Guantánamo as Alice in Wonderland

1.7.08

Alice in WonderlandSome 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 last 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 Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed, and see here for my definitive Guantánamo prisoner list, published in March 2009.

As published on Antiwar.com, CounterPunch, the Huffington Post and AlterNet.

For a sequence of articles dealing with the Uighurs in Guantánamo, see: The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), Guantanamo’s refugees (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.

For a sequence of articles dealing with the Guantánamo habeas cases, see: Guantánamo and the Supreme Court: the most important habeas corpus case in modern history and Guantánamo and the Supreme Court: What Happened? (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), What’s Happening with the Guantánamo cases? (July 2008), Government Says Six Years Is Not Long Enough To Prepare Evidence (September 2008), Guilt By Torture: Binyam Mohamed’s Transatlantic Quest for Justice (November 2008), After 7 Years, Judge Orders Release of Guantánamo Kidnap Victims (November 2008), Is Robert Gates Guilty of Perjury in Guantánamo Torture Case? (December 2008), The Top Ten Judges of 2008 (January 2009), No End in Sight for the “Enemy Combatants” of Guantánamo (January 2009), Judge Orders Release of Guantánamo’s Forgotten Child (January 2009), How Cooking For The Taliban Gets You Life In Guantánamo (January 2009), Lies, Damned Lies and Statistics (February 2009), The Nobodies Formerly Known As Enemy Combatants (March 2009), Farce at Guantánamo, as cleared prisoner’s habeas petition is denied (April 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Judge Condemns “Mosaic” Of Guantánamo Intelligence, And Unreliable Witnesses (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Free The Guantánamo Uighurs! (May 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Obama’s Failure To Deliver Justice To The Last Tajik In Guantánamo (July 2009), Obama And The Deadline For Closing Guantánamo: It’s Worse Than You Think (July 2009), How Judge Huvelle Humiliated The Government In Guantánamo Case (Mohamed Jawad, July 2009), As Judge Orders Release Of Tortured Guantánamo Prisoner, Government Refuses To Concede Defeat (Mohamed Jawad, July 2009), Guantánamo As Hotel California: You Can Check Out Any Time You Like, But You Can Never Leave (August 2009), Judge Orders Release From Guantánamo Of Kuwaiti Charity Worker (August 2009). Also see: Justice extends to Bagram, Guantánamo’s Dark Mirror (April 2009), Judge Rules That Afghan “Rendered” To Bagram In 2002 Has No Rights (July 2009).

16 Responses

  1. True Blue Liberal » Guantánamo as Alice in Wonderland says...

    [...] Read more Wonderland [...]

  2. exotraxx division says...

    [...] as has been demonstrated in the only two cases that have been reviewed by a US court: those of Huzaifa Parhat, cleared of being an “enemy combatant” in June, and five Bosnian Algerians, cleared of the [...]

  3. freedetainees.org » Will Europe Take the Cleared Guantánamo Prisoners? says...

    [...] June, when an appeals court was finally allowed to review the case against one of the men, Huzaifa Parhat, the judges demolished the government’s allegations, ruling that Parhat’s status as an “enemy [...]

  4. Guantánamo: A Real Uyghur Slams Newt Gingrich’s Racist Stupidity by Andy Worthington « Dandelion Salad says...

    [...] Uyghurs (also known as Uighurs), 17 men from China’s Xinjiang province, who, after a stunning court victory last June, are the only prisoners in Guantánamo to have persuaded the Bush administration to drop [...]

  5. Free The Guantánamo Uighurs! by Andy Worthington « Dandelion Salad says...

    [...] that the Uighurs were “enemy combatants.” This occurred after the government had suffering a withering court defeat in June, when a group of admirable judges compared its attempts to marshal evidence to a nonsense [...]

  6. Uighur Protest In Guantánamo: Photos by Andy Worthington « Dandelion Salad says...

    [...] prison, despite having convinced the Bush administration (through a humiliating court defeat) to drop its claims that they were “enemy combatants,” and despite the fact that District Court Judge Ricardo [...]

  7. From Guantánamo To The South Pacific: Is This A Joke? by Andy Worthington « Dandelion Salad says...

    [...] because the government had been persuaded to drop all its charges against the Uighurs (after the most humiliating court defeat, last June); secondly, because they cannot be returned to China, where they face torture or worse: [...]

  8. A Plea To Barack Obama From The Guantánamo Uighurs by Andy Worthington « Dandelion Salad says...

    [...] guaranteed habeas corpus rights to the Guantánamo prisoners in June 2008, one of these men won a stunning court victory, and in the months that followed the government gave up all pretense that any of the men were [...]

  9. Bagram Isn’t The New Guantánamo, It’s The Old Guantánamo « freedetainees.org says...

    [...] (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July [...]

  10. Justice At Last? Guantánamo Uighurs Ask Supreme Court For Release Into US by Andy Worthington « Dandelion Salad says...

    [...] of the men had secured a resounding court victory last June, when appeals court judges ruled that the government had failed to prove that he was an [...]

  11. Six Uighurs Go To Palau; Seven Remain In Guantánamo by Andy Worthington « Dandelion Salad says...

    [...] did so because the government had failed to contest the Uighurs’ habeas corpus petition (after a devastating court defeat in June 2008), because they could not be returned to China, where they were at risk of [...]

  12. Uighur prisoner asks what is the difference between the US constitution and the Communist constitution? by Andy Worthington « Dandelion Salad says...

    [...] have the right to examine one of their cases, concluding that the government’s supposed evidence resembled a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland. I also explained how, last October, the [...]

  13. “Model Prisoner” at Guantánamo, Tortured in the “Dark Prison,” Loses Habeas Corpus Petition « freedetainees.org says...

    [...] (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? (July [...]

  14. The Black Hole of Guantanamo : STATESMAN SENTINEL says...

    [...] were seized in December 2001, that their only enemy was the Chinese government, and having suffered a humiliating court defeat shortly after the Supreme Court ruling last June. A judge also dismissed the government’s [...]

  15. More Dark Truths From Guantanamo as Five Innocent Men Released « freedetainees.org says...

    [...] to conveniently tie the Guantánamo Uighurs to this group came unstuck in June 2008, when a US court derided the government’s supposed evidence as being akin to a nonsense poem [...]

  16. Guantanamo and Habeas Corpus : STATESMAN SENTINEL says...

    [...] (both December 2007), The Supreme Court’s Guantánamo ruling: what does it mean? (June 2008), Guantánamo as Alice in Wonderland (Uighurs’ first court victory, June 2008), What’s Happening with the Guantánamo cases? [...]

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