Who Defines the "Enemy" in "Enemy Combatant"?

For years, lawyers for Guantánamo detainees have argued that the "evidence" on which their clients were held is remarkably flimsy. On Friday, April 4, 2008, the United States Court of Appeals for the District of Columbia Circuit got its first close look at the proposition, hearing arguments in Parhat v. Gates, the first case whose merits the court has considered under the Detainee Treatment Act. Congress enacted the DTA in 2005 as a purported "substitute" for habeas corpus. Detainee lawyers have denounced it as hopelessly rigged, as it prevents them from introducing evidence or effectively traversing the government's evidence, but until now the courts had never considered a record. The record in Parhat is remarkable, for it takes the idea of military detention through the looking glass -- indeed, Chief Judge David Sentelle quoted from Lewis Carroll's Jabberwocky during the argument.

The government's proposition comes to this: we have no personal knowledge of who the enemy is. In Parhat, the government argues that an organization is the military enemy of the United States not because Congress said so, nor yet because that group engaged in hostilities against our forces, but because someone else -- identity unknown -- once said the group is our enemy, and that statement, whose source the Justice Department could not identify, made its way into "military intelligence."

Parhat is a Uighur held at Guantánamo Bay, who has now entered his seventh year of U.S. captivity. He is held as an "enemy combatant," despite the fact that his circumstances were identical in all respects to five Uighur men who in 2004 were determined to be noncombatants by military panels at Guantanamo. It is undisputed that Parhat never engaged in battle. A task force commander recommended his release in 2003, and the same CSRT panel that found him to be an "enemy combatant" commented that it could find "no source evidence" to support the finding, and then "urged" release. We have argued that his status determination is obviously pretextual, a product of the fact that he cannot be released to China, where he would be tortured as an enemy of the regime, and no other country would take him.

The government's theory is that Parhat is affiliated with the "East Turkestan Islamic Movement," and that ETIM, in turn, is affiliated with al Qaeda in Afghanistan. The second step of this theory is based entirely on unsourced intelligence. It raises an almost bizarre idea -- we are detaining an "enemy combatant" because of an alleged affiliation with a group, and yet, our own government can't cite any authoritative source that the group is our enemy at all. The group's U.S. "enemy" status depends entirely on unsourced allegations that circumstantial evidence strongly suggests were fed to us by Communist China.

In Friday's arguments, the panel, which consisted of Chief Judge Sentelle and circuit judges Garland and Griffith, expressed considerable frustration with the reliability of such intelligence.

The case also raises the thorny issue of remedy. We have argued in Parhat's behalf that, with all other remedies having failed, he is entitled to release into the United States. The government stoutly resists the proposition, and the court appeared to find the question of remedy a difficult one in the present context."