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US: 9/11 law allows detention of Chinese Muslim, even without act of terrorism
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    WASHINGTON — The Bush administration argued Friday that when Congress authorized military action against the Sept. 11, 2001 terrorists, it also gave the president the power to detain people who never took up arms against the U.S.
    The Justice Department took that position as it defended the six-year detention of Huzaifa Parhat (pronounced hoo-ZY’-fah PAHR’-haht), a Chinese Muslim known as a Uighur. He was captured in Afghanistan but says he considers China, not the United States, the enemy.
    Parhat is one of several Uighurs being held at Guantanamo Bay as suspected terrorists. Their case has become a diplomatic and legal headache for the U.S., which has tried to find a country willing to accept the Uighurs (pronounced WEE’-gurs) even as it defended its decision to hold them as enemy combatants.
    On Friday, Parhat became the first person to challenge that label. His lawyers say the government hasn’t even met its own relatively low standard to hold him as an enemy combatant.
    The Justice Department concedes that Parhat never fought against the U.S. and says it has no evidence he was planning to do so. Yet government attorneys say he can be held under the law authorizing military force against anyone who ‘‘planned, authorized, committed, or aided the terrorist attacks’’ of 2001.
    The case hinges on Parhat’s connection to the East Turkestan Islamic Movement, a militant group that demands separation from China. The United States named it a terrorist groups in 2002, a move that some international affairs analysts say was made to appease China and ensure it would not oppose the invasion of Iraq.
    ‘‘Lots of people go on China’s terrorism list. Just ask the Dalai Lama,’’ attorney P. Sabin Willett told the court. ‘‘Congress never authorized war against this group.’’
    The military says Parhat trained in an ETIM camp to prepare to fight against China. The Chinese government blames the separatist group for hundreds of attacks, while human rights groups say Beijing represses religious freedom and uses anti-terrorism laws to crack down on legitimate protests.
    Justice Department attorney Gregory G. Katsas told a three-judge panel that the U.S. has classified intelligence that ETIM is affiliated with al-Qaida, though officials did not identify the source of that intelligence either to the judges or to the military reviewers. China has made similar claims but has offered no evidence.
    The U.S. acknowledges it has no evidence that Parhat joined that group. His ‘‘affiliation’’ alone, the military said, justified his detention as an enemy combatant. Judge Thomas B. Griffith questioned that logic. He said the law explicitly says there must be a connection to the Sept. 11 attacks.
    Katsas said Congress never intended to authorize force only against terrorists involved with the Sept. 11 attacks or against ‘‘al-Qaida in some rigid, formalistic sense.’’
    ‘‘The question is, ’What is al-Qaida?’’’ Katsas said, adding that if the military determines ETIM and al-Qaida are affiliated, the courts should defer to that judgment.
    If the court agrees he is not an enemy combatant, Parhat’s attorneys want him released into the United States. But the judges questioned whether they had the authority to order that, since Parhat has never entered the country. The U.S. is concerned they will be tortured or killed if returned to China, but the court can’t order another country to take him.
    ‘‘The Uighurs are a difficult problem,’’ then-Secretary of State Colin Powell said in 2004. ‘‘The Uighurs are not going back to China, but finding places for them is not a simple matter. But we are trying to find places for them.’’
    Judge Merrick B. Garland suggested Friday that the Bush administration could resolve the same way it did in 2006, when, faced with a court order that some Uighurs were being held illegally, it arranged for five detainees to be sent to Albania.
    ‘‘If you did that, you would solve our problem’’ Garland said, ‘‘as well as Mr. Parhat’s.’’

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