We Are Through the Looking Glass: Guantánamo as Alice in Wonderland

Some of us have known for years that the U.S. 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 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 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 U.S.-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 U.S. 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 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 towards 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 Court of Appeals in Washington -- noticeably, two Republicans and a Democrat -- "held invalid a decision of a Combatant Status Review Tribunal" that Hufaiza 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," and "directed the government to release or transfer" him (or to hold a new tribunal "consistent with the Court's opinion").