Monthly Archives: June 2008

The Snark IS a Boojum

The DC Circuit has now issued a redacted version of Judge Garland's opinion for the Court in Parhat v. Gates. It's worth a read.

Notably, the Court accepts the government's view of its own powers and of the standard of proof required in a Combatant Status Review Tribunal (CSRT) and nonetheless holds that the government failed to produce meaningful evidence to support its claim that Parhat and other Uighers were in a group “associated” with al Qaida, or the Taliban.

The decision points to the very tentative (and unsourced!) language in the documents proferred to the CSTR

… the principal evidence against Parhat regarding the second and third elements of DOD’s definition of enemy combatant consists of four government intelligence documents. The documents make assertions — often in haec verba — about activities undertaken by ETIM, and about that organization’s relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having “reportedly” occurred, as being “said to” or “reported to” have happened, and as things that “may” be true or are “suspected of” having taken place. But in virtually every instance, the documents do not say who “reported” or “said” or “suspected” those things. Nor do they provide any of the underlying reporting upon which the documents’ bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the Tribunal could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.

Insistence that the Tribunal and court have an opportunity to assess the reliability of the record evidence is not simply a theoretical exercise. Parhat contends that the ultimate source of key assertions in the four intelligence documents is the government of the People’s Republic of China, and he offers substantial support for that contention. Parhat further maintains that Chinese reporting on the subject of the Uighurs cannot be regarded as objective, and offers substantial support for that proposition as well.

The government does not dispute that DOD’s standards and procedures require that the CSRT be able to assess the reliability of the record evidence. See Unclassified Oral Arg. Tr. 39. It argues, however, that the Tribunal was able to do so here — for two reasons.

First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions. To the contrary, as noted in Part III, many of those assertions are made in identical language, suggesting that later documents may merely be citing earlier ones, and hence that all may ultimately derive from a single source. And as we have also noted, Parhat has made a credible argument that — at least for some of the assertions — the common source is the Chinese government, which may be less than objective with respect to the Uighurs. Other assertions in the documents may ultimately rely on interview reports (not provided to the Tribunal) of Uighur detainees, who may have had no first-hand knowledge and whose speculations may have been transformed into certainties in the course of being repeated by report writers. Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.

(footnotes removed)

This was a very mixed panel, including arch-conservative Chief Judge Sentelle. When judges from across the spectrum are quoting Lewis Carrol to the government, there's a sign that the jig is up.

Posted in Guantanamo | 2 Comments

Gary Farber on the Power of Music

Gary Farber has a great piece on the (soft) power of music, If it ain't got that swing, which introduced me to Willis Conover. Who's that?

Willis Conover is, or at least once was, one of the most world famous Americans for forty years, and yet unknown to all but a few Americans…

Posted in Politics: International | 1 Comment

Friday McBush Bashing

Posted in Politics: McCain | 4 Comments

A Provocation

Since I am vacationing at an undisclosed location, here's a provocation to keep you going:

Scholars and Rogues, If he were a candidate in the 2008 presidential election, Richard M. Nixon would be more progressive than either the Republican or Democratic nominees.

Discuss.

For extra credit, consider the implications of this interview with Sen. Feingold.

Posted in Politics: US: 2008 Elections | 3 Comments

Dumbest and Clumsiest TV/Video Ad Ever By an Incumbent Senator?

Is this Norm Coleman (R-MN) ad, Al Franken Green Screen Conspiracy?, the worst produced and most stupid TV/video advertisement ever paid for by an incumbent Senator?

If it isn't the stupidest and worst, then I shudder to think what is. (Note: there may be something stupider out there, but the production values have to be better.)

Until the closing credits I was sure this was an independent effort from someone's laptop.

(For the back story to which this ad may be a lame response, see Minnesota Campaign Report: Coleman campaign green-screening the spouse?.)

Posted in Politics: US: 2008 Elections | 7 Comments

Best Evidence that the Miami Herald is Doomed (and How to Save It)

It was a good paper 15 years ago. And despite some subsequent slippage, there were real signs of life. I thought hiring DeFede was a great move a few years ago; firing him was super-stupid. Other than Fred Grimm and the soon-to-be departed Ana Menendez, who still shine, the local section, which used to be the best part, is a five-minute read. If the kids didn't like the comics so much, I'm not sure I'd keep my subscription.

The Miami Herald has gotten pretty dull.

And the sign of the times that makes me think it's not going to get better isn't the 17% cut in staff detailed at How will staff cuts affect The Miami Herald?, although that's sure to hurt, but rather this gem in the same article:

… a group of 15 distinguished Miami-Dade County leaders quietly have been meeting on their own over the past four months to make recommendations for what they think The Miami Herald should be.

Miami is a diverse, fragmented community with many media options, but because of its wide circulation, The Miami Herald can be the glue that holds us all together, one of the group s members, Florida International University President Mitch Maidique, explained.

Other members include United Way President Harv Mogul; UM trustee and Coral Gables attorney Dean Colson; Marvin O'Quinn, chief executive of Jackson Memorial Hospital; UM President Donna Shalala; Miami-Dade County School Superintendent Rudy Crew; attorney Aaron Podhurst; and Flagler Development Group President Adolfo Henriques.

The Herald didn't pick this committee, but I am pretty sure they'll get a very respectful listen. And the makup of this group exemplifies what's wrong with the Herald. This is not a challenge-the-status-quo kind of a club. But if you want to sell papers, you have to give voice to the afflicted and afflict the powerful.

Want to fix the Herald? Start by putting the guys at Eye on Miami in charge of the Metro section. Or at least give them serious column inches and the power to assign a couple reporters.

President Shalala can be an iconoclast when she wants to be. I wish I thought there were any chance she'd recommend the Herald hire Genius of Despair and Gimleteye. It's hard to see how anything less radical can save the paper.

Posted in Miami, The Media | 3 Comments

An Extraordinary Statement About Torture, Honor, Law, and Country

I've said many times before that the JAGs are heroes of the post-9/11 military. Here's another extraordinary example of this: the closing argument of an Air Force Major, David J. R. Frakt, in Favor of Dismissal of the Case Against Mohammad Jawad (6/19/2008) in a 'combat status review tribunal' [Note 6/24/08: commentator mremer says below that this was a merits hearing, not a CSRT, and based on this aclu blog post, I think he's right] held at Guantánamo. (Transcript via the ACLU.)

There ought be be a medal for this sort of princpled powerful advocacy in service to the nation. Please read it. I've reprinted the full text below to make it easier. (If you care — I'm not sure how relevant it is under the circumstances — you can learn more about the facts of the Mohamed Jawad case from FreeDetainees.org.)

Update: Here's some background on Major and Professor David Frakt.

Continue reading

Posted in Guantanamo, Torture | 5 Comments