FEIN: Suspect excesses?

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By Bruce Fein

COMMENTARY:

President Bush's post-Sept. 11, 2001, excesses are alarmingly reminiscent of Joseph Stalin and Mao Tse-tung. On July 2, 2008, the New York Times reported that interrogation methods employed by the military in 2002 at Guantanamo Bay and by the Central Intelligence Agency were copied from Chinese communist coercive techniques used during the Korean War to extract false confessions from American prisoners, for example, complicity in germ warfare or sister abominations.

The techniques included prolonged standing in extreme cold (described as one form of torture); semi-starvation; exploitation of wounds; and, filthy, infested surroundings. Mr. Bush aped Chairman Mao's tactics fashioned to obtain lies. And imitation is the sincerest form of flattery. In Mr. Bush's "Alice in Wonderland" defense, in contrast to Mao, he may have told the CIA to believe only the false confessions are true and to disregard the remainder.

Mr. Bush's indefinite detentions of suspected enemy combatants without accusation or trial at Guantanamo are closer to Stalin's gulag than Mao's Cultural Revolution, though the question is without doubt. Dispositive evidence is Uighur resistance fighter Huzaifa Parhat.

Uighurs inhabit the far-western Chinese province of Xinjiang, which they call East Turkistan. The U.S. State Department's 2007 country human-rights report found that, "Since 2001 [Chinese] authorities have increased repression in Xinjiang, targeting in particular the region's ethnic Uighur population." Parhat fled China in May 2001 to escape "oppression and torture imposed on [UIghur] people by the Chinese government," for example, "harassment, forced abortions for more than two children, high taxes, the taking of land, and the banishing of educated people to remote areas."

He arrived at a Uighur camp in Afghanistan in June 2001. In mid-October 2001, the camp was destroyed by U.S. aerial strikes. Parkhat and 17 other unarmed Uighur cohorts crossed into Pakistan, where officials delivered them to the U.S. military. In June 2002, Parhat was transferred to Guantanamo Bay, where he has been detained more than six years.

Uncontradicted testimony demonstrated that he was neither a member of al Qaeda nor of Taliban. He has never participated in any hostile action against the United States or its allies. He journeyed to Afghanistan solely to join the resistance to China, and regarded China alone - not the United States, as his enemy. Not a crumb of evidence even insinuate Parhat was dangerous to the national security of the United States. Indeed, he would be a national security asset if released in his opposition to China's aggressive police state.

President Bush's Combatant Status Review Tribunal (CSRT), nevertheless, found that Parhat was an enemy combatant subject to indefinite detention. Its reasons were a chapter from Franz Kafka's "The Trial." The CSRT considered as highly suspect Parhat's training on a rifle and pistol at a camp operated by a leader of the East Turkistan Islamic Movement (ETIM), though neither weapon had ever been used against the United States.

That fringe nexus, according to the CSRT, made Parhat an "affiliate" of the ETIM, which is like saying that training to catch fly balls with Willie Mays makes you an "affiliate" of the San Francisco Giants. The CSRT also maintained ETIM was "associated" with al Qaeda or Taliban because its training camp had been provided by the Afghan government - albeit to train to fight Chinese ethnic or religious persecution. That logic would make a person an al Qaeda "associate" by accepting its food or drink in anticipation of an attack on the Chinese Red Army. In addition, the government's thrice repeating that ETIM might be planning to attack the United States in the next decade made it true based on Lewis Caroll's precedent in "The Hunting of the Snark" ("I have said it thrice: What I tell you three times is true").

In sum, the CSRT decreed Parhat was an enemy combatant because he was trained to fight Chinese government oppression by an ETIM leader whose organization might become hostile to the United States and may have used a training camp provided by Taliban.

If President Bush had his way, Parhat would remain imprisoned indefinitely at Guantanamo Bay for emulating the American Minutemen at Concord and Lexington. He would be denied access to the Great Writ of habeas corpus to challenge the legality of his detention. But the Supreme Court repudiated the President in Boumediene v. Bush (June 12, 2008), offering Parhat an assured habeas corpus avenue to freedom. The CSRT's outlandish enemy combatant finding has already been voided by the United States Court of Appeals for the District of Columbia Circuit in Parhat v. Gates (June 30, 2008).

The Declaration of Independence proclaims "all men are created equal" irrespective of race, religion, ethnicity or otherwise; and, that at all times and in all places they are endowed with unalienable rights to life, liberty, and the pursuit of happiness.

These self-evident truths find their highest expression in procedures that protect the likes of Huzaifa Parhat who might otherwise disappear without a murmur of protest. The United States is neglecting that gospel at its peril.

Bruce Fein is a constitutional lawyer at Bruce Fein & Associates and chairman of the American Freedom Agenda.