Huzaifa Parhat has been a prisoner of the United States since October 2001. Since 2002 he has been held at Guantanamo Bay as an enemy combatant. However,
Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that “planned, authorized, committed, or aided” those attacks. In particular, it is undisputed that he is not a member of al Qaeda or of the Taliban. Indeed, the Pentagon’s Combatant Status Review Tribunal (CSRT) did not even find him to be “an individual who was part of or supporting Taliban or al Qaida forces.” And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).
So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced “weegur”). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to “oppression and torture” by the Chinese Government, including “harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas.” In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone — not the United States — as his enemy.
In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and seventeen other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.
Why did the government claim they could hold Parhat, someone who even they acknowledge had no beef with the United States, indefinitely without charge in the terrible conditions of Guantanamo Bay? And not just Parhat, but 16 other Uighur Muslims from China who were captured in the same circumstances.
According to the Bush Administration:
1. The Taliban aided al Qaeda in committing the terrorist attacks of September 11th, and/or “harbored” al Qaeda.
2. Military force against the Taliban would “prevent future acts of international terrorism against the United States” by al Qaeda.
3. Thus, the AUMF authorizes “necessary and appropriate military force” against the Taliban.
4. A longstanding incident of the use of such force is the authority to indefinitely detain those who fight on behalf of, and under the command of, the entity (the Taliban and al Qaeda) against whom the use military force has been authorized.
[Up to this point, the argument is fairly unobjectionable, and supported by the Hamdi decision.]
5. In the AUMF, the government argues, Congress authorized force against not only the Taliban and al Qaeda, but also any entity that, subsequent to September 2001, has become so closely associated with al Qaeda or the Taliban that it is effectively “part of the same organization,” and thus covered by the AUMF (even if it would not have been so covered when the AUMF was enacted)—or, at the very least, such a subsequently affiliated organization is covered by the AUMF if it is “effectively part of” al Qaeda or the Taliban and the entity has also “engaged in hostilities against the United States and its coalition partners.” (The DOD definition requires both showings.)
6. A Uighur independence group known as the East Turkistan Islamic Movement (ETIM) is “associated” with the Taliban in the sense that it is “effectively part of” the Taliban.
7. Moreover, the ETIM is engaged in hostilities against the United States and its coalition partners.
8. Therefore, the AUMF authorizes the indefinite detention of anyone who is part of the ETIM, whether or not that person has any connections directly to the Taliban or al Qaeda, and whether or not that person has ever engaged in, planned or supported hostilities against the United States or its coalition partners.
9. Indeed, the AUMF authorizes the indefinite detention of anyone who has merely “supported” the ETIM, even if that person has not joined (and is not otherwise “part of”) the ETIM, has no connections directly to the Taliban or al Qaeda, and has never engaged in, planned or supported hostilities against the United States or its coalition partners.
10. Although there was no evidence that Parhat joined, became a member of, or in any direct sense “supported” the ETIM, he did seek and receive training on the use of a rifle and pistol at the Uighur camp in Afghanistan, which he intended to use solely for resistance against the Chinese government (not a part of the U.S. coalition).
11. One leader of that Uighur camp was a man named Hassan Maksum.
12. According to the government, Maksum is also a “leader” of ETIM, although there is no evidence that Parhat knew anything about any al Qaeda or Taliban association with Uighur camps. (It’s not clear from the unredacted portions of the opinion whether there was any evidence that Parhat knew Maksum was affiliated with ETIM.)
13. Ergo, because Parhat received training at a camp led by an alleged ETIM leader, Parhat “supported” ETIM.
14. Accordingly, the military can indefinitely detain Parhat (and similarly situated Uighur detainees) at Guantanamo.
More astoundingly, this is what the court that just ruled that Parhat isn’t an enemy combatant had this to say about the “evidence” the Administration cited in its attempts to justify holding Parhat:
First, the government suggests that several of the assertions in the intelligence documents are reliable because they are made in at least three different documents. We are not persuaded. Lewis Carroll notwithstanding, the fact that the government has “said it thrice” does not make an allegation true. See LEWIS CARROLL, THE HUNTING OF THE SNARK 3 (1876) (“I have said it thrice: What I tell you three times is true.”). In fact, we have no basis for concluding that there are independent sources for the documents’ thrice-made assertions.
Second, the government insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case . This comes perilously close to suggesting that whatever the government says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the departments regard the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are “reported” or “said” or “suspected” to have occurred suggests at least some skepticism. Nor do we know whether the departments rely on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.
Is this still the United States?