Keeping him safe by keeping him in solitary

[joshwriting]

http://thinkprogress.org/2008/06/25/parhat-combatant-solitary/

So, the SCOTUS ruled. Now, these folks get to contest the decision to keep them locked up in Guantanamo, right?

Well...

Gitmo Detainee’s Lawyer ‘Not Allowed To Tell Him’ He’s No Longer An ‘Enemy Combatant’»

Nearly two weeks after the U.S. Supreme Court ruled that detainees held at Guantánamo Bay have the right to habeas corpus and can thus challenge their detention in civilian courts, a U.S. Court of Appeals dealt another blow to the Bush administration’s detention policy.

The appeals court ruled that the Pentagon improperly designated Huzaifa Parhat, an ethnic Uighur Chinese national, an “enemy combatant” after being swept up by the U.S. military in Afghanistan in 2001 and then sent to Guantánamo Bay, where he has been held since.

Despite the ruling, Parhat has yet to see any of its benefits. In fact, he doesn’t even know about it. Parhat’s lawyer told CBC radio’s As It Happens last night that Parhat is currently being held in solitary confinement and “has no idea” the appeals court ruled in his favor because, he added, “I’m not allowed to tell him”:

DEREK STOFFEL, CBC HOST: Mr. Willett, what’s your client’s reaction to this ruling?

SABIN WILLETT (PARHAT’S LAWYER): Boy what a great question that is because my client doesn’t know about this ruling because I’m not allowed to tell him. […] He’s sitting in solitary confinement today. He has no idea what’s happened as far as I know.

There is more to the story, and both the video and a transcript of the interview.

I am not surprised. I am, however, appalled.

Comments

[camlina.livejournal.com]

To be fair, they can't have ruled more than a day or two ago!

[joshwriting.livejournal.com]

"Nearly two weeks after the U.S. Supreme Court ruled..."

[camlina.livejournal.com]

The Supreme Court ruled two weeks ago that detainees had the right to a trial. The trials of each individual detainee have only been happening since then, and such things take time - 10 days is actually an extraordinarily short time. The wording of the snippet you posted further implies that the verdict in this particular case has only just come in.

[joshwriting.livejournal.com]

Sorry, yes. I misunderstood initially that this trial was related to the recent SCOTUS decision.

But, I think, so did you.

The decision in this case came on Friday, the 20th - it was unrelated to the recent SCOTUS decision, other than as part of the string of decisions against how this administration has handled things. This trial resulted from an earlier SCOTUS decision, not the current one.

“The court directed the government to release or to transfer Parhat, or to expeditiously hold a new tribunal,” the notice said. It said the court had found “invalid” the military’s decision that he was an enemy combatant.

The Justice Department said it was reviewing the decision.

The decision came down on Friday. The lawyers have not been permitted to talk to their client.

I'm not talking about release. I understand that the DoJ may appeal, though there seems to be no evidence that this man has done anything against the United States.

I am talking about a system that imprisons a person for more than 6 years without a charge, and when the courts determine that he is being held inappropriately, denies his lawyers permission to even talk to him. "Send a letter," is what they have been told - a process that takes three weeks, according to the article.

[camlina.livejournal.com]

It is a bit irking in principle, yes... but, honestly, it's been 6 days since the decision. Given that he's been imprisoned for 6 *years*, and that this case will likely be appealed (and thus require his continued detention for the next little while), the 3 weeks required for a letter to arrive does not strike me as a really huge deal.

[joshwriting.livejournal.com]

I guess we have different reactions to this sort of thing.

The right to talk to one's lawyer is considered pretty basic. Denying that for no reason other than 'policy' is pure pettiness.

And unjust detention for ONE day is offensive. Somehow the argument of "Well, we have mistreated you for 6 years already, what's another few days?" doesn't strike me as even remotely okay.

On top of that, we have a legal system that is filled with time deadlines. You must appeal within X days, file within X years, etc. Untimely filings can and have been used to deny appeals of all sorts throughout our courts and government.

You can bet that if the military were told that they were being denied something like this, they would be livid.

[camlina.livejournal.com]

It's been *six days*. I doubt the deadline to appeal has passed already. Should it do so without the military filing an appeal and without a change in the detainee's status, *then* outrage would be justified. But for the moment, I'm unconvinced that there's serious wrong-doing going on here. Pending the resolution of the appeal process, they have every right to keep him in detention.

[joshwriting.livejournal.com]

I'm not challenging the right to have him detained.

It's been 6 days. Isn't that long enough to set up a phone call? Evidently not.

