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 (12 days ago) – as significant
challenges to executive overreach.
In a one-page
ruling in the case of Huzaifa Parhat, a Uighur (a Muslim from the oppressed
Xinjiang province of China), the U.S. Court of Appeals in Washington "held
invalid a decision of a combatant status review tribunal that petitioner Huzaifa
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
last year, were, in complete contrast to the purpose of Rasul, essentially
designed to rubber-stamp their prior designation as "enemy combatants"
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
This is no exaggeration on Willett's part. Twenty-two Uighurs were originally
held in Guantánamo, and all but four were, like Huzaifa Parhat, seized
by enterprising Pakistani villagers, who were no doubt eager for the substantial
bounties offered by U.S. 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 U.S. forces in October 2001 and
subsequently fled to Pakistan, where they were seized and transferred to U.S.
Despite cynical attempts to portray them as separatist "terrorists"
with links to al-Qaeda (which was part of a deal between the U.S. and China
to prevent Chinese opposition to the invasion of Iraq), U.S. forces knew from
least 2003 that none of the men posed a threat to the U.S. 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 – Huzaifa 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 Huzaifa 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, 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
An Excerpt From Huzaifa Parhat's Combatant Status Review
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 1 or 2 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."