by Andy Worthington
Some of us have known for years that
the US administration’s basis for holding prisoners without charge
or trial in the “War on Terror” has more to do with a fantasy world
in which nonsense masquerades as truth, logic is skewed, and nothing
that is uttered remotely resembles evidence that would stand up in a
court of law.
At the heart of this fantasy world are
the Combatant Status Review Tribunals (CSRTs). Introduced in summer
2004, in a deliberate snub to the Supreme Court, which had just ruled
that, contrary to the administration’s assertions, Guantánamo was
run by the US and not by Cuba, and that the prisoners had the right
to know why they were being held (under the “Great Writ” of habeas
corpus, inherited from the British, and designed to prevent executive
tyranny), the CSRTs were pale mockeries of the Geneva Conventions”
Article 5 battlefield tribunals, which were intended to separate soldiers
from civilians swept up by accident in the heat of battle.
The battlefield tribunals, which the
United States promoted and used in wars from Vietnam onwards, took place
close to the time and place of capture, so that witnesses could reasonably
be called, and enabled the US military, during the first Gulf War, to
send home nearly a thousand men who would otherwise have been wrongly
held as Prisoners of War.
Post-9/11, with the Geneva Conventions
shredded by the administration, the prisoners at Guantánamo – “detainees”
held as “enemy combatants” without rights – had to wait two and
a half years until, in response to the Supreme Court’s ruling, the
administration introduced the CSRTs, which were ostensibly empowered
to call witnesses, but in reality did no such thing.
Far from the time and place of capture,
the prisoners” requests for outside witnesses were all refused (on the basis that the most powerful government
in the world was unable to track them down, even if they were serving
in the US-backed Afghan government). In addition, the prisoners were
refused the right to legal representation, and were prey to secret evidence,
which was not disclosed to them, and which was frequently nothing more
than hearsay, spurious allegations furnished by bounty hunters selling
innocent men or foot soldiers to the US military as “terrorists,”
or blatantly false confessions obtained from other prisoners through
the use of torture, coercion or bribery.
The disgraceful failings of the CSRTs
have been analyzed in depth, in particular in a February 2006 report by the Seton Hall Law School (based on a series
of “Unclassified Summaries of Evidence” released by the Pentagon
in 2005), in my book The Guantánamo Files: The
Stories of the 774 Detainees in America’s Illegal Prison (based on a detailed analysis of 8,000 pages
of documents released by the Pentagon in 2006), and in statements made
last year (here
and here)
by Lt. Col. Stephen Abraham, a veteran of US intelligence who worked
on the CSRTs, and who concluded that the gathering of materials for
use in the tribunals was severely flawed, consisting of intelligence
“of a generalized nature – often outdated, often “generic,”
rarely specifically relating to the individual subjects of the CSRTs
or to the circumstances related to those individuals” status,” that
“what purported to be specific statements of fact lacked even the
most fundamental earmarks of objectively credible evidence,” and that
the whole system was geared towards rubber-stamping the detainees”
prior designation as “enemy combatants.”
Until now, however, the tribunals”
failings had never been deconstructed by a US court, and certainly not
with the acute savagery reserved for last week’s ruling in the case
of Parhat v. Gates. As one of dozens of cases that had been stuck
in a legal roadblock after the executive persuaded Congress to change
the law to remove the prisoners” habeas rights (a decision which was
only finally reversed three weeks ago, when the Supreme Court granted the prisoners constitutional habeas
corpus rights), the bare bones of the Parhat verdict, reported recently week, were explosive enough. In a one-page
ruling, the judges in the Court of Appeals in Washington – noticeably,
two Republicans and a Democrat – “held invalid a decision of a Combatant
Status Review Tribunal” that Huzaifa Parhat – one of 18 Uighurs
(Muslims from an oppressed outpost of China), who are not even alleged
to have raised arms against the US – was an enemy combatant,” and
“directed the government to release or transfer” him (or to hold
a new tribunal “consistent with the Court’s opinion”).
Now that the full opinion (PDF)
has been released, however, the damage to the administration’s credibility
is even more pronounced. Tearing into the so-called evidence, the court
reserved particular venom for the government’s claim that Parhat was
an “enemy combatant” because he was “affiliated with forces associated
with al-Qaeda and the Taliban.” The government’s verdict hinged
on a claim that the camp in which the Uighurs had been living in Afghanistan
(before it was bombed by US forces, forcing them to flee to Pakistan,
where they were sold to the US military) was run by a man who ran a
Uighur independence movement (the East Turkistan Independence Movement),
which was allegedly “associated” with al-Qaeda and the Taliban,
even though, as the judges noted, “no source document evidence was
introduced to indicate ” that the Detainee had actually joined ETIM.”
