Some of us have known for years that the U.S. government’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 U.S. 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 onward, took place close to the time and place of capture, so that witnesses could reasonably be called. These enabled the U.S. 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 U.S.-backed Afghan government). In addition, the prisoners were refused the right to legal representation. They were also 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 U.S. military as "terrorists," and 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 [.pdf] 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 a statement made last June by Lt. Col. Stephen Abraham, a veteran of U.S. 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 toward rubber-stamping the detainees’ prior designation as "enemy combatants."
Until now, however, the tribunals’ failings had never been deconstructed by a U.S. 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 last week, were explosive enough. In a one-page ruling, the judges in the district court 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 U.S., was an enemy combatant." The ruling "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 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 U.S. forces, forcing them to flee to Pakistan, where they were sold to the U.S. 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!"
