In the history of legal challenges to the Bush administration’s assertion that it can hold “War on Terror” prisoners indefinitely without charge or trial, Parhat v. Gates has just joined a trio of Supreme Court verdicts — Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (twelve days ago) — as significant challenges to executive overreach.
In a one-page ruling in the case of Hufaiza Parhat, a Uighur (a Muslim from the oppressed Xinjiang province of China), the US Court of Appeals in Washington “held invalid a decision of a Combatant Status Review Tribunal that petitioner Hufaiza Parhat is an enemy combatant.” The court also “directed the government to release or transfer Parhat” (or, more worryingly, “to hold a new Tribunal consistent with the Court’s opinion”), and also “stated that its disposition was without prejudice to Parhat’s right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court’s decision in Boumediene v. Bush.”
The verdict has been a long time coming. When Guantánamo opened in January 2002, the prisoners, who had been designated as “enemy combatants” on capture, were deprived of all rights until the Supreme Court ruled in Rasul that they had statutory habeas corpus rights. This ruling paved the way for the prisoners to meet with lawyers to build habeas cases, but in the meantime the administration subjected the prisoners to administrative reviews — the Combatant Status Review Tribunals (CSRTs) — which prevented them from having legal representation, relied upon secret evidence that could have been obtained through torture or coercion, and, as former insider Lt. Col. Stephen Abraham explained last year, were, in complete contrast to the purpose of Rasul, essentially designed to rubber-stamp their prior designation as “enemy combatants” without rights.
In a further blow to Rasul, Congress was persuaded to pass the Detainee Treatment Act (DTA) in 2005, which removed the prisoners’ habeas rights, and limited any review of their cases to the Circuit Courts (rather than the Supreme Court), apparently preventing any independent fact-finding to challenge the substance of the administration’s allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid. Since last summer, when the Supreme Court agreed to hear Boumediene, the DTA cases have been on hold, as the lower court judges awaited the Supreme Court’s verdict.
Given these limitations, the verdict of the DC Circuit Court judges is nothing short of astonishing. The full details are not yet clear, as the Court also noted that “the opinion contains classified information that the government had initially submitted for treatment under seal,” and that “a redacted version for public release is in preparation,” but, as the Los Angeles Times noted, “those familiar with the panel’s decision … said it suggested that other judges might follow its lead and challenge the government’s underlying reasons for keeping detainees like Parhat in military custody for so long.”
Underlining the triumph of the verdict, but also the long injustice that preceded it, Parhat’s lawyer, Sabin Willett, said, “It is a tremendous day. It is a very conservative court, but we pressed ahead and we won unanimously. But Huzaifa Parhat is now in his seventh year of imprisonment at Guantánamo Bay, and he doesn’t even know about this ruling because he’s sitting in solitary confinement and we can’t tell him about it. That’s what we do to people in this country — we put them in solitary confinement even when they are not enemy combatants.”
This is no exaggeration on Willett’s part. Twenty-two Uighurs were originally held in Guantánamo, and all but four were, like Hufaiza Parhat, seized by enterprising Pakistani villagers, who were no doubt eager for the substantial bounties offered by US forces for “al-Qaeda and Taliban suspects.” It has been established beyond a doubt that these 18 men had fled persecution in China, and were eking out a meager living in a run-down hamlet in Afghanistan’s eastern mountains, when they were bombed by US forces following the invasion of Afghanistan in October 2001, and subsequently fled to Pakistan, where they were seized and transferred to US custody.
Despite cynical attempts to portray them as separatist “terrorists” with links to al-Qaeda (which was part of a deal between the US and China to prevent Chinese opposition to the invasion of Iraq), US forces knew from at least 2003 that none of the men posed a threat to the US or its interests, that they only had one enemy — China — as they had all insisted repeatedly, and that they had no connection whatsoever with the Taliban or al-Qaeda.
And yet the Uighurs’ stories demonstrate some of the more egregious flaws in the tribunal system at Guantánamo. Although their stories were identical, some of the men were judged to be “enemy combatants,” while others were cleared for release. This infuriated the administration to such an extent that, in the cases of at least two of the men, Anwar Hassan and Hammad Mohammed, further tribunals were convened, on the orders of Matthew Waxman, the deputy assistant secretary of defense for Detainee Affairs, which reversed the earlier verdicts. Hassan’s lawyers, Angela Vigil and George Clarke, noted that, “contrary to the government’s suggestion,” the change of determination between the first and second CSRTs was not based on “additional classified information,” (of which there was none) but was, instead, based solely on “communications” from Waxman “pressing for a reversal” of the first CSRT determination.
Although the administration pandered further to Chinese pressure by allowing Chinese interrogators to visit the men (and in some cases to threaten them) at Guantánamo, they drew the line at returning them to certain torture in their homeland. In May 2006, after trawling the world for suitable host countries, Albania was prevailed upon to accept five of the men, but the rest — Hufaiza Parhat included — remain in solitary confinement, as Sabin Willett noted, even though they are not “enemy combatants,” and never have been.
The following exchange comes from Hufaiza Parhat’s CSRT, which took place nearly four years ago. In it, he explains why he left his homeland, why he is opposed to Chinese rule, and why he is a supporter rather than an opponent of the United States. Sadly, although the Circuit Court’s ruling in Parhat v. Gates is legally significant, it cannot wipe away the scandal of Parhat’s horrific and ongoing isolation in Guantánamo, and nor can it provide him with a new home. Perhaps, as another of his lawyers, Susan Baker Manning, explained (in the Washington Post’s words), “the best option is to release them to the United States.”
An excerpt from Hufaiza Parhat’s Combatant Status Review Tribunal
Detainee: They are saying that we are against the United States. Is that right?
Tribunal President: Yes.
Detainee: That is not true because from the time of our great-grandparents centuries ago, we have never been against the United States and we do not want to be against the United States … Also, I can represent for 25 million Uighur people by saying that we will not do anything against the United States. We are willing to be united with the United States. I think that the United States understands the Uighur people much better than other people.
The reason we went into Pakistan was because in China there is torture and too much pressure on the Uighur people. Lately they have laid off the Uighur people from their jobs … and filled all the jobs with immigrant Chinese.
The Uighurs have families and need support to eat and if we don’t do something then how are we going to live? If they (fellow Uighurs) wanted to go and farm they would have to pay a lot of taxes. If they can’t pay the taxes, they would take away their property.
So many people are without an education because they (the Chinese) are asking too much money for an education. Now there are a great number of young people on the streets with no education. The Uighur people only have the privilege of having two children. If a female gets pregnant with a third child, the government will forcibly take the kid through abortion.
Lots of Uighur people are so poor that we can’t afford to eat meat weeks to months at a time. Turkistan [the Uighurs’ name for their homeland] has a lot of natural resources and they (the Chinese) don’t use one or two percent of it for Turkistan. They take the majority of the resources day and night to the mainland in China. If they torture us everyday and pressure us too much, then what are we going to do? How are we going to live? In the future, what will the next generation do? How will they survive? That is why I left my country to try to get something, get back and liberate my people and get our country independence … That is the reason we went to Afghanistan.
ANDY WORTHINGTON is a British historian, and the author of ‘The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison’ (published by Pluto Press). Visit his website at: www.andyworthington.co.uk
He can be reached at: firstname.lastname@example.org