports, mostly classified, upon which it relied in making the determination that the ETIM was an al Qaeda or Taliban-associated organization. Therefore, the information in those reports was entirely redacted from the published opinion. Lastly, the government produced evidence of statements made by another Uighur detainee (and supported by Parhat's own testimony) that the Afghani government (i.e. the Taliban) had given the camp to the Uighur refugees so they could train other Uighur's associated with the Chinese resistance movement.
The tribunal ultimately found that the evidence simply wasn't there to justify labeling Parhat an enemy combatant. The court was concerned with two assertions made by the government. First, the government's argument that the information contained in the documents was reliable because it appeared in three separate documents. The court's response: "Lewis Carroll notwithstanding, the fact that the government has "said it thrice" does not make an allegation true. The court recognized that many of the reports made the same assertions verbatim, indicating that later reports may have merely been citing earlier ones. Additionally, the court did not find unconvincing Parhat's claim that the source for the information was the Chinese government, certainly not an objective source for information regarding the Uighur resistance movement.
The government's second claim was that the information contained in the reports was reliable because it would not have appeared in intelligence reports if it was untrue. The court recognized the danger in this assertion when it found that "This comes perilously close to suggesting that whatever the government says must be treated as true." A scary thought, indeed!
To be clear, the court did not strike down the use of hearsay evidence in these tribunals. It merely held that the government was required to produce "sufficient additional information" permitting the tribunal and the court to determine the reliability of the information. It is important to note that the court recognized that the government could protect the anonymity of its sources and the contents of classified reports by providing the pertinent information directly to the court, rather than turning it over to counsel for the party challenging the classification. This protection is crucial to the government's ongoing anti-terrorism efforts.
I fully support the government's ability to detain enemy combatants, especially when they, or the organizations they are a part of, pose a direct threat to the United States and its interests, but that ability cannot go unchecked. Heck, lock them up at Gitmo and throw away the key, but at least have sufficient justification for it. I don't fear for our domestic security following this ruling, mostly because I trust the court's very narrow ruling and its justifications for the ruling. We are at war with terrorists who would do anything to destroy our country and the freedoms we enjoy as citizens. Substantiating information should not be difficult to produce when it comes to those individuals. Further, the military will continue to have wide latitude in finding and putting down threats to our nation.
Following the Supreme Court's ruling in Boumediene v. Bush, we will surely see a rush of filings from Guantanamo Bay. Just a surely, the courts will find that the detentions are reasonable and justified. A lot of politicians and hot-headed commentators rushed to judgment after the Boumediene ruling and probably will following Parhat. Just because the Supreme Court has permitted the Gitmo detainees to challenge their detention does not mean they are going to be released. In fact, I wouldn't be surprised if the military quit sending detainees to Gitmo in the future. Holding them abroad where the fighting is going on might allow them to avoid the jurisdiction of the U.S. courts entirely - something future Gitmo detainees would probably not enjoy.
