COURT INVALIDATES DETAINEE’S “ENEMY COMBATANT” STATUS

A federal appeals panel found that the designation of a Chinese
detainee held in U.S. custody as an “enemy combatant” was “not valid”
because the classified evidence offered by the government was not
sufficient to sustain the charge.

In the first legal challenge to enemy combatant status, Huzaifa Parhat,
an ethnic Uighur, admitted to being an enemy of the People’s Republic of
China but denied any connection with al Qaida or the Taleban and
specifically denied that he was an enemy of the United States.

Military prosecutors argued that he qualified as an enemy combatant
because he was “affiliated” with military forces that were “associated”
with al Qaida and the Taleban.

In a straightforward but nevertheless thrilling exercise of judicial
authority, judges said that the classified evidentiary basis for that
argument could not be independently validated and was therefore
inadequate.

“We must be able to assess the reliability of that evidence ourselves,”
the judges wrote.

“The government suggests that several of the assertions in the
intelligence documents are reliable because they are made in at least
three different documents. We are not persuaded,” the court said.

Adding a literary flourish, the judges wrote that “the fact that the
government has ’said it thrice’ does not make an allegation true. See
LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (’I have said it
thrice: What I tell you three times is true.’).”

Likewise, they wrote, “the government insists that the statements made
in the [classified evidentiary] 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.”

In a court of law, the prosecution must prove its case and not simply
assert it, the judges explained.

“We […] 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 ruling stated.

The court also denied a government request to block public disclosure
of certain unclassified information in the trial record, including
material marked “Law Enforcement Sensitive.”  (The new ruling is
apparently the first to cite President Bush’s memorandum on “controlled
unclassified information” that was published on May 9, 2008.)

Significantly, the court rejected the government’s attempt
“unilaterally to determine whether information is ‘protected’.”
Sealing the judicial record, the judges said, is a decision for the
court to make.

“Without an explanation tailored to the specific information at issue,
we are left with no way to determine whether it warrants protection –
other than to accept the government’s own designation. This we cannot
do.”

Instead, the government was directed to file a new motion “accompanied
by pleadings specifically explaining why protected status is required
for the information that has been marked. Opposing counsel may file a
response, and the government may file a reply, pursuant to our usual
rules.”

The classified June 20, 2008 ruling in Huzaifa Parhat v. Robert M.
Gates was redacted and approved for publication on June 30.  A copy is
available here:

[1] http://www.fas.org/sgp/jud/parhat.pdf