I'm just saying... When the court quotes Lewis Carroll

Court Rules on Guidelines for Trying Terrorism Suspects in Guantanamo
By Del Quentin Wilber and Josh White
Washington Post Staff Writers
Monday, June 30, 2008; 2:43 PM

A federal appeals court has ruled that the government must present reliable and verifiable evidence to hearing panels that determine whether terrorism suspects should be held indefinitely as "enemy combatants" at the U.S. military prison in Guantanamo Bay, Cuba.

In the first decision to examine the detention of a detainee there, a three judge-panel of the U.S. Court of Appeals for the D.C. Circuit determined that a Chinese captive is not an enemy combatant based on what the judges said was unreliable evidence submitted at his military tribunal.

The court was particularly concerned by the government's argument that its evidence was reliable because it was repeated several times in different classified documents. It also criticized the government for arguing that it would not have included the information in those documents if it wasn't reliable.

"This comes perilously close to suggesting that whatever the government says must be treated as true," the court found.

The opinion could affect the determinations made about other detainees based on similarly obtained evidence. The opinion also is expected to provide federal judges guidance in how to weigh evidence presented by the government in upcoming hearings.
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The opinion, which was declassified today, follows the court's ruling on June 20 that the government must release, transfer or hold another hearing for the detainee, Huzaifa Parhat, a Chinese Uighur. He and 16 other Uighurs held at Guantanamo, members of a movement seeking a separate homeland in western China, have long maintained that they have no conflict with the United States.

At one point in the 39-page opinion, the court quoted from a Lewis Carroll poem to criticize the government's argument that its evidence was reliable because it was mentioned in three different classified documents.

"Lewis Carroll notwithstanding, the fact the government has 'said it thrice' does not make an allegation true," wrote Judge Merrick B. Garland, who was joined in the unanimous opinion by Chief Judge David B. Sentelle and Judge Thomas B. Griffith.

Parhat's lawyers argued that the Chinese government, which has been accused of persecuting Uighurs, was the source of some of the classified information used against him during his tribunal.

"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," Judge Garland wrote.

The court rejected "the government's contention that it can prevail by submitting documents that read as if they were indictments or civil complaints" and "simply assert as facts the elements required to prove that a detainee falls within the definition of enemy combatant," according to the ruling. "To do otherwise would require the courts to rubber-stamp the government's charges."

Susan Baker Manning, who represents Parhat, said the opinion confirmed a long-standing doctrine that courts and tribunals can't simply rely on "the government's say-so."

"You know you are in trouble when they are quoting Lewis Carroll," Manning said. "There is a real question about the extent to which any [tribunal] can survive the scrutiny that Congress required."