Can the president indefinitely detain someone who has no connection to al-Qaida and who has not engaged in any belligerent acts against the United States?
Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version on Monday.
Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush administration's detention policy-namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the president in the conflict against al-Qaida.
Within a week after the attacks of Sept. 11, 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 ."
The administration argues that this Authorization for Use of Military Force authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.
Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al-Qaida or of the Taliban. Indeed, the Pentagon's Combatant Status Review Tribunal did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).
So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced weegur ). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to "oppression and torture" by the Chinese Government, including "harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas." In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone-not the United States-as his enemy.
In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and 17 other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them 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 has remained imprisoned for more than six years.
In light of all this-and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks)-what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?
Find out at Balkinization .