Ruth Marcus - Washington Post (July 9, 2008)

Free This Detainee

By Ruth Marcus
Wednesday, July 9, 2008; A15

There's someone I'd like to introduce to President Bush. Also to Chief Justice John Roberts and Sen. John McCain. His name is Huzaifa Parhat, and that get-together might be tricky to arrange. Parhat is also known as ISN (Internment Serial Number) 320 at Guantanamo Bay.

Parhat is Uighur, a Muslim ethnic minority group from western China. He fled China for Afghanistan, and, when the camp he was living in there was bombed by U.S. forces, went to Pakistan. For a bounty, Parhat was turned over to U.S. authorities and shipped to Guantanamo.

He has been held as an enemy combatant for more than six years -- even though the government concedes he was never a member of the Taliban or al-Qaeda and never took part in any hostilities against the United States.

Indeed, Parhat's detention is based on evidence so flimsy that a federal appeals court here told the government it had to free Parhat or come up with something more.

The ruling was remarkable because its author, Clinton appointee Merrick Garland, was joined by two conservatives, Reagan appointee David Sentelle and George W. Bush appointee Thomas Griffith. It was remarkable, too, as the product of a system stacked against alleged enemy combatants -- so stacked that the Supreme Court recently declared it an inadequate substitute for full court review.

Detainees cannot have lawyers for the Combatant Status Review Tribunals that decide whether they are enemy combatants. They can be held on the basis of hearsay evidence or classified material they never see. The government's evidence is presumed valid. Detainees may call witnesses, but only those who are "reasonably available." Few are.

The appeals court review -- Parhat's case was the first to reach this stage -- is similarly tilted. It cannot consider evidence favorable to detainees found after the tribunal has ruled. It is required to presume that the government's evidence is accurate. It must uphold the determination if it is supported by a mere "preponderance" of the evidence.

The government's case against Parhat amounted to wisp piled on wisp: that he was "affiliated with forces associated with" al-Qaeda and the Taliban. The Afghan camp where Parhat lived and received Kalashnikov rifle training was run by another Uighur who was a leader of the East Turkestan Islamic Movement (ETIM); ETIM has links to al-Qaeda.

Much of the material supposedly proving this is classified, but the appeals court dismissed it as fuzzy, duplicative and poorly sourced. It mocked the evidence as worthy of Lewis Carroll's "The Hunting of the Snark": "I have said it thrice: What I tell you three times is true." Carroll notwithstanding, the court said that "the fact that the government has 'said it thrice' does not make an allegation true."

It is possible, I suppose, to understand the Parhat case as a vindication of the rule of law. The review process worked, eventually. Cold comfort to Parhat, who has sent word to his wife that she should consider him dead and remarry. His lawyer, Sabin Willett, told me that Parhat is convinced he will never be allowed to leave Guantanamo.

Indeed, even as the government insists he is an enemy combatant, it has also, oddly, cleared him for release. But, like the other Uighurs at Guantanamo, Parhat has no place to go. Returning to China is not an option; no other country will take him.

And so, this is what I would say in the meeting that will never happen:

Sen. McCain, you called the Supreme Court's recent Guantanamo ruling, which gives Parhat and other detainees the chance to make their case directly to a federal judge, "one of the worst decisions in the history of this country." As someone who spent so long in captivity, could you tell Parhat why it would have been so terrible to let a court hear his case -- years ago?

Mr. Chief Justice, in that decision, you termed the rules under which Parhat was held "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants." True enough. Please explain to Parhat how those protections were adequate.

And Mr. President, Parhat once imagined that America would help the Uighurs, a group your own State Department says has been subjected to "official repression" by the Chinese government. Could you tell him that America has treated him fairly?

If not -- and it's hard to see how you could -- please find a way, before you leave office, to let him go.