A federal appeals court reviewing evidence at Guantanamo Bay compared a Bush administration legal argument to one made by a hapless, dimwitted character in a 19th century nonsense poem by Lewis Carroll.
The U.S. Court of Appeals for the District of Columbia Circuit cited the 1876 poem, “The Hunting of the Snark,” in ruling that the military improperly labeled a Chinese Muslim as an enemy combatant. The ruling was issued last week but an unclassified version of the opinion was released only Monday.
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 appeals court said military review panels, known as Combatant Status Review Tribunals, were unable to assess much of the evidence against the detainee, Huzaifa Parhat, and at times treated accusations as evidence.
“The big issue now is, can any CSRT decision survive this kind of scrutiny?” Parhat’s lawyer, Susan Baker Manning said.
Parhat is one of a group of Chinese Muslims, known as Uighurs, being held at Guantanamo Bay. Their case has become a diplomatic and legal headache for the U.S., which has tried to find a country willing to accept the Uighurs (pronounced WEE’-gurs) even as it defended its decision to hold them as enemy combatants.
The Justice Department concedes that Parhat never fought against the U.S. and says it has no evidence he was planning to do so. The case hinges on Parhat’s connection to the East Turkestan Islamic Movement, a militant group that demands separation from China. Parhat says he considers China, not the United States, the enemy.
The U.S. says it has classified intelligence that ETIM is affiliated with al-Qaida, though officials have not identified the source of that intelligence. The judges said there’s credible evidence that the source is the Chinese government, “which may be less than objective with respect to the Uighurs.”
The three-member court, which was made up of two Republican judges and one Democrat, was particularly pointed in its criticism of the argument that evidence is reliable because it appears on multiple 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,” the court wrote. “This comes perilously close to suggesting that whatever the government says must be treated as true.”
The judges compared the argument to the logic in Carroll’s nonsense poem, in which a hapless crew hunts for a creature that is never quite defined. The Bellman, the ship’s leader, led his men across the ocean, guided by a map that was just a blank piece of paper. He rallied and reassured his crew simply by repeating himself.
“I have said it thrice: What I tell you three times is true,” the Bellman says in the poem.
“Lewis Carroll notwithstanding, the fact that the government has ’said it thrice’ does not make an allegation true,” the court wrote.
The court said Parhat deserved a new hearing or should be released — though it didn’t say to where he would be released. The U.S. does not want to send him to China for fear he will be tortured.