There is a pattern of denial of rights and general mistreatment where rights are not involved - not just of this prisoner but of people captured overseas by the U.S. military throughout this period of time. From kidnapping off the streets to torture to release to foreign countries without telling lawyers...

It is part of a whole - and in this case, it is the denial of contact between attorney and client, for no purpose. There is no good reason to deny that telephone call, and every good reason to permit it.

Perhaps if this administration did not have the track record it has one might view it as happenstance, as an unfortunate bit of bureaucracy. It is, instead, systemic routine.

[camlina.livejournal.com]

Erm, I'm sure they're not keeping him in solitary confinement just for personal kicks. Presumably, it's a tactic to encourage him to talk.

The Bush administration has done many egregious things during its tenure. But I don't view this particular instance as incredibly appalling or unjustifiable, either by itself or in conjunction with other things. If, as noted above, they keep him there indefinitely without appealing or changing his status, then yes, at that point I will become outraged. But as it currently stands? No.

[joshwriting.livejournal.com]

See Baronet's response below.

In addition to what he said, apparently the Justice Department has already granted that the prisoner had never attacked the U.S. nor had any intention of so doing.

[camlina.livejournal.com]

>the Justice Department has already granted that the prisoner had never attacked the U.S. nor had any intention of so doing.<

Well, yes, by definition - otherwise he would have fit the "enemy combatant" classification.

[joshwriting.livejournal.com]

No, not "the Appeals Court ruled," but "the Justice Department granted that..."

The prosecution says he had done nothing to harm the U.S. and had no intention of doing anything. In other words, questioning him, while it may well be going on, doesn't exactly seem like a worthwhile endeavor.

I guess the thing that astonishes me is your faith that the actions of interrogators and wardens in these military prisons are based on reason.

[camlina.livejournal.com]

You really shouldn't be. I'm never one to believe in conspiracy theories.

[joshwriting.livejournal.com]

This is not a matter of "conspiracy theory," it's a matter of track record illustrated by investigation.

I am not suggesting that there is a plot against this one fellow or even against all of the remaining detainees of his eth. I am pointing out that the pattern of mistreatment of prisoners at Guantanamo, Abu Ghraib, in Afghanistan, and in "secret locations," by the military, by the CIA, and by "private contractors" whom the U.S. hired to conduct interrogations, has been well established.

[camlina.livejournal.com]

You once suggested to me that, based on Bush's track record and (at the time current) actions, it was completely plausible and credible to think that Bush was (is) planning to invade US states that don't vote Republican in the next election. I thought you were off your rocker then, too.

The Bush administration has without question mistreated detainees. This particular detainee may even have been mistreated. But I don't think that this particular action is a good example of mistreatment.

[joshwriting.livejournal.com]

That was not what I suggested.

I suggested that I could imagine his inventing an excuse to postpone the election and possibly to declare martial law. Not the same thing.

"This particular action," of putting/keeping this prisoner in solitary is not currently [i]any[/i] example of mistreatment of the same sort to which I referred - but the [i]prior[/i] treatment of prisoners at this and other places gives ample cause to be skeptical of the motivations of his solitary confinement.

"So what if they have mistreated many others. There is no reason to suspect that this [i]particular[/i] treatment is not soundly based!"

That is what I am understanding your position to be.

Mine is "Given how many other mistreatments and unreasonable decisions have been made in this and related settings, I believe I have reason to wonder if their motivations for this treatment are sound."

I am not insisting that they are mistreating him (beyond denying his lawyers the ability to talk to him), nor even presuming that they do not have good reason for it.

I am insisting that your presumption that there is good reason for him to be in solitary is baseless, based on the track record.

[joshwriting.livejournal.com]

I wish that the standards for [ and < were consistent.

Ah well.

[camlina.livejournal.com]

Um, no, you really did claim that at one point. You were rather upset.

>So what if they have mistreated many others. There is no reason to suspect that this *particular* treatment is not soundly based!"
That is what I am understanding your position to be.<

Past guilt is not proof of current guilt. The fact that someone has previously been convicted of murder does not mean that he guilty every other time he's accused of murder - let alone someone who has been previously convicted of murder and is currently accused of rape. So sure, you look at the evidence, same as you would with any previously-unconvicted, currently-accused person. And, having read the evidence you've provided, I do not see anything to suggest egregious wrong-doing in this particular case.

[joshwriting.livejournal.com]

No, I really didn't make that claim. Got the conversation? I was upset - but that was what got me to the possibility of martial law and postponement of election.

"Past guilt is not proof of current guilt."

And I have not said it is!

I have said "it is cause to be suspicious."

