The Hunting of the Snark, Indeed

The Bush Administration’s evidence against a suspected terrorist gets a smackdown in federal court:

With some derision for the Bush administration’s arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.

The court compared that to the absurd declaration of a character in the Lewis Carroll poem “The Hunting of the Snark”: “I have said it thrice: What I tell you three times is true.”

“This comes perilously close to suggesting that whatever the government says must be treated as true,” said the panel of the Court of Appeals for the District of Columbia Circuit.

Of note: the three judges in question “included one of the court’s most conservative members, the chief judge, David B. Sentelle.”

I don’t suspect the administration is going to get a lot of love from the federal courts on these cases. Perhaps some of the other cases will have better evidence, however.

36 thoughts on “The Hunting of the Snark, Indeed

  1. Sentelle reminds me of the good ol’ days when someone announcing they were a conservative didn’t lead me to assume they were probably an asshole, too.

  2. This is a bit like when the Bush administration claimed they had multiple sources, British and German, for evidence of Weapons of Mass Destruction that later turned out to have come from the same person. Who the Germans didn’t trust and the British didn’t talk to.

    The real problem here is that the Bush administration is so distrusted that very dangerous people may be let go. This bothers me. I really wish the Bush administration had not let their fears override reasonable legal limits.

  3. Fears Shmears.

    The only thing the Bush White House had to do with fear was trying to foist it off on the general public, and in many cases they succeeded. For a time, at least.

    I think people are tired of being afraid and finally opening their eyes to what is really going on – and that applies to the judicial system as well. Not that they are motivated by fear, generally speaking, but they are human and probably got caught up in the fervor like many others did – especially those of the right-leaning persuasion. It is good to finally see some clearer heads prevailing and pointing out that no, Mr. Bush, you can’t just do what you want just because you want to.

    I don’t really worry about dangerous people being let go, though. If they are dangerous and we have the evidence, even Bush and Co. should be smart enough to actually produce it and not hide behind “Executive Privilege” or some sort of paranoid secrecy. I get the impression that when people are really “bad”, they have the right documents to keep them where they need them – this sort of thing will probably (notice the qualifier here) only happen when they really have no reason to imprison someone they want to imprison, other than “Because I said so.” That crap never worked on my when I was a kid, and it shouldn’t work on the American Judicial System.

  4. I totally agree that the Bush administration is guilty of fear mongering. I am just remembering the look on Bush’s face when he went to New York City after the attack. He looked scared to me. I really think his behavior is not just a political scam.

    Now Karl Rove on the other hand…

  5. Hey, it worked for Maher Arar, a Canadian citizen who was mistaken for a terrorist, handed over to the Syrians and shipped overseas, tortured, then released, and denied the right to sue the USA because of “National Security”.

    The US Ambasador to the UK, when questioned on it said :

    “I don’t think there is any evidence that there have been any renditions carried out in the country of Syria. There is no evidence of that. And I think we have to take what the secretary Condoleezza Rice says at face value. It is something very important, it is done very carefully and she has said we do not authorise, condone torture in any way, shape or form.”

    Of course, the last statement is provably false, the preceding statement is provably suspicious, and the statement before that on having to trust Rice is laughable.

    Courts don’t like it when the President tries to treat them as a tool of the Executive Branch.

  6. Beetlejuice, Beetlejuice, Beetlejuice, you’re guilty!

    I can’t believe I got to tell that joke. Next up, policy by School House Rock.

    “Three is a magic number,
    Yes it is, it’s a magic number.
    Somewhere in the ancient, mystic trinity
    You get three as a magic number.”

  7. One question: why has it taken so long? The evidence has never been there, but people have been “lost” in Gitmo for years now. This guy is not the first to be found detained on shaky grounds, nor will he be the last–can’t they speed this up a little? Cause, you know, innocent people being detained illegally, and more than likely tortured, might JUST be a little bit…unAmerican. You know what I mean?

  8. It’s taken so long because the Executuve Branch assured us that they were certain that everyone they captured was a threat, that judicial review was unnecessary, and was prohibited in any case. That they would be the only ones allowed to make a decision about people they *claimed* were pulled off of a battlefield, and that no burden of proof was required.

    the Judicial branch had no way to intervene, because no one was taking a case before them, and the Legislative branch was being run out of the pocket of the Exec branch.

    One can hope that in the upcoming elections, we’re going to elect more people with spines, but I’m not optimistic about the issue.

