Judges Cite Need for Reliable Evidence To Hold Detainees

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By Del Quentin Wilber and Josh White
Washington Post Staff Writers
Tuesday, July 1, 2008

In reversing a military tribunal's determination that a Chinese detainee was an "enemy combatant," a federal appeals court criticized the government's evidence and compared its legal theories to a nonsensical 19th-century poem.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit wrote in a 39-page opinion released yesterday that tribunals and courts must be able to assess whether evidence is reliable before determining the fate of detainees.

That did not happen in the case of Huzaifa Parhat, a Chinese Uighur determined to be an enemy combatant by a tribunal that relied heavily on questionable evidence in classified documents, the appeals court found.

The ruling, the first successful appeal of a detainee's designation as an enemy combatant, ordered the government to release, transfer or hold a new hearing for Parhat. The opinion was issued on June 20 and was declassified and released yesterday.

The opinion could have broad implications for scores of other detainees classified as enemy combatants by Combatant Status Review Tribunals. The opinion is also likely to guide federal judges weighing evidence in up-coming hearings.

Justice Department spokesman Erik Ablin said in an e-mail yesterday that "we are evaluating our options." Parhat's lawyer, Susan Baker Manning, said the opinion shows that courts will not just accept "the government's say-so."

At issue was whether a military tribunal fairly weighed evidence that the government alleged linked Parhat to a group with purported ties to al-Qaeda and the Taliban.

Parhat, a member of the Muslim Uighur movement that is seeking a separate homeland in western China, left his country in May 2001 to avoid persecution, then lived in a camp in Afghanistan. After a U.S. airstrike, he and other Uighurs fled to Pakistan, where they eventually were handed over to U.S. authorities.

Parhat's tribunal determined that he had not engaged in hostilities against the United States or its allies. But it concluded that he was an enemy combatant because he lived at the Afghan camp, which was allegedly run by the leader of a group tied to al-Qaeda and the Taliban, according to the appellate opinion.

The tribunal reached that conclusion based on evidence in classified documents that "do not state (or, in most instances, even describe) the sources or rationales for those statements," the judges found.

The judges were particularly concerned with government assertions that the evidence was reliable because it was repeated in separate documents and that officials would not have included the information if it were not dependable.

"Lewis Carroll notwithstanding, the fact the government has 'said it thrice' does not make an allegation true," wrote Judge Merrick B. Garland, quoting from Carroll's poem "The Hunting of the Snark."

The panel, which included Chief Judge David B. Sentelle and Judge Thomas B. Griffith, also expressed skepticism about the evidence because the Chinese government may have supplied some of it.

"Parhat has made a credible argument that -- at least for some of the assertions -- the common source is the Chinese government, which may be less than objective with respect to the Uighurs," Garland wrote.

Staff researcher Julie Tate contributed to this report.

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