July 2, 2008—The first Guantanamo Bay “enemy combatant” review case to go before a federal appeals court has offered a peek down the rabbit hole of capricious irrationality that underlies George W. Bush’s “war on terror.”
The rabbit-hole analogy follows a three-judge panel comparing the Bush administration’s assertion of “evidence” to the writings of Lewis Carroll, the author of Alice’s Adventures in Wonderland and Through the Looking Glass.
The judges from the U.S. Court of Appeal in the District of Columbia cited one of Carroll’s poems, “The Hunting of the Snark,” in which a character declares, “I have said it thrice; What I tell you three times is true.”
In this case, the three-time repetition of unsupported evidence was the basis for one of Bush’s military tribunals to label Huzaifa Parhat an “enemy combatant” – and lock him up for six years at the U.S. naval base in Guantanamo Bay, Cuba.
Although the evidence behind the claims was not spelled out in any of the documents, Bush's lawyers asserted that the fact that the allegations appeared in three separate government documents was proof of reliability.
In their sharply worded ruling, the judges likened the administration's logic to the writing of Carroll, the 19th Century English author whose stories famously pilloried up-is-down reasoning.
Parhat’s journey to Guantanamo Bay, via the Bush administration’s looking glass, was a curious one. An ethnic Uighur, Parhat was part of a community of Muslims in western China who have resisted Chinese domination, including the central government’s strict policies against large families.
Having fled his home, Parhat moved to a camp in Afghanistan that was dominated by an Uighur resistance group known as the East Turkistan Islamic Movement. According to his testimony, he received rudimentary military training and helped guard the camp.
However, when the United States invaded Afghanistan after 9/11 to root out al-Qaeda terrorists and their Taliban hosts, American planes also bombed the Uighur camp, driving Parhat and other survivors into Pakistan where some, including Parhat, were eventually turned over to the United States.
Sent to Guantanamo, Parhat was designated an “enemy combatant,” even though – as the judges wrote – “it is undisputed that he is not a member of al-Qaida or the Taliban, and that he has never participated in any hostile action against the United States or its allies.
“The Tribunal’s determination that Parhat is an enemy combatant is based on its finding that he is ‘affiliated’ with a Uighur independence group, and the further finding that the group was ‘associated’ with al-Qaida and the Taliban.
“The Tribunal’s findings regarding the Uighur group rest, in key respects, on statements in classified State and Defense Department documents that provide no information regarding the sources of the reporting upon which the statements are based, and otherwise lack sufficient indicia of the statements’ reliability.
“Parhat contends, with support of his own, that the Chinese government is the source of several of the key statements.”
In other words, the evidence that led to Parhat’s imprisonment for six years appears to have been a daisy chain of vague associations, including some information possibly inserted by the Chinese government.
Parhat and the 16 other Uighurs at Guantanamo insist they are not enemies of the United States or its coalition partners, that their only enemy is the Chinese government. The three-judge panel ruled that there was no evidence to contradict Parhat’s testimony on this point.
Overturning Parhat’s “enemy combatant” designation is the latest blow to the Bush administration’s fearful claims about the Guantanamo detainees, whom Defense Secretary Donald Rumsfeld once called “the worst of the worst.”
It also has been standard fare for the Bush administration to disparage Americans, who favor respecting the basic human rights of detainees at Guantanamo, as soft-headed and reflecting a foolish “pre-9/11 mindset.”
Along those lines, Sen. John McCain, the presumptive Republican presidential nominee, lashed out at a 5-4 ruling by the U.S. Supreme Court on June 12 recognizing the habeas corpus rights of Guantanamo detainees to challenge their arbitrary imprisonment.
McCain called the ruling “one of the worst decisions in history,” reminding voters of his vow to nominate more justices like George W. Bush’s appointees, John Roberts and Samuel Alito, who were part of the four-justice minority.
One of the striking elements of the Parhat ruling, which was released on June 30, was that it was backed by two Republican appointees, including Judge David Sentelle, who was put on the bench by President Ronald Reagan and is considered one of the federal courts’ most right-wing jurists.
In the early 1990s, Sentelle voted to overturn the convictions of Iran-Contra convicts Oliver North and John Poindexter. In 1992, though considered then a junior judge, Sentelle was tapped by then-Chief Justice William Rehnquist to replace a moderate Republican senior judge in selecting special prosecutors.
Sentelle made sure that partisan Republicans, such as Kenneth Starr, were assigned to investigate alleged wrongdoing by the Clinton administration, contributing to the "scandals" that swirled around Bill Clinton's presidency and ended with his impeachment by a Republican-controlled House in 1998 (although Clinton was acquitted by the Senate in 1999).
Many conservatives considered Sentelle’s choice of right-wing special prosecutors as well-deserved payback for the investigators who examined the Watergate and Iran-Contra scandals. [For details, see Robert Parry’s Secrecy & Privilege.]
That Sentelle would join a sharply worded opinion chastising the Bush administration for its Through the Looking Glass logic was eyebrow-raising in Washington’s legal circles, a sign of how far President Bush has gone in stretching legal logic.
The Appeals Court ruling did stop short of ordering Parhat’s immediate release. Instead it gave the government a choice of releasing him, transferring him to a country other than China, or conducting a prompt new hearing on his “enemy combatant” status.
Parhat has worried about the interminable delays in his case – and even has freed his wife to re-marry – but the court warned the Bush administration against repeating the status review process simply as a stalling tactic.
Granting the administration another chance to establish Parhat’s “enemy combatant” status “is not to suggest ... that we will countenance the ‘endless do-overs’ that Parhat fears,” the court wrote.
The broader point from the Parhat case is that it is further evidence that – over the past six-plus years – the Bush administration has played on the fears and biases of Americans to justify the indefinite incarceration of Muslims despite a lack of serious evidence against them.
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This story was published on July 2, 2008.