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<font face="Verdana" size=2>June 25, 2008<br>
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<a href="http://www.counterpunch.org/worthington06252008.html" eudora="autourl">
http://www.counterpunch.org/worthington06252008.html<br><br>
</a></font><font face="Times New Roman, Times" size=4><b><i>The Meaning
of Parhat vs. Gates <br><br>
</i></font><h1><font face="Times New Roman, Times" size=5 color="#990000">
<b>Six Years Late, Court Throws Out Gitmo
Case</b></font></h1><font face="Times New Roman, Times" size=4>By ANDY
WORTHINGTON <br><br>
</font><font face="Verdana" size=6 color="#990000">I</font>
<font face="Verdana" size=2>n the history of legal challenges to the Bush
administration’s assertion that it can hold “War on Terror” prisoners
indefinitely without charge or trial, <i>Parhat v. Gates</i> has just
joined a trio of Supreme Court verdicts -- <i>Rasul v. Bush</i> (2004),
<i>Hamdan v. Rumsfeld</i> (2006) and <i>Boumediene v. Bush</i> (twelve
days ago) -- as significant challenges to executive overreach.<br><br>
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
<i>Boumediene v. Bush</i>.”<br><br>
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 <i>Rasul</i> 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
<i>Rasul</i>, essentially designed to rubber-stamp their prior
designation as “enemy combatants” without rights.<br><br>
In a further blow to <i>Rasul</i>, 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
<i>Boumediene</i>, the DTA cases have been on hold, as the lower court
judges awaited the Supreme Court’s verdict.<br><br>
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 <i>Los Angeles Times</i> 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.”<br><br>
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.”<br><br>
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. <br><br>
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. <br><br>
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.<br><br>
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. <br><br>
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 <i>Parhat v. Gates</i> 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 <i>Washington Post</i>’s words),
“the best option is to release them to the United
States.” <br><br>
<b>An excerpt from Hufaiza Parhat’s Combatant Status Review
Tribunal<br><br>
</font>
<dl>
<dd>Detainee</b>: They are saying that we are against the United States.
Is that right?<br><br>
<dd>Tribunal President</b>: Yes.<br><br>
<dd>Detainee</b>: 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.<br><br>
<dd>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. <br><br>
<dd>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.<br><br>
<dd>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. <br><br>
<dd>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.<br><br>
</dl>Andy Worthington</b> is a British historian, and the author of
'<a href="http://www.amazon.com/exec/obidos/ASIN/0745326641/counterpunchmaga">
The Guantánamo Files: The Stories of the 774 Detainees in America's
Illegal Prison'</a> (published by Pluto Press). Visit his website at:
<a href="http://www.andyworthington.co.uk/">www.andyworthington.co.uk</a>
<br><br>
He can be reached at:
<a href="mailto:andy@andyworthington.co.uk">andy@andyworthington.co.uk</a>
<br><br>
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