Parhat v. Gates

• Decision Date: 20 June 2008
• Docket Number: No. 06-1397.,06-1397.
• Citation: 532 F.3d 834
• Parties: Huzaifa PARHAT, Petitioner v. Robert M. GATES, Secretary of Defense, et al., Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

532 F.3d 834

Huzaifa PARHAT, Petitioner v. Robert M. GATES, Secretary of Defense, et al., Respondents.

No. 06-1397.

United States Court of Appeals, District of Columbia Circuit.

Argued April 4, 2008.

Decided June 20, 2008.

P. Sabin Willett argued the cause for petitioner. With him on the briefs were Susan Baker Manning, Rheba Rutkowski, Neil McGaraghan, and Jason S. Pinney.

Gregory G. Katsas, Deputy Associate Attorney General, U.S. Department of Justice, argued the cause for respondents. On the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jonathan F. Cohn, Deputy Assistant Attorney General, and Douglas N. Letter, Robert M. Loeb, August E. Flentje, Pamela M. Stahl, Jennifer A. Paisner, and Catherine Y. Hancock, Attorneys.

Before: SENTELLE, Chief Judge, and GARLAND and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

On Petition for Review of an Order of a Combatant Status Review Tribunal.

GARLAND, Circuit Judge:

A Combatant Status Review Tribunal has decided that petitioner Huzaifa Parhat, a detainee at the United States Naval Base at Guantanamo Bay, Cuba, is an "enemy combatant." This is the first case in which this court has considered the merits of a petition to review such a decision under the Detainee Treatment Act of 2005. The Act grants this court jurisdiction to "determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant." We conclude that the Tribunal's decision in Parhat's case was not valid.

Parhat is an ethnic Uighur, who fled his home in the People's Republic of China in opposition to the policies of the Chinese government. It is undisputed that he is not a member of al Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies. The Tribunal's determination that Parhat is an enemy combatant is based on its finding that he is "affiliated" with a Uighur independence group, and the further finding that the group was "associated" with al Qaida and the Taliban. The Tribunal's findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements' reliability. Parhat contends, with support of his own, that the Chinese government is the source of several of the key statements.

Parhat's principal argument on this appeal is that the record before his Combatant Status Review Tribunal is insufficient to support the conclusion that he is an enemy combatant, even under the Defense Department's own definition of that term. We agree. To survive review under the Detainee Treatment Act, a Tribunal's determination of a detainee's status must be based on evidence that both the Tribunal and the court can assess for reliability. Because the evidence the government submitted to Parhat's Tribunal did not permit the Tribunal to make the necessary assessment, and because the record on review does not permit this court to do so, we cannot find that the government's designation of Parhat as an enemy combatant is supported by a "preponderance of the evidence" and "was consistent with the standards and procedures" established by the Secretary of Defense, as required by the Act.

To affirm the Tribunal's determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion. That is not what Congress directed us to do when it authorized judicial review of enemy combatant determinations under the Act. Accordingly, we direct the government to release Parhat, to transfer him, or to expeditiously convene a new Combatant Status Review Tribunal to consider evidence submitted in a manner consistent with this opinion. As discussed in Part V, this disposition is without prejudice to Parhat's right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court's recent decision in Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, ___ L.Ed.2d ___ (2008).

We also deny, without prejudice, the government's motion to protect from public disclosure all nonclassified record information that it has labeled "law enforcement sensitive," as well as the names and "identifying information" of all U.S. government personnel mentioned in the record. Although we do not doubt that there is information in these categories that warrants protection, the government has proffered only a generic explanation of the need for protection, providing no rationale specific to the information actually at issue in this case.

By resting its motion on generic claims, equally applicable to all of the more than one hundred other detainee cases now pending in this court, the government effectively "proposes unilaterally to determine whether information is `protected.'" Bismullah v. Gates, 501 F.3d 178, 188 (D.C.Cir.2007). Without an explanation geared to the information at issue in this case, we are left with no way to determine whether that specific information warrants protection — other than to accept the government's own designation. But as we held in Bismullah, "[i]t is the court, not the Government, that has discretion to seal a judicial record, which the public ordinarily has the right to inspect and copy." Id. (internal citations omitted). We therefore deny the government's motion and direct it to file a renewed motion, accompanied by a copy of the record identifying the specific information it seeks to designate and pleadings explaining why protecting that specific information is required.

I

Parhat is a Chinese citizen of Uighur heritage. Combatant Status Review Tribunal (CSRT) Decision Report, encl. 2, at 1 (Dec. 6, 2004) (App.14) (CSRT Decision). The Uighurs are from the far-western Chinese province of Xinjiang, which the Uighurs call East Turkistan. Id. According to Parhat, he fled China in May 2001 because of "oppression and torture imposed on [Ui]gh[u]r people by the Chinese Government." CSRT Exhibit R7, at 1 (App.51) (FBI interview report dated May 11, 2002). "This oppression," he said, "included harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas." Id. Parhat arrived at a Uighur camp in Afghanistan in June 2001. CSRT Decision, encl. 2, at 1 (App.14).

On September 11, 2001, members of al Qaida attacked the World Trade Center and the Pentagon with hijacked commercial airplanes, killing almost three thousand people. Seven days later, Congress authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Authorization To Use Military Force (AUMF), Pub.L. 107-40, § 2(a), 115 Stat. 224, 224 (2001) (reprinted at 50 U.S.C. § 1541 note). Pursuant to the AUMF, the President ordered the United States Armed Forces to invade Afghanistan, where the Taliban (which then governed the country) had been supporting and harboring al Qaida.

In mid-October 2001, U.S. aerial strikes destroyed the camp where Parhat had been living. Thereafter, according to his undisputed testimony, Parhat and seventeen other unarmed Uighurs fled the camp, eventually crossing into Pakistan. Local villagers took the Uighurs in, gave them food and shelter, and then — in approximately December 2001 — handed them over to Pakistani officials who turned them over to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he remains imprisoned.

In 2003, a military officer of the Criminal Investigation Task Force (CITF), U.S. Department of Defense (DOD), who was charged with reviewing Parhat's case, "`recommend[ed] the release of Parhat under a conditional release agreement.'" Pet'r Br. 6 (quoting CSRT Decision, encl. 2, at 2 (App.15)).¹

On July 7, 2004, in a memorandum to the Secretary of the Navy, the Deputy Secretary of Defense issued an order establishing Combatant Status Review Tribunals (CSRTs). Order Establishing Combatant Status Review Tribunal (July 7, 2004) (DOD Order). Three weeks later, the Secretary of the Navy, whom the DOD Order had designated "to operate and oversee th[e] [CSRT] process," issued a memorandum that established the standards and procedures for those Tribunals. Implementation of Combatant Status Review Tribunal Procedures at 2 (July 29, 2004) (Navy Memorandum). The Navy Memorandum describes the Tribunals as "non-adversarial proceeding[s] to determine whether each detainee" at Guantanamo "meets the criteria to be designated as an enemy combatant." Id. at E-1 § B. The Order and Memorandum both define an "enemy combatant" as:

an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.

Id.; DOD Order at 1.

A CSRT was held for Parhat on December 6, 2004. The proceedings consisted of an unclassified session, at which Parhat was present and answered questions under oath, followed by a classified session, at which Parhat was not present and in which the Tribunal considered classified documents not made available to him. The only evidence regarding the circumstances of Parhat's background and capture was his own interviews and testimony. Parhat denied association with al Qaida or the Taliban, stated that h...