A first, court says Pentagon erred in a combatant case

 

mtaylor@mcclatchydc.oom

WASHINGTON -- A federal appeals court for the first time has overturned the military's designation of a Guantánamo detainee as an enemy combatant.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned as "invalid" a military tribunal's conclusion that prisoner Huzaifa Parhat is an enemy combatant.

The court directed the Pentagon either to release or transfer Parhat or to hold a new tribunal hearing "consistent with the court's opinion."

This is the first time that a circuit court has overruled a finding by a so-called status review tribunal, the Pentagon panels of military officers that determine whether a captive at Guantánamo meets the definition of "enemy combatant."

The ruling could force the government to release Parhat and reassess enemy-combatant designations in other cases. Administration officials have vowed to close Guantánamo someday, but they say they're "stuck'' with the 65 or so detainees who've been identified for release but can't be let go because their countries refuse to take them back.

Some 270 people are held as enemy combatants at Guantánamo.

Parhat, 37, has been held more than six years. He's one of a group of ethnic Uighurs from western China who were shipped to Guantánamo from Afghanistan in May 2002.

The United States has faced numerous problems finding countries that are willing to accept foreign prisoners who can't return to their own countries because of concerns that they might be tortured there.

Five other Uighurs who weren't declared enemy combatants waited nine months after their release was approved before U.S. officials persuaded Albania to accept them. Parhat is one of 17 Uighurs still held as enemy combatants.

"This is a case of someone being in the wrong place at the wrong time," said Jason Pinney, one of Parhat's attorneys. "We hope this ruling increases the pressure on the government to do the right thing and resettle people to third countries when they need to. It bodes very well for other detainees."

The Pentagon declined comment on the ruling, referring questions to the Justice Department, where spokesman Erik Ablin said he couldn't answer questions about the decision because the department was still reviewing it.

In a June 19 letter to Defense Secretary Robert Gates that was released Monday, Reps. Bill Delahunt, D-Mass., and Dana Rohrabacher, R-Calif., say that the Uighurs are friends of the United States and should be paroled to the U.S. The lawmakers urged that they be transferred to less-restrictive quarters at Guantánamo Bay in the meantime.

Parhat's appeal of his status was filed with the appeals court in December 2006 after Congress granted the court authority to hear such challenges. The appeals court noted that Parhat also has the right to appeal his confinement to a federal district court under a U.S. Supreme Court ruling issued earlier this month.

The circuit judges didn't immediately release their full ruling, but announced the decision in a short notice posted Monday. The court said it would release a redacted version later that would be free of classified information.

According to records of Parhat's tribunal proceeding, the military accused him of being a member of the East Turkistan Islamic Movement and said that a weapons training camp he'd attended in Afghanistan's Tora Bora mountains was run by the Taliban. He denied being a member of the group and said he didn't know who'd backed the camp.

"I believe that the (Uighur) people were trying to get back their country from China and I don't believe Osama bin Laden or the Taliban were financially providing for the camp," he said at the tribunal.

Parhat also said he wasn't an enemy of the United States, and that he and other Uighurs had left China because they were being persecuted.

"We have never been against the United States," he said. "I think that the United States understands the (Uighur) people."

The military has concluded at various times that Parhat should be released, Pinney said.

The tribunal found in 2005 that there was no evidence that Parhat was a member of the East Turkistan Islamic Movement. However, it concluded that because he'd attended the camp, he still could be held as an enemy combatant.

A review board later cleared him for release. Defense attorneys don't know the exact date of the decision, but were informed in February 2007. By then, Parhat's lawyers were waiting for the courts to rule on a challenge to his detention and to his enemy-combatant status.

Declassified documents turned over to Parhat's lawyers showed that government officials had recommended releasing him as early as 2003.

Pinney said he thought that U.S. officials hadn't released him in part to avoid harming diplomatic relations with China. Parhat's lawyers have demanded that the military find another country that's willing to accept him, citing Parhat's fear that he'll be tortured if he's returned to China.

Earlier this month, the Supreme Court ruled 5-4 that Guantánamo Bay detainees can challenge their extended imprisonment in federal court, and struck down the circuit court review as an alternative.

The ruling in Boumediene v. Bush was the latest in a string of judicial defeats for the Bush administration. It marked the third time in four years that the Supreme Court has repudiated the administration's efforts to exclude foreign prisoners from traditional legal protections.

The Miami Herald's Carol Rosenberg contributed to this report from Miami.

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