Furthermore, the judges scolded the government
for its shoddy attempts to link ETIM to the Taliban and al-Qaeda, noting
that, as the Afghan government, the Taliban had provided “housing”
to a variety of groups, “which no doubt ranged from orphanages to
terrorist organizations like al-Qaeda,” but that these groups were
not all “”associated” with the Taliban in a sense that would make
them enemy combatants,” and singled out for particular criticism a
piece of exculpatory evidence – a claim by another Uighur that the
camp actually predated the Taliban regime – which was excluded from
Parhat’s CSRT.
They also took exception to the government’s
claim that its “evidence” was reliable because it was repeated in
a number of different classified documents, noting that the sources
for this supposed “evidence” were both vague and impenetrable. They
explained that descriptions of ETIM’s activities, and its purported
relationship to al-Qaeda, were repeatedly described “as having “reportedly”
occurred, as being “said to” or “reported to” have happened,
and as things that “may” be true or are “suspected” of having
taken place. But in virtually every instance, the documents do not say
who “reported” or “said” or “suspected” those things ”
Because of those omissions, the Tribunal could not and this court cannot
assess the reliability of the assertions in the documents. And because
of this deficiency, those bare assertions cannot sustain the determination
that Parhat is an enemy combatant.”
The judges also attacked an additional
claim that the information would not have been included if it wasn’t
reliable. “This comes perilously close to suggesting that whatever
the government says must be treated as true,” the judges stated, “thus
rendering superfluous both the role of the tribunal and the role that
Congress assigned to this court,” when, having stripped the prisoners
of their habeas rights, the Detainee Treatment Act of 2005 allowed them
the limited review that led, eventually, to the momentous decision in
Parhat.
The judges also visited territory covered
by Lt. Col. Abraham, demolishing “the government’s contention that
it can prevail by submitting documents that read as if they were indictments
or civil complaints” and that it can “simply assert as facts the
elements required to prove that a detainee falls within the definition
of enemy combatant,” noting that following this line of argument “would
require the courts to rubber-stamp the government’s charges, in contravention
of our understanding that Congress intended the court to engage in
meaningful review of the record.”
In another line of attack, the judges
noted that Parhat’s lawyers had argued that the Chinese government
– the Uighurs” only enemy, according to their many accounts at Guantánamo
– was the source of some of the classified information used against
him during his tribunal, which prompted Judge Merrick B. Garland to
conclude, “Parhat has made a credible argument that – at least for
some of the assertions – the common source is the Chinese government,
which may be less than objective with respect to the Uighurs.”
In the most stunning passage, however
– and the one that brings Lewis Carroll and the fantasies of Alice
in Wonderland and Through the Looking Glass into sharp focus
– Judge Garland quoted from Carroll’s poem The Hunting of the
Snark as another method of discrediting the government’s argument
that its evidence was reliable because it was mentioned in three different
classified documents. In one sentence, which, either by happy coincidence
or deliberate design, shines an unwavering light on the post-9/11 fantasy
world in which evidence can be conjured up out of nowhere, Judge Garland,
who was joined in the unanimous opinion by Chief Judge David B. Sentelle
and Judge Thomas B. Griffith, wrote, “Lewis Carroll notwithstanding,
the fact the government has ‘said it thrice” does not make an allegation
true.”
Do you remember the trial at the end
of Alice in Wonderland?
“Let the jury consider their verdict,”
the King said, for about the twentieth time that day.
“No, no!” said the Queen. “Sentence first – verdict afterwards.”
“Stuff and nonsense!” said Alice loudly. “The idea of having the
sentence first!”
“Hold your tongue!” said the Queen, turning purple.
“I won’t!” said Alice.
“Off with her head!” the Queen shouted at the top of her voice.
Nobody moved.
“Who cares for you?” said Alice ” “You”re nothing but a pack
of cards!”
Andy Worthington is the author of The Guantanamo Files: The Stories of the 774
Detainees in America’s Illegal Prison
(published by Pluto Press/the University of Michigan Press).