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Appeals Court: Suspect's Detention in Cuba Unjust

RENEE MONTAGNE, host:

It was the first court test of the military's designation of a Guantanamo detainee as an enemy combatant, and the Bush administration has lost resoundingly. NPR legal affairs correspondent Nina Totenberg has details.

NINA TOTENBERG: A federal appeals court here in Washington yesterday released its unanimous decision, declaring that the government failed to justify the detention of a Chinese Muslim for the past six and a half years. The strong implication of the court's ruling by a panel of largely conservative judges is that the government may have a very hard time justifying the detention of a substantial portion of the 270 men currently being held at Guantanamo.

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Each have been declared an enemy combatant by a panel of three officers after the military panel conducted a so-called Combatant Status Review Tribunal, or a CSRT. At these hearings, the detainee had no lawyer, was not allowed to call witnesses, was not allowed to see the allegations against him, and the military review panel was not independent but subject to command influence.

Under the Detainee Treatment Act passed by Congress at the behest of the Bush administration, the record of that hearing is the only basis for any appeal to the federal courts. That procedure, the Supreme Court said earlier this month, is so deficient that it's unconstitutional. But the high court decision has yet to play out. So the lower federal courts here in Washington have been working on the basis of the old rules, evaluating the detentions with great deference to the military. And still, in the first test case, the government lost unanimously.

Yesterday, the appeals court panel released its declassified written opinion in the case of Huzaifa Parhat, a Chinese Muslim who's been at Guantanamo for six and a half years. The judges said that Parhat has never been found to be hostile to the United States. The government concedes he was in Afghanistan in 2001 training at a camp with the purpose of fighting the Chinese. And when his camp and surrounding areas were bombed, he fled to Pakistan, where he was turned over to U.S.

The government's case is premised on the claim that the man running that camp was associated with the East Turkistan Islamist Movement, and that group, according to the government, is associated with the Taliban or al-Qaida. After examining the government's classified evidence, however, the judges concluded it was nothing more than bald assertions by the U.S. government based on unverified statements from the Chinese government. In short, the court rejected flat out the government's intelligence, saying it was not backed up even by reliable hearsay. Said the court, Lewis Carroll notwithstanding, just because the government says it thrice does not make it true.

David Remes, who represents some of the other detainees at Guantanamo, says the Parhat case is not unique.

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Mr. DAVID REMES (Attorney for Guantanamo detainees): This was just sort of raw information dumped into the CSRT record, and the CSRTs were asked to take that evidence on a presumption that it was correct and that the government's allegations were truthful. But this court said that was not enough. So the bottom line is the government can't justify its enemy combatant determinations based on the findings of the very tribunals that it set up to make those determinations.

TOTENBERG: Parhat and the vast majority of detainees at Guantanamo are not charged with any crime, but 20 of the detainees have been charged. More are expected. Yesterday, unrelated to Parhat, the Pentagon brought charges against a Saudi of Yemeni descent for allegedly plotting to bomb the USS Cole, and the government asked for that's death penalty.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.