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Opinion in Parhat v. Gates
Jun-30-08 11:44 pm
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E Barrett Prettyman Courthouse

As a previous post noted, on June 20th, the DC Circuit Court of Appeals overturned the decision of the Combatant Status Review Tribunal in Parhat v. Gates. The redacted opinion was released by the court today and can be found here. Written by Judge Merrick Garland, the opinion tells yet another sad tale of the flaws of the system. From the opinion:
Parhat is an ethnic Uighur, who fled his home in the People’s Republic of China in opposition to the policies of the Chinese government.  It is undisputed that he is not a member of al Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies.  The Tribunal’s determination that Parhat is an enemy combatant is based on its finding that he is “affiliated” with a Uighur independence group, and the further finding that the group was
“associated” with al Qaida and the Taliban.  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. Parhat contends, with support of his own, that the Chinese government is the source of several of the key statements.

Parhat’s principal argument on this appeal is that the record before his Combatant Status Review Tribunal is insufficient to support the conclusion that he is an enemy combatant, even under the Defense Department’s own definition of that term. We agree.  To survive review under the Detainee Treatment Act, a Tribunal’s determination of a detainee’s status must be based on evidence that both the Tribunal and the court can assess for reliability.  Because the evidence the government submitted to Parhat’s Tribunal did not permit the Tribunal to make the necessary assessment, and because the record on review does not permit this court to do so, we cannot find that the government’s designation of Parhat as an enemy combatant is supported by a “preponderance of the evidence” and “was consistent with the standards and procedures” established by the Secretary of Defense, as required by the Act. 

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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» Learn more about the M.A. in International Law and Government at Georgetown University.


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