You created the analogy of the murderer. But you err in your analogy in a couple of ways:

1) It is true that the person who has been convicted of murder once is not guilty of every other murder. Since I have not asserted that Parhat is being tortured or even confined in solitary for inappropriate reasons, that comparison has no parallel.

2) You suggest that one looks at the evidence the same as one would with any other "previously-unconvicted, currently-accused person." That is not the practice. A person with a prior record is looked at with more suspicion by investigators than folks with no criminal record. Those with a lengthy criminal history are looked at more closely still.

They are viewed "with suspicion."

You keep arguing that I have no cause to believe they are doing him harm.

I keep telling you that I am not claiming that.

I have presented no evidence that they are mistreating him in his confinement, nor tried to. I have presented evidence that the organization that has put him in solitary have a track record of poor decision-making with regard to its prisoners - and that their poor track record takes away the presumption that they are acting wisely, even if it does not give the presumption that they are acting unwisely.

You presume they are acting reasonably.

I believe there is no cause to presume that they are acting reasonably, and have granted several times that there is no cause to presume they are acting unreasonably, either.

[camlina.livejournal.com]

...If there is no cause to presume they are acting unreasonably, then why are you upset?

[joshwriting.livejournal.com]

1) Preventing his lawyers from contacting him is unreasonable, even if the motivation for putting him in solitary were reasonable (bad behavior on his part) and there is no other form of mistreatment occurring.

2) You asserted the presumption that they had good reason to have him in solitary. I challenged it, as there is no cause to believe they have good reason.

3) I am upset that you:
a) argue repeatedly against things I have not said - like "Past guilt is not proof of current guilt."

and b) raise unrelated issues to muddy the waters - like the "conspiracy theory" crap.

[camlina.livejournal.com]

1) I think it is a gray area. If it continues for a significantly longer period of time, then it will be appalling and a cause for upset - but not before.

2) I disagree. Given no likely motivation to do so without cause, I presume that, at the very least, they think they have good reason to do so, and neither you nor I has anywhere near enough knowledge to question that.

3) a) To me, your argument that because the military at has misbehaved at Guantanamo and elsewhere in the past, one should presume they are doing so again, boils down to much the same thing. And your claim above not to be presuming the military is misbehaving in this instance is crap, because if you eliminate that assumption, there is absolutely nothing to be upset about here.

b) Seeing appalling misbehavior here is, to me, akin to conspiracy theorizing - assuming that the military is acting the way it is out of some ulterior motive rather than that it is simply trying to do its job effectively and with a good-faith effort to follow the rules. Certainly there are other instances where it has not made a good-faith effort, but by and large that's not generally the case.

[joshwriting.livejournal.com]

Certainly there are other instances where it has not made a good-faith effort

How many instances would it take for you to cease assuming good-faith and grant that you have no basis to presume their actions are reasonable?

by and large that's not generally the case

By and large, when it comes to the Guantanamo prisoners, the U.S. government has not acted with good faith. Repeatedly, it has violated their rights, it has tortured them, it has created systems that deny the prisoners representation, it has subjected them to hearings in which they did not know the charges against them, it has made unsubstantiated allegations against them and used those as the basis for decisions.

This is not my allegations of conspiracy. This is not the liberal media hard at work. This is the record.

Listen to former Chief Prosecutor Air Force Col. Morris Davis. Listen to former prosecutor Lt. Col. Robert Preston. Or read what Captain John Carr had to say. Lt. Col. V. Stuart Couch's words might convince you.

Or try Lieutenant Colonel Stephen Abraham.

[camlina.livejournal.com]

Look, even IF mistreatment has occurred in the majority of previous cases at Guantanamo, that does not make all military actions at Guantanamo guilty by association. Having looked at everything you've said about THIS particular case, I still am not seeing tremendous wrongdoing in this case.

[joshwriting.livejournal.com]

You don't get it, do you?

You keep arguing that there is reason to presume good faith.

I am arguing that there is no such reason. You claimed Certainly there are other instances where it has not made a good-faith effort, but by and large that's not generally the case.

I have attempted to show you that you are mistaken in your presumption that they have him in solitary for good reasons.

Of course you can't see wrongdoing in this specific case, Rachel! Even if there IS wrongdoing, the man is locked up in solitary with no access to counsel and there would be no way for us to know about it!

And, again, beyond the prevention of contact with counsel, I am not alleging wrong-doing, I am not PRESUMING that they are guilty, I am merely denying your "good faith" claims, because the facts prove that you are mistaken.

So, what is your definition of "significantly longer?" Two weeks more of solitary? A month?

