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.

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2 Responses to The Snark IS a Boojum

  1. DMH says:

    Given the court’s concern about the source and reliability of the “evidence” offered by the government, what is the likely reaction when the evidence supporting the government’s assertion was gained through the use of torture? It seems the court might look askance at such evidence since it is no more reliable than that offered by the Chinese government.

  2. PHB says:

    I don’t think that any of the ‘court’ results favoring the administration have been anything more than partisanship. We can be certain that Thomas and Scalia will suddenly rediscover their principles the minute there is no Republican in the White House and start voting to limit executive power in every way possible

    The Republicans on the lower courts know that the game is up, they want to make sure that they are not left on the wrong side of the argument.

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