  9. Dave @ 1: good ol’ days when someone announcing they were a conservative didn’t lead me to assume they were probably an asshole, too

    Ha! That gave me a laugh! That’s how I feel about the word “patriot”

    Judges like Sentelle, who place their duty to the Constitution and the law above politics, are Bush’s biggest fear and always have been.

  10. I’m all for letting those folks go who are not a threat to the US or to our soldiers in the field.

    However, I think Ethelred’s concern is a valid one:

    The real problem here is that the Bush administration is so distrusted that very dangerous people may be let go.

    And I’ll tell you why. I helped capture dozens of enemy combatants in my two years in the MiddleEast. I know of at least two who ended up being of enough importance to end up in Guantanamo (as opposed to simply being held in the local facilities, American, Afghan or Iraqi). In no case did I stop the firefight to take pictures of the guy shooting at me so there would be a solid chain of custody from the village to the detaining authorities. Sometimes we didn’t have time to take their picture at all before sending them off. In no case did I accompany the prisoners to the prison or holding area as witness to their acts. I never sat down in my quiet office (hah!) and wrote a report, admissible as evidence, about the actions or the identity of the enemy combatants we had disarmed or shot, ziptied and loaded onto helicopters for transport to the rear. We usually just moved onto the next operation.

    The military is not, after all, a police agency and I don’t think anyone is claiming it should be. Any civilian court in our great country could rip the case for holding those guys to shreds without breaking a sweat. And that would be BAD. I can tell you that we were very careful to only detain the guys who had been shooting at us, or their bosses. But there is no ‘chain of evidence.’

    Take this guy, Huzaifa Parhat. He could be a good guy I suppose. They ought to have asked the soldiers who originally detained him why they did so. They didn’t and they probably won’t. The evidence those soldiers transmitted was probably represented by the ‘secret documents’ the court so cavalierly dismissed.

    I want to reiterate that I’m all for releasing those prisoners who are not threats to the US or our soldiers. The problem is that making that judgment based on the rules of our civilian court system pretty much guarantees that MANY bad guys will be let go.

    Seems to me that a better solution would have been to find some way to fit the detainees into the already extant system of law for ‘uniformed enemy combatants’ even though they are not in uniform. But that’s just me and I am not a lawyer.

  11. “Seems to me that a better solution would have been to find some way to fit the detainees into the already extant system of law for ‘uniformed enemy combatants’ even though they are not in uniform. But that’s just me and I am not a lawyer.”

    Either they’re POWs or they’re not. If they’re POWs then those rules apply. If not then normal criminal justice procedures apply. And, you’re right, the armed forces make very poor policemen. So it makes logical sense to treat anybody captured by them as POWs. If these people had been treated by POWs since day one nobody would be complaining at all. This attempt to create a third way is nothing more and nothing less than a justification to hold those who can’t be held as POWs and can’t be tried as criminals. Usually cause there’s no evidence, they weren’t in a warzone, and they did nothing wrong.

    It’s a power grab. Plain and simple.

  12. Skar – you’re telling me you never had the time to write up a report? I find that difficult to believe. I also suspect that if this guy had been caught by US soldiers, we’d be able to produce an affidavit or something detailing circumstances of his capture.

    My suspicion is that this guy was handed over by somebody looking to collect a bounty.

  13. The problem has NEVER been folks who’ve been captured on the battlefield. Them’s are POWs and there’s a chain of custody and legal doctrine that’s sufficient to satisfy any writ.

    The controversy is over folks captured by other people, under dubious circumstances where WE don’t have the evidence and we are “trusting” the word of the people who captured them (and it turns out the evidence is that their name SOUNDS similar to a terrorist target…)

  14. sng:

    Either they’re POWs or they’re not.

    True. Unfortunately, it’s still not quite as simple as that. Technically a POW is a prisoner captured while fighting under the banner of a state. This definition does not fit Al Quaeda and therefore does not apply to it’s operatives, any of them. That puts all such operatives, no matter the circumstances or documentation of their capture, under the civilian courts, exactly what the Bush administration was trying to avoid. In many cases this will mean a dangerous terrorist will go free because, as I described above, soldiers are not policemen. I suspect you’d have a hard time making a civil case against Bin Laden himself. Something wrong with that I think, but I don’t know how to fix it. The Bush administration tried to sidestep the issue, which obviously isn’t going to be working for them very much longer.

