The Work

June 24, 2008 2:20 PM

Court Sides with Bingham Lawyer on Gitmo Detainee

Posted by David Bario

In a major win for Bingham McCutchen partner and "