From Andy Worthington Author and Journalist
By Andy Worthington

In the history of legal challenges to the Bush administration’s assertion that it can hold “War on Terror” prisoners indefinitely without charge or trial, Parhat v. Gates has just joined a trio of Supreme Court verdicts — Rasul v. Bush (2004), Hamdan v. Rumsfeld (2006) and Boumediene v. Bush (twelve days ago) — as significant challenges to executive overreach.

In a one-page ruling in the case of Hufaiza Parhat, a Uighur (a Muslim from the oppressed Xinjiang province of China), the US Court of Appeals in Washington “held invalid a decision of a Combatant Status Review Tribunal that petitioner Hufaiza Parhat is an enemy combatant.” The court also “directed the government to release or transfer Parhat” (or, more worryingly, “to hold a new Tribunal consistent with the Court’s opinion”), and also “stated that its disposition was without prejudice to Parhat’s right to seek release immediately through a writ of habeas corpus in the district court, pursuant to the Supreme Court’s decision in Boumediene v. Bush.”

The verdict has been a long time coming. When Guantánamo opened in January 2002, the prisoners, who had been designated as “enemy combatants” on capture, were deprived of all rights until the Supreme Court ruled in Rasul that they had statutory habeas corpus rights. This ruling paved the way for the prisoners to meet with lawyers to build habeas cases, but in the meantime the administration subjected the prisoners to administrative reviews — the Combatant Status Review Tribunals (CSRTs) — which prevented them from having legal representation, relied upon secret evidence that could have been obtained through torture or coercion, and, as former insider Lt. Col. Stephen Abraham explained last year, were, in complete contrast to the purpose of Rasul, essentially designed to rubber-stamp their prior designation as “enemy combatants” without rights.

In a further blow to Rasul, Congress was persuaded to pass the Detainee Treatment Act (DTA) in 2005, which removed the prisoners’ habeas rights, and limited any review of their cases to the Circuit Courts (rather than the Supreme Court), apparently preventing any independent fact-finding to challenge the substance of the administration’s allegations, and mandating the judges to rule only on whether or not the CSRTs had followed their own rules, and whether or not those rules were valid. Since last summer, when the Supreme Court agreed to hear Boumediene, the DTA cases have been on hold, as the lower court judges awaited the Supreme Court’s verdict.

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