Gitmo Detainees Might Not Be Who You Think They Are

"Islamic terrorists have constitutional rights," lamented one conservative blog, when the Supreme Court said Guantanamo inmates can challenge their detention in court. "These are enemy combatants," railed Sen. John McCain. The court, charged former federal prosecutor Andrew McCarthy of National Review, sided with foreigners "whose only connection with our body politic is their bloody jihad against Americans."

The operating assumption here is that the prisoners are terrorists who were captured while fighting a vicious war against the United States. But can the critics be sure? All they really know about the Guantanamo detainees is that they are Guantanamo detainees. To conclude that they are all bloodthirsty jihadists requires believing that the U.S. government is infallible.

But how sensible is that approach? Judging from a little-noticed federal appeals court decision that came down after the Supreme Court ruling, not very.

The case involved Huzaifa Parhat, a Chinese Muslim who fled to Afghanistan in May 2001 to escape persecution of his Uighur ethnic group by the Beijing government. When the U.S. invaded after the 9/11 attacks, the Uighur camp where he lived was destroyed by airstrikes. He and his compatriots made their way to Pakistan, where villagers handed them over to the government, which transferred them to American custody.

You might think you would have to do something pretty obvious to wind up in Guantanamo. Apparently not. The U.S. government does not claim Mr. Parhat was a member of the Taliban or al-Qaida. He was not captured on a battlefield. The government's own military commission admitted it found no evidence that he "committed any hostile acts against the United States or its coalition partners."

So why did the Pentagon insist on holding him as an enemy combatant? Because he was affiliated with the East Turkestan Islamic Movement, a separatist Muslim group fighting for independence from Beijing. It had nothing to do with the 9/11 attacks but reputedly got help from al-Qaida.

But the U.S. Court of Appeals for the District of Columbia Circuit, after reviewing secret documents submitted by the government, found that there was no real evidence. It said the flimsy case mounted against Mr. Parhat "comes perilously close to suggesting that whatever the government says must be treated as true." And it ruled that, based on the information available, he was not an enemy combatant even under the Pentagon's definition of the term.

Is this verdict just another act of judicial activism by arrogant liberals on the bench? Not by a long shot.

Of the three judges who signed the opinion, one, Thomas Griffith, was appointed in 2005 by President Bush. Another, David Sentelle, was nominated in 1985 by President Ronald Reagan - and had earlier joined in ruling that the Guantanamo detainees could not go to federal court to assert their innocence (a decision the Supreme Court overturned).

The administration could hardly have asked for a more accommodating group of judges. Yet they found in favor of the detainee on the simple grounds that if the government is going to imprison someone as an enemy combatant, it needs some evidence that he is one.