[camlina.livejournal.com]

He has not been allowed to see his lawyer because he is in solitary confinement. I think the military has every right to keep him in solitary confinement (where "solitary" does not mean "solitary plus his lawyer"). Given that his lawyer would simply be telling him good news, rather, than trying to consult with him to build his case, this is a little gray but mostly acceptable to me.

By "significantly longer" I mean until the appeals process is done and there is a final verdict.

[joshwriting.livejournal.com]

See my comments on solitary confinement below. Apparently, the powers that be in Guantanamo want it both ways in solitary when he is being denied access and not in solitary when discussing general conditions.

And I find your stance that keeping an uncharged prisoner in solitary confinement for as long as it takes to get a final verdict to be unfathomable. Given that the appeal would be likely to go to the Supreme Court, you are talking about potentially at least a year for further solitary.

Of course, they could just send it back to the group that makes determinations of enemy combatant status and decide that they were wrong to start with 5 years ago, as they have done with others who were captured under identical circumstances.

[joshwriting.livejournal.com]

By the way, I now know why he is in solitary confinement.

All of the Uighurs are kept in solitary - it's their standard everyday treatment. Roughly 80% of the prisoners are kept that way:

The Red Cross, the only independent monitoring organisation allowed to inspect the detention facilities at Guantánamo, has described conditions at Camp Echo as 'extremely harsh'. Prisoners are kept in their windowless cells for 23 or 24 hours a day, and - in the absence of any natural light whatsoever - fluorescent lighting is kept on 24 hours a day.

Or, conversely, Guantánamo, a military spokeswoman said, does not have solitary confinement, only "single-occupancy cells."

A six foot by 8 foot cell, but not solitary at all. And I am sure that the lack of sun and leaving the lights on almost all the time are merely happenstance.

The Seton Hall study found that 55 percent of the detainees are not suspected of having committed any hostile acts against the United States and that 40 percent of the detainees are not affiliated with al-Qaida. Eight percent are listed as having fought for a terrorist group, and 60 percent are merely accused of being "associated with" terrorists—the lowest categorization available. They confirm that 86 percent were captured either by the Northern Alliance or by Pakistan "at a time in which the United States offered large bounties for capture of suspected enemies." They quote a flier, distributed in Afghanistan at the time of the sweeps that reads: "Get wealth and power beyond your dreams ... You can receive millions of dollars helping the anti-Taliban forces catch Al Qaida and Taliban murderers. This is enough money to take care of your family, your tribe, your village for the rest of your life. Pay for livestock and doctors and school books."

The Bush administration has repeatedly described these men as "the worst of the worst."

Your arguments about "this case" remind me of nothing more than the arguments made by schools insisting that there was nothing wrong with how they were dealing with special education classes.

[joshwriting.livejournal.com]

classes students

[cheekyweebisom.livejournal.com]

Six days. Six days of not being able to talk to representation. Not only is it incredibly appalling and unjustifiable, it's INSANE. There are no logistical reasons to deny this. At all. The issue is not whether a six-day delay is substantial when compared to the detainee's total time incarcerated, nor is the question whether the delay will affect his appeals. It's just fucking crazy not to let prisoners talk to their lawyers.

[camlina.livejournal.com]

If he's in solitary confinement, it's presumably not just for jollies. I imagine it's because they hope he'll be more likely to talk this way, or as in punishment for bad behavior. It is highly probable that letting him talk to his lawyer would ruin that. That's not "crazy."

[cheekyweebisom.livejournal.com]

But as someone else has already noted on this page, coercion (leaving him there so he'll be more likely to talk) is not an acceptable tactic now that the court has ruled that his incarceration itself may not be legitimate.

Similarly, they can get back to punishing him for his bad behavior after he talks to his lawyer.

[camlina.livejournal.com]

Which is why I will find this unacceptable - AFTER the courts have finished ruling. While it's in appeals, eh. It's a bit gray, but I don't think the military's behavior is totally wrong.

[joshwriting.livejournal.com]

If their position is, as mentioned above, Guantánamo, a military spokeswoman said, does not have solitary confinement, only "single-occupancy cells," then there is no reason not to let his lawyers talk to him.

If, instead, he is in solitary confinement, and has been for 6 years, not for behavior, but because that's how they treat their prisoners, then there is a problem with their behavior.

And either way, they are contradicting themselves.

Last Chance

[baronet.livejournal.com]

Presumably, it's a tactic to encourage him to talk.

See, I don't think that the government gets to do things to someone like lock them up in solitary confinement because they would like for him to talk. We call that illegal.

Having been told by the court that what they are doing is wrong, they don't get to try for "just a little longer", to take one last chance to break him. That would be like a baseball batter staying at the plate after the third strike, because he's *sure* that he can hit a homer off this pitcher. Or rather the 72nd strike.