    Chris Gerrib, LT, USN, (retired):

    you’re telling me you never had the time to write up a report?

    Nope, I wrote up lots of reports, days or weeks later. They had nothing to do with establishing the guilt or innocence of the people we detained and sent to the rear. They had to do with what led us there and what happened when we got there. Any lawyer could simply say that his client was not there or was not involved in attacking us. My reports contained nothing to refute that because it was neither written, nor expected, to accomplish that end.

    I also suspect that if this guy had been caught by US soldiers, we’d be able to produce an affidavit or something detailing circumstances of his capture.

    That could be true in some cases. Not usually, in my experience.

    My suspicion is that this guy was handed over by somebody looking to collect a bounty.

    Again, perfectly possible. I freely admit that as hard as we tried to only detain the bad guys, others got swept up. I’m all for cutting those guys loose. The problem I see is that according to the rules in a civil court, even the bad guys cannot be held on the evidence available, not because they’re innocent but because they were not captured at the culmination of an investigation. They were captured during a firefight at the ass end of nowhere.

    gwangung:

    The problem has NEVER been folks who’ve been captured on the battlefield. Them’s are POWs…

    Actually, I don’t think they are.

    …and there’s a chain of custody and legal doctrine that’s sufficient to satisfy any writ.

    Perhaps so, but that has not been my experience. I could certainly be wrong though. It simply has not been so demonstrated to me.

  15. Skar – do you really think that if a US soldier said to a court, “I caught him after a firefight,” that a US judge is going to let the guy free? You seem to have very little faith in the judicial system.

    “Mentioned in a secret document” is not the same as an after-action report. There’s a gap between those two statements big enough to drive a truck through.

    Your post raises more questions then it answers. You grab a guy up after a firefight. He gets sent to the rear. Somebody decides he’s important enough to go to GITMO. The questions are, who is making that decision and on what basis.

  16. Chris:

    …guy free? You seem to have very little faith in the judicial system.

    Actually, I have plenty of faith in the judicial system. A soldier telling a judge, “I caught that guy after a firefight,” is not grounds to hold the man. No more than you going before a judge tomorrow and telling him that I stole your car would be. Where’s the proof? Without proof, the judge can’t legally hold him. Say the judge holds him anyway. That’s just another kind of illegal.

    “Mentioned in a secret document” is not the same as an after-action report. There’s a gap between those two statements big enough to drive a truck through.

    Absolutely, and there’s just as big a hole between both statements and a legally efficacious document. I’m not saying we should hold onto the guy mentioned in the article. I’m saying there are more questions that need to be answered before we classify the alleged terrorists held in Gitmo as vanilla civilians with the legal rights of same.

    Your post raises more questions then it answers…

    Yes, I suppose it does.

    You grab a guy up after a firefight. He gets sent to the rear. Somebody decides he’s important enough to go to GITMO. The questions are, who is making that decision and on what basis.

    Absolutely. There may, in fact, be significant improvement necessary on how we decide who goes to Gitmo and who doesn’t. If there is, simply granting those and all future detainees equal status under the civilian judicial system seems to me to be the wrong way to go about it for all the reasons I’ve listed.

  17. Link to the unclassified opinion (PDF file) – http://www.scotusblog.com/wp/wp-content/uploads/2008/06/parhat-redacted-opin-6-20-08.pdf.

    The meat of the opinion (pg 2): 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..

    Pg 5: Parhat and seventeen other unarmed
    Uighurs fled the camp, eventually crossing into Pakistan. Local villagers took the Uighurs in, gave them food and shelter, and then — in approximately December 2001 — handed them over to Pakistani officials

    Pg 7: the Combat Status Tribunal stated that “this Detainee does present an attractive candidate for release.”

    Pg 13: As noted above, the DOD
    Order and the Navy Memorandum both define an “enemy
    combatant” as:

    an individual who was part of or supporting Taliban or
    al Qaida forces, or associated forces that are engaged
    in hostilities against the United States or its coalition
    partners. This includes any person who has committed
    a belligerent act or has directly supported hostilities

    Pg 29: To be clear, we do not suggest that hearsay evidence is never reliable — only that it must be presented in a form, or with sufficient additional information, that permits the Tribunal and court to assess its reliability.

    Game set and match.

  18. “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.”

    Only two more steps to Kevin Bacon.

  19. Matthew Ernest:

    Only two more steps to Kevin Bacon.

    LOL.

    Chris:

    Game set and match.

