Legal News

Court Chides Gov?t in Detainee Case: What I Tell You Three Times Is True

By Dan Slater

Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true. — the Bellman, in Lewis Carroll’s “The Hunting of the Snark” (1876)

Last Monday, the Court of Appeals for the D.C. Circuit made known a ruling ordering the first civilian judicial review of the government’s evidence for holding Gitmo detainees. The Court, in overturning a decision by the Pentagon’s Combatant Status Review Tribunals, held that Huzaifa Parhat, an ethnic Uighur, be released or given a new military hearing.

Today, the court released a partially-redacted version of the court’s opinion, which draws a comparison between the government’s allegedly flawed legal reasoning and the rantings of a dimwitted character, called the Bellman, from an 1876 Lewis Carroll poem called “The Hunting of the Snark.” Here’s the AP report, and here’s the opinion (see page 28).

The ruling provides guidance to federal district judges, who are about to begin reviewing dozens of such cases now that, following the Supreme Court’s opinion in Boumediene, detainees can challenge their detention in federal court. “The big issue now is, can any CSRT decision survive this kind of scrutiny?” said Parhat’s lawyer, Susan Baker Manning.

Parhat is one a group of Chinese Muslims known as Uighurs — pronounced WEE’-gurs — being held at Gitmo. The government’s case against him reportedly hinges on the group’s connection to the East Turkestan Islamic Movement (ETIM), a militant group that demands separation from China. The U.S. says it has classified intelligence that ETIM is affiliated with al-Qaida, though officials have not identified the source of that intelligence. The D.C. Circuit said there’s credible evidence that the source is the Chinese government, “which may be less than objective with respect to the Uighurs.”

As for the reliability of the evidence, the court writes, “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,” the court wrote. “This comes perilously close to suggesting that whatever the government says must be treated as true.”

The judges compared the argument to the Bellman’s nonsense in “The Hunting of the Snark,” in which a crew hunts for a creature that is never defined. The Bellman, the ship’s leader, led his men across the ocean, guided by a map that was just a blank piece of paper. He rallied and reassured his crew simply by repeating himself. “I have said it thrice: What I tell you three times is true,” the Bellman says.

“Lewis Carroll notwithstanding,” the court wrote, “the fact that the government has ’said it thrice’ does not make an allegation true.”

Full post as published by Law Blog - WSJ.com on June 30, 2008 (boomark / email).