I certainly won't want the government to grab me off the street and lock me in solitary confinement for even six days, let alone 6 days after they had had me under their complete and lawless power for 6 years. The fear that they were just "disappearing" me would be painful. (I'd say torture, but that word is awfully loaded in this discussion.) If I found out after I went completely out of my mind that I had had a lawyer on the outside who was working for me the whole time and that I did have some rights after all, that wouldn't retroactively make me sane again.

Or to put it another way, if you steal a car, and the cop catches you, you don't get to keep driving it around while you try to convince a judge that your aunt would have loaned it to it if she'd known.

Re: Last Chance

[camlina.livejournal.com]

Solitary confinement is illegal?

Your baseball analogy is incorrect, because batters are not allowed to appeal decisions. Lawsuits, however, are. Essentially, he's being kept in prison without bail while the military's lawyers decide whether or not to file an appeal. I don't see what's so wrong with that. If they decide NOT to file an appeal, then at that point he has to be released. But until the case has reached its full conclusion, then I really don't think he should be let go, or even necessarily have his treatment altered. What if the next court decides he *is* an unlawful combatant?

There's also the question of what to do with him even if they do want to let him go. IIRC, he's a Uighur, which means we can't legally send him back to China. The US is certainly not going to give him citizenship. Albania has taken a few of our formerly-detained Uighurs, I think, but there's presumably a limit to that.

Re: Last Chance

[joshwriting.livejournal.com]

Solitary confinement as an interrogation technique when the prisoner in question has not been accused of any crimes is illegal, yes.

Your conviction that he is in solitary for presumably good reasons is a "where there's smoke, there's fire" argument which works fine with smoke and fire, but works less well with imprisonment issues. While I understand that he is not a citizen, for most purposes we seem enamored of the notion of "innocent until proven guilty." For Guantanamo, that principle seems alien.

And yes, there is a question about what to do with him. Albania has already said no, according to the article linked from the commentary, and the 5 who are there are "miserable," I gather.

We do not have the right to simply hold him in our prisons because we cannot find a place to put him, Rachel. While we might not give him citizenship, I suspect he will be released in this country - but that [i]this[/i] administration would argue that they [i]do[/i] have the right to hold him under that circumstance.

So, we would have taken this man from where he was, imprisoned him for 6 years for associating with the wrong people, and then denied him freedom because we couldn't put him back where we took him from? How is that even slightly based in justice?

Re: Last Chance

[camlina.livejournal.com]

A) The case is still ongoing. If, at the end of the appeals process, there is a verdict of complete innocence and the military *still* keeps him locked up, THEN I will get upset. But I have absolutely no desire to release this guy before every court has determined his full innocence.

B) You did not present the DoJ's full conclusion earlier.

"Lawyers for the US Department of Justice defended the six-year detention of Huzaifa Parhat, a Chinese Uighur Muslim, at Guantanamo Bay in oral arguments before the US Court of Appeals. The US claims Parhat is an “enemy combatant” due to his ties with the East Turkestan Islamic Movement (ETIM), a group that calls for independence from China and was designated a terrorist organisation by the US State Department in 2002. The DoJ acknowledged that Parhat did not fight against the US and that there is no evidence that he intended to do so, but said he can still be held under the 2001 Authorisation for Use of Military Force Act because ETIM is affiliated with al-Qaeda."

http://www.radianceweekly.com/muslim_world.php?content_id=1995&issue_id=105&issue_date_from=2008-04-25&title=US-DEFENDS-DETENTION-OF-HUZAIFA-PARHAT

Re: Last Chance

[joshwriting.livejournal.com]

You keep coming back to "release," and I have not argued that they should release him yet.

I have argued that his lawyers should have been allowed to talk to him.

I have argued that presuming his solitary confinement is for good reason is baseless.

Here is the 2001 Authorization for Use of Military Force Act:

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The claim that he is an enemy combatant based on that is a stretch, at best. ETIM is affliliated with al-Qaeda. The U.S. trained Osama bin Laden; clearly we, too, are enemy combatants.

"...in order to prevent international terrorism against the United States."

He did not "harbor" al-Qaeda." He did not pose a threat of international terrorism against the United States.

Re: Last Chance

[joshwriting.livejournal.com]

And my argument on releasing him was in direct response to your presentation on the issue of "what to do with him even if they do want to let him go."

It was not predicated on immediate release, but rather what would happen at the conclusion of this appeal process. There was an implication in the NY Times article on the subject that he might not be released even if he is concluded to not be an enemy combatant - as is intimated in your paragraph on the topic.