    Not sure what you’re doing here. Were you under the impression that we were in some sort of competition?

    Pg3:As discussed in Part V, this disposition is without prejudice to Parhat’s right to seek release immediately through a writ of habeas corpus in the
    district court, pursuant to the Supreme Court’s recent decision in Boumediene v. Bush, No. 06-1195, slip op. at 65-66 (U.S. June 12, 2008).

    So it seems that this was not a result of the Boumediene decision. Detainees already had the benefit of the body and process that produced the quoted judgment on Parhah, and have since 2006. The Boumediene decision simply pushed them further into the civil courts, which have very different definitions and standards of evidence than the body that produced the document you quoted above.

    Is that not the case? Are the civil courts bound by the same definitions, rules, and laws as the Combatant Status Review Tribunal? If so, why was Boumediene necessary? If not, are the “bad guy” detainees not now more likely to be set free?

  20. Skar – I don’t recall saying this case had anything to do with Boumediene. However, if the evidence he’s being held on is anything like this crap, a similar result is likely to ensue. (Boumediene was an Algerian grabbed in Bosnia, also rather far afield from the battlefield.)

    To the point of your question – it’s actually not clear if the civil courts are bound by the same rules as the CSRT. My understanding (not a lawyer) is that habeas hearings are really “probable cause” affairs, with a quite low standard of proof.

    “Game, set and match” refers to the refutation of any claim that this guy was “caught on a battlefield” or even met the DOD standard of “illegal combatant.” For the record, I argued on this blog in favor of the CSRT, feeling it would be a fair hearing. Based on this case at least, it was not fair, and I was wrong.

    Here’s the real issue. Every time it is suggested that we give the GITMO detainees a fair hearing, somebody (in this case you) pops up and said “we can’t release people who were caught on a battlefield.” Except, at least some of them were never near a battlefield.

    Common human decency suggests that we need to give each and every person captured a fair chance to plead their case. Those that are in fact bad guys should be held. It does not appear that we are doing that.

    If we’re going to win this war without killing millions of people, we need to convince those millions that we’re the good guys. Arbitrary detentions aren’t going to do that.

  21. …if the evidence he’s being held on is anything like this crap, a similar result is likely to ensue.

    And well it should. As I’ve said, let the good guys go.

    My understanding (not a lawyer) is that habeas hearings are really “probable cause” affairs, with a quite low standard of proof.

    Let’s hope so. And let’s hope there’s enough admissible evidence to keep the bad guys where they are.

    “Game, set and match” refers to the refutation of any claim that this guy was “caught on a battlefield” or even met the DOD standard of “illegal combatant.”

    Well, in that case, game, set and match indeed.

    Here’s the real issue. Every time … were never near a battlefield.

    And the objection is that arranging for the guys who were never near a battlefield to be cut loose may just let quite a few of the other guys loose too. Applying the same standard of evidence to the detention of the guys in Gitmo (captured on a battlefield or not) that is applied to say, you or me, will do that.

    So, perhaps letting some of the bad actors loose is the price we need to pay to ensure that the good guys aren’t unjustly detained. There’s certainly an argument to be made for that. My hope is that, in pursuit of that goal, we don’t go too far in privileging enemy combatants.

    If we’re going to win this war without killing millions of people, we need to convince those millions that we’re the good guys. Arbitrary detentions aren’t going to do that.

    Absolutely. It has to be remembered, however, that the people we’re trying to convince we’re the good guys are not particularly impressed when bad guys, that we took away, show up in their villages again and start the retribution killings.

  22. Skar, BTDT, and I agree that in granting certain rights, and allowing innocents free, we could let genuine criminals or terrorists back on the streets, the “catch and release” program writ large. The situation we find ourselves regarding these detainess and the nature of the war itself is I believe unprecedented.

  23. Skar,

    Chris has done a pretty good job of pointing out that the standards for Habeus are fairly low. The standards for fair CSRTs are even lower. At least one guy didn’t even meet those standards…and was still determined a combatant, and has been imprisoned for 6+ years. That’s a real and concrete problem.

    I’m glad to see that you’re willing to consider that letting a bad actor loose may be an acceptable price to pay. Certainly it should be avoided. But 100% guaranteed safety is a chimera. We’ll never get it, and we’ll bankrupt ourselves trying to reach it. We may someday release someone who turns around and kills Americans. (We already have released a few who have given nasty interviews, which seems to have given Scalia conniptions, but that’s another issue…)

  24. Josh et al;

    Nope, no renditions IN Syria. TO Syria on the other hand…. Gotta parse the sentences carefully.

