A federal appeals court has ruled that the government must prove the reliability of hearsay evidence it submits in support of the confinement of Guantánamo Bay detainees.
Earlier this month, the U.S. Court of Appeals for the D.C. Circuit found that a review tribunal had improperly labeled detainee Huzaifa Parhat an enemy combatant. The court gave the government three options with Parhat, a Chinese Uighur who has been imprisoned at Guantánamo for six years: release him, transfer him to another country, or conduct another review. It was the first time the court considered the merits of a detainee’s petition to have his combatant status reviewed.
The court withheld the opinion supporting the order because it contained classified information. In a redacted version released today, the court said that the government had failed to offer evidence that permitted “an appropriate assessment” of its reliability.
While the court stopped short of barring hearsay evidence in determining whether a detainee can be classified as an enemy combatant, it cast doubt on the authority of hundreds of intelligence documents and records the government has held up as proof of detainees’ threat.
The ruling is particularly instructive for federal district judges presiding over the 200 or so habeas cases brought by detainees. In a recent meeting with Chief U.S. District Judge Royce Lamberth, Justice Department officials reportedly requested time to shore up the factual returns that were filed in
detainee cases several years ago. The D.C. Circuit’s ruling would seem to give the department impetus to do so.
In Parhat’s case, the government alleged that he was a member of the East Turkistan Islamic Movement associated with al-Qaida and the Taliban. The government acknowledges that he never engaged in hostile activities against the United States.
As proof of his affiliation with ETIM, the government submitted at least three intelligence documents from the State and Defense Departments. The Justice Department said the three documents supported each other, but the court ridiculed that reasoning, with a reference to the nonsense poem “The Hunting of the Snark,” by Lewis Carroll.
“Lewis Carroll notwithstanding, the fact that the government has ‘said it thrice’ does not make an allegation true,” wrote Judge Merrick Garland. Chief Judge David Sentelle and Judge Thomas Griffith joined him on the opinion.