Parhat v. Gates: Judicial snark - cited by name!!

The first judicial review of a detainee's classification as an enemy combatant, Parhat v. Gates (No. 06-1397 D.C. Circuit) is now out for public review. Opinion in PDF

As is well known - they ruled against the government. Here's a nice summary of why:

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.

In other words: The DTA requires us to review the evidence's reliability. We have not been allowed to review this evidence - therefore we cannot certify that Parhat is an enemy combatant under the DTA.

Government, meet your own petard.

In case anyone in the executive doesn't get what this is about, the court flirts with judicial snark and spells it out:

To affirm the Tribunal’s determination under such circumstances would be to place a judicial imprimatur on an act of essentially unreviewable executive discretion.

If people are going to be locked up over someone's say so - there should probably be some kind of meaningful, independent review.

That the very first case that gets reviewed (even under the restricted review under the DTA) gets swatted down unanimously by a mostly conservative court speaks - or rather screams - volumes about how flawed a process this administration has created.

And then....? Oh joy of joys! oh, happy anticipation!

-then the Court reaches for the snark:

...the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true.

With the administration's nose firmly in their grip, they proceed to squeeze...

...See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876)(“I have said it thrice: What I tell you three times is true.”)

You can almost hear the honking sound.