Through the Looking Glass: Indefinite Detention and the Parhat Case

Marty Lederman

Can the President indefinitely detain someone who has no connection to Al Qaeda and who has not engaged in any belligerent acts against the United States?

Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush Administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version today.

Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush Administration’s detention policy—namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the President in the conflict against al Qaeda.

Within a week after the attacks of September 11th, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

The Administration argues that this Authorization for Use of Military Force (AUMF) authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.

Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al Qaeda or of the Taliban. Indeed, the Pentagon’s Combatant Status Review Tribunal (CSRT) did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).

So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced “weegur”). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to “oppression and torture” by the Chinese Government, including “harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas.” In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone -- not the United States -- as his enemy.

In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and seventeen other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.

In light of all this -– and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks) -- what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?

As today’s opinion demonstrates, the government relies on the following, fairly astounding chain of reasoning:

1. The Taliban aided al Qaeda in committing the terrorist attacks of September 11th, and/or “harbored” al Qaeda.

2. Military force against the Taliban would “prevent future acts of international terrorism against the United States” by al Qaeda.

3. Thus, the AUMF authorizes “necessary and appropriate military force” against the Taliban.

4. A longstanding incident of the use of such force is the authority to indefinitely detain those who fight on behalf of, and under the command of, the entity (the Taliban and al Qaeda) against whom the use military force has been authorized.

[Up to this point, the argument is fairly unobjectionable, and supported by the Hamdi decision.]

5. In the AUMF, the government argues, Congress authorized force against not only the Taliban and al Qaeda, but also any entity that, subsequent to September 2001, has become so closely associated with al Qaeda or the Taliban that it is effectively “part of the same organization,” and thus covered by the AUMF (even if it would not have been so covered when the AUMF was enacted)—or, at the very least, such a subsequently affiliated organization is covered by the AUMF if it is “effectively part of” al Qaeda or the Taliban and the entity has also “engaged in hostilities against the United States and its coalition partners.” (The DOD definition requires both showings.)

6. A Uighur independence group known as the East Turkistan Islamic Movement (ETIM) is “associated” with the Taliban in the sense that it is “effectively part of” the Taliban.

7. Moreover, the ETIM is engaged in hostilities against the United States and its coalition partners.

8. Therefore, the AUMF authorizes the indefinite detention of anyone who is part of the ETIM, whether or not that person has any connections directly to the Taliban or al Qaeda, and whether or not that person has ever engaged in, planned or supported hostilities against the United States or its coalition partners.

9. Indeed, the AUMF authorizes the indefinite detention of anyone who has merely “supported” the ETIM, even if that person has not joined (and is not otherwise "part of") the ETIM, has no connections directly to the Taliban or al Qaeda, and has never engaged in, planned or supported hostilities against the United States or its coalition partners.

10. Although there was no evidence that Parhat joined, became a member of, or in any direct sense “supported” the ETIM, he did seek and receive training on the use of a rifle and pistol at the Uighur camp in Afghanistan, which he intended to use solely for resistance against the Chinese government (not a part of the U.S. coalition).

11. One leader of that Uighur camp was a man named Hassan Maksum.

12. According to the government, Maksum is also a “leader” of ETIM, although there is no evidence that Parhat knew anything about any al Qaeda or Taliban association with Uighur camps. (It’s not clear from the unredacted portions of the opinion whether there was any evidence that Parhat knew Maksum was affiliated with ETIM.)

13. Ergo, because Parhat received training at a camp led by an alleged ETIM leader, Parhat “supported” ETIM.

14. Accordingly, the military can indefinitely detain Parhat (and similarly situated Uighur detainees) at Guantanamo.

* * * *
That’s a fairly astounding chain of “logic”—one that explains why the Pentagon has detained so many persons who have not engaged in hostilities and who have little or no obvious connection to al Qaeda.

In its Parhat decision, the court of appeals does not reach the most fundamental, most important question: whether the Pentagon’s expansive theory of AUMF detention authority -- the 14-step logic described above -- is valid. That is to say, the court does not decide whether Parhat could be detained, even without any connections directly to the Taliban or al Qaeda, and absent evidence that Parhat has ever engaged in, planned or supported hostilities against the United States or its coalition partners, merely upon proof that (i) he had “supported” the ETIM; (ii) the ETIM had become “effectively part of the Taliban” after September 11th; and (iii) the ETIM had engaged in hostilities against the United States and its coalition partners. It assumes for purposes of argument that this would be a valid interpretation of Congress's statute, and holds that even so, the Pentagon has not established a basis for detaining Parhat, because the evidence on which it relied was not credible.

The court, admirably seeking to rely on the narrowest possible ground for decision, does not address whether Parhat’s training at the Uighur camp would suffice to demonstrate that he has “supported” the ETIM (let alone the Taliban) -- again, assuming the validity of the government's theory of detention authority.

Instead, what the court held was “merely” that the military had failed to demonstrate points Nos. 6 and 7, above: Even assuming the validity of DOD's own definition of who is detainable, the court reasoned, the evidence presented to the CSRT and to the court was insufficient to demonstrate, by a preponderance of the evidence, two things that are, by the Pentagon’s own admission, essential minimum prerequisites for detention of the Uighur detainees: (i) that the ETIM is "associated with" the Taliban, in the (required) sense of being "effectively part of the same organization”; and (ii) that the ETIM has engaged in hostilities against the US or its coalition partners.

As to these two failings in the Pentagon’s proof, the court had this to say:

The Tribunal’s findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements’ reliability. . . . The grounds for the charges that ETIM was “associated” with al Qaida and the Taliban, and that it is engaged in hostilities against the United States or its coalition partners, were statements in classified documents that do not state (or, in most instances, even describe) the sources or rationales for those statements. . . .

The principal evidence against Parhat regarding the second and third elements of DOD’s definition of enemy combatant consists of four government intelligence documents. The documents make assertions -- often in haec verba -- about activities undertaken by ETIM, and about that
organization’s relationship to al Qaida and the Taliban. 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 that reporting. Because of those omissions, the [CSRT] could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.

DOJ argued that the documents in question were in fact reliable, and probative of the ETIM’s affiliation and operations, for two reasons. But the court, citing Lewis Carroll, rejected those two arguments, and for good reason:

First, 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. Lewis Carroll notwithstanding, 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.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.

Second, 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. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.

As for the remedy, I'll turn it over to Lyle Denniston's excellent summary over on SCOTUSblog:

Having found that designation flawed on the basis of the evidence the CSRT considered, the Circuit Court then turned to the issue of remedy. It said it would not itself order his immediate release from confinement or his transfer out of Guantanamo to a country other than China. The government, it said, might have other evidence beyond what it submitted to the CSRT, and thus the Pentagon might want to try again before a new CSRT.

Still, it stressed, it would not “countenance the ‘endless “do-overs”' that Parhat fears.” While not deciding whether it has the direct authority to order him released, it said it was satisfied that it at least has the power to decide whether the government has proved that a detainee is an enemy combatant. So, it said, it would not accept a role of merely issuing an endless series of opinions on the quality of evidence put before each new round before a CSRT -- an indication that, at some point, it would order release.

The Court stressed that, if Parhat prefers, he was free to pursue immediately in U.S. District Court a plea for his release, by filing a habeas petition under the Supreme Court’s June 12 decision in Boumediene v. Bush (06-1195). In such a proceeding, it said, he would have more rights than in a review by the Circuit Court of a CSRT decision. And, he could use this new opinion, it said, to challenge the CSRT in the habeas case. “Most important,” it said, “in that proceeding there is no question but that the court will have the power to order him released.”

Posted 6:47 PM by Marty Lederman [link]