Washington Post (July 7, 2008)

Guantanamo Crumbles

A federal court strikes another blow against the flimsy process used to justify detentions of 'enemy combatants.'

Monday, July 7, 2008; A12

THE CASE OF Huzaifa Parhat provides the clearest, most compelling evidence yet that the process used by the Bush administration to justify holding detainees at Guantanamo Bay is deeply and irreversibly flawed and must be discarded.

Mr. Parhat is an ethnic Uighur who fled China in 2001 because of the abuses against Uighurs in that country. He arrived in a camp in Afghanistan known as a refuge for Uighurs who opposed the Chinese government. The camp was destroyed by U.S. airstrikes in late 2001, and Mr. Parhat and fellow Uighurs fled to Pakistan for a short while before being turned over to the United States by Pakistani officials. He was sent to the U.S. Naval Base in Guantanamo Bay, Cuba, in 2002.

According to court records, Mr. Parhat is not a member of al-Qaeda or the Taliban. There is no record of his involvement in hostilities against the United States or its allies. In 2003, a military officer who reviewed Mr. Parhat's detention recommended his release. Even the members of a 2004 Combatant Status Review Tribunal that classified Mr. Parhat as an enemy combatant concluded that he was "an attractive candidate for release." Yet Mr. Parhat languishes in Guantanamo to this day -- six years after his capture.

In an opinion made public June 30, a panel of the U.S. Court of Appeals for the D.C. Circuit rebuked the Bush administration for holding Mr. Parhat on the basis of flimsy, anonymous information; the sources of that information were not revealed to the tribunal or the D.C. court. Without knowing the source of such information, Judge Merrick B. Garland wrote for a unanimous panel, it is impossible to assess its reliability.

The court, he concluded, would not "place its judicial imprimatur on an act of essentially unreviewable executive discretion. . . . To do otherwise would require the courts to rubber-stamp the government's charges." The court gave the government the option of either releasing, transferring or giving Mr. Parhat a new Combatant Status Review Tribunal; it also said that Mr. Parhat could contest his detention by filing a writ of habeas corpus in federal court.

The decision represents the first successful challenge of a detainee classification. What makes it all the more remarkable is that it was written by a Clinton appointee (Judge Garland) and joined by two conservative members of that court -- Chief Judge David B. Sentelle, a Reagan appointee, and Judge Thomas B. Griffith, nominated by the current President Bush.

Some may argue that the panel's decision is proof that the current system is working as Congress and the administration intended, with the federal judiciary as an independent check on executive action. But as Judge Garland pointed out, it is not clear that the court has the authority to force the administration to release Mr. Parhat. Without such power, judicial review can be meaningless.