A panel of the Appeals Court in the DC Circuit on Monday released the first ever ruling on a
habeas habeas-like review for a Guantanamo prisoner under the Detainee Treatment Act of 2005 (PDF). It's devastating to the Bush administration. The unanimous opinion even mocks Bush & Co.'s argument, comparing it to a nonsense poem by Lewis Carroll.
Nearly all the procedings at Combatant Status Review Tribunals have relied heavily on hearsay allegations whose reliability the Tribunals have admitted they can't assess adequately because of government assertions of secrecy. The Appeals Court found that the Tribunal was wrong to depend on unvetted secret 'evidence' to classify the prisoner, Huzaifa Parhat, as an 'enemy combatant'. It also rejected the administration's preposterous and tortured argument that tried to link Parhat to al Qaeda. From the opinion:
"The documents 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 the reporting. Because of those omissions, the Tribunal could not and this court cannot assess the reliability of the assertions in the documents."
We merely reject the government's contention that it can prevail by submitting documents that read as if they were indictments or civil complaints, and that simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant. To do otherwise would require the courts to rubber-stamp the government's charges...
The opinion also declared, "To affirm the Tribunal's determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion." The Court bristled at the Bush administration's argument that the accusations against Parhat had credibility just because they'd been repeated in at least three secret documents.
"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 that Congress assigned to this Court."
It mocked the administration by referring to Lewis Carroll's poem "The Hunting of the Snark". Here is Carroll's lead buffoon exhorting his followers onward in a farcical search for a non-existant prey:
"Just the place for a Snark!" the Bellman cried,
As he landed his crew with care;
Supporting each man on the top of the tide
By a finger entwined in his hair.
"Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true."
"Lewis Carroll notwithstanding, the fact the government has 'said it thrice' does not make an allegation true," said the ruling (quoting the final sentence above).
The Court ordered the administration either to release Parhat or hold another tribunal in which the reliability of the evidence was assessed rather than simply assumed.
It was the first time a court has reviewed the military's decision-making and considered whether a detainee should be held. The ruling provides guidance to federal district judges, who are about to begin reviewing dozens of such cases now that the Supreme Court says detainees can challenge their detention in federal court...
"The big issue now is, can any CSRT decision survive this kind of scrutiny?" Parhat's lawyer, Susan Baker Manning said.
Bush's system of kangaroo courts could implode.
A lawyer representing other detainees, Marc D. Falkoff, said the evidence against many of the 270 men now at Guantánamo was similar to that in the Parhat case.
“This opinion shows that the government is going to have a hard time defending the military’s decision to detain many of these men,” said Mr. Falkoff, a professor at Northern Illinois University College of Law.
The administration's maltreatment of the Uighur prisoners is notorious. They fled to Afghanistan in 2001 to escape Chinese oppression. Though nobody disputes that they've never taken up arms against the US, Bush agreed to salt the Uighurs away at Gitmo as a favor to China at a time he was seeking Chinese support for the invasion of Iraq. Secret (very likely Chinese) allegations that the Uighurs support al Qaeda served as the basis for imprisoning them. So it's highly fitting that the first, devastating
habeas habeas-like challenge to Bush's CSRTs should come from a Uighur prisoner.
(Update): As kenm points out, the DTA created an ambiguous habeas-substitute review in the US Court of Appeals in DC in lieu of a standard habeas review. That provision was struck down recently by SCOTUS in Boumediene. I've changed the wording from "habeas" to "habeas-like" to reflect that ambiguity.
See also this diary by Deep Harm.