The Law and the War
In an important Guantanamo Bay habeas corpus case last week, the D.C. Circuit Court of Appeals delivered a stunning blow to the federal government, ordering it to release, transfer or hold a new hearing for a detainee whose case had been percolating through the courts for years. Huzaifa Parhat, a Chinese Uighur detainee, had been held by the Pentagon as an enemy combatant, and his detention had been reviewed by the Pentagon's administrative tribunals.
But after reviewing the evidence, three judges on the D.C. Circuit (including David Sentelle, one of its most conservative) decided otherwise, sternly rebuking the government for its flimsy case in a just-declassified opinion.
According to today's Post:
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."
Quite right. Repeating assertions, hiding behind the veil of classified information, citing unnamed (and unmentionable) sources and methods, making vague assertions of fact -- none adds up to a solid case. The court was right to lift the shroud of secrecy on this case to show that the case against Parhat was a sham.
There have already been cries from critics (and I expect more on the Wall Street Journal editorial page shortly) that this case illustrates the folly of applying law to war. And that if we hold battlefield detentions to peacetime standards of proof, we will handcuff our troops and prevent them from achieving victory. These criticisms represent a particularly virulent strain of the "lawfare" argument, as well as an institutional argument against the involvement of any judicial body in the war on terrorism.
What these arguments miss is the important role that law plays in war. It confers legitimacy, creates transparency and provides procedural mechanisms for the redress of grievances, among other things. To the extent that policies adopted by the executive branch veer off course, or in this case, lack any factual underpinning, judicial oversight in individual cases can right the wrong. I wouldn't want to see judges riding in tanks, as my colleague Eric Posner suggests. But I think there's a very important role for law and legal institutions to play in this war, and that the D.C. Circuit did it well here.
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