When a federal appeals court bench, including one of the circuit’s most conservative jurists, openly mocks the Bush administration, you know the government’s position is pretty weak. (thanks to K.Z. for the tip)
In the first case to review the government’s secret evidence for holding a detainee at Guantanamo Bay, Cuba, a federal appeals court found that accusations against a Muslim from western China held for more than six years were based on bare and unverifiable claims. The unclassified parts of the decision were released on Monday.
With some derision for the Bush administration’s arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.
The court compared that to the absurd declaration of a character in the Lewis Carroll poem “The Hunting of the Snark”: “I have said it thrice: What I tell you three times is true.”
“This comes perilously close to suggesting that whatever the government says must be treated as true,” said the panel of the Court of Appeals for the District of Columbia Circuit.
With due respect to the court, which made the right call, I don’t think the Bush administration was “suggesting” that everything officials say should be treated as fact, they insist that everything they say must be treated as fact. Fortunately, this appeals court panel recognized the flaws in this approach.
The case dealt with Huzaifa Parhat, a former fruit peddler and member of the ethnic Uighur Muslim minority in western China, who fled to Afghanistan in 2001 to escape Chinese repression. The classified evidence against him “included assertions that events had ‘reportedly’ occurred and that the connections were ‘said to’ exist, without providing information about the source of such information.”
According to the NYT report, the court concluded that the administration has to release Parhat, transfer him to another country, or “conduct a new military hearing at Guantanamo to determine if he had been properly classified as an enemy combatant.”
The next step, however, may be tricky.
Although the decision was a defeat for the Bush administration, it was unclear what it might mean immediately for Mr. Parhat, a former fruit peddler who in recent years sent a message to his wife that she should remarry because his imprisonment at Guantanamo was like already being dead.
American officials have said that they cannot return Mr. Parhat and 16 other Uighur detainees at Guantanamo to China for fear of mistreatment and that some 100 other countries have refused to accept them.
We can’t detain him, no one wants him — except the Chinese, who will make Parhat even worse off than he is now.
And then, of course, there are Parhat’s fellow detainees.
A lawyer representing other detainees, Marc D. Falkoff, said the evidence against many of the 270 men now at Guantanamo 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.
Stay tuned.