    Nope, no torcher either … but that comes down to whose definition of torcher you’re using. The Administration’s definition vs. The Dem’s vs. The UN’s vs. The International Laws of Land Warfare vs. Anyone with an Agenda … and you get one h*ll of a grammitarian war. BTW, check out the ILLW, it’s more then the Geneva Convention and there are parts that make harddened officers quesy.

    On a battlefield … ‘oy. Please note that this is a war on terrorests and their supporters. To the terrorest everywhere is a battlefield, from a transcontenental aircraft, to a downtown street with entertanment facilities, to street market, to a police recruetment station, to a train track, to a subway train, to a mass transit bus, to … everywhere. To a terrorest there is not anywere that Is Not A Battlefield. Churchs, Mosquis, and Temples inclueded. Always has been, always will be. So saying you’re only going to use this for people taken on a battlefield is true. Just to a LOT of people the definition of ‘battlefield’ meant something else….

    Always, always, ALWAYS, check the assumtions.

    ‘What everyone knows’ sticks more feet in peoples mouths then heterosexual men loseing their higher brain fuctions when around sexy beautiful women. Also does it faster.

    Still reading? Good.

    Back at least in the early 1980’s there was a Circuit Court that *handled* National Securety issues, from wiretaps to anything else that needed a judges review but was also classified from ‘secret’ to beyond ‘Q-Clearence’ levels. What happened to that?

  25. Skar – I want to reiterate that I’m all for releasing those prisoners who are not threats to the US or our soldiers. The problem is that making that judgment based on the rules of our civilian court system pretty much guarantees that MANY bad guys will be let go.

    Then you should really be pissed at Bush for authorizing the use of torture. It sort of taints evidence.

  26. “Back at least in the early 1980’s there was a Circuit Court that *handled* National Securety issues, from wiretaps to anything else that needed a judges review but was also classified from ’secret’ to beyond ‘Q-Clearence’ levels. What happened to that?”

    I believe that’s the FISA court, which the Bush administration decided it could ignore.

  27. SFC Ski:

    The situation we find ourselves regarding these detainess and the nature of the war itself is I believe unprecedented.

    I like the way you put that. Unprecedented is a great word for it. Thus the Bush administration’s search, ham-handed as it may be deemed, for a ‘third way’ of dealing with people who are not POWs but also cannot be tried by the civilian courts.

    Josh:
    If it were as clear cut as that, yeah, I’d be pissed, but it’s not.

  28. All that I know is that if I got tossed to the U.S. military by people for a bounty and had been a normal guy just trying to get by or feed my family, if I was held for six years under the conditions at Gitmo, I might very well become a terrorist when I am out.

    I’m not saying that we shouldn’t release people at all. I think what we’ve done is a horrible injustice and we’re actively creating our own enemies with these actions (and those in Iraq). We’ve created *more* terrorists, not less.

  29. “Back at least in the early 1980’s there was a Circuit Court that *handled* National Securety issues, from wiretaps to anything else that needed a judges review but was also classified from ’secret’ to beyond ‘Q-Clearence’ levels. What happened to that?”

    If I recall correctly, it was called FISA, and Bush decided that despite the fact that they would let you ask permission up to several days ex post facto and could include information gleaned from the wiretap in your justification — not to mention that it was a rubber stamp in all but name — the mere notion of him having to ask permission for anything wasn’t acceptable and it had to go.

  30. Skar – What’s not clear cut? That we tortured people? That it taints evidence? Or that Bush authorized it?

  31. Josh Jasper:
    I’m not interested in getting in another shrieking match with you over a subject that is off thread topic. I shouldn’t have replied to your little side-snipe at all and I apologize to our host.

  32. Hey, if you don’t want me responding to your comments, ask. I’m happy to oblige. But I hadn’t intended it as a snipe at you. At Bush, perhaps, but I find that torture and the use of “secret evidence” that even a Judge can’t see are all related in that they taint evidence in any fair trial.

    I’m also willing to not “shriek” whatever you mean by that. But as I was willing to apologize for an actual impolitleness last time, I’ll try again:

    I’m sorry if there was something in my wording you took as a snipe. If you’d care to explain it, I’ll see if it’s something I can make amends for.

    If you’d rather just not talk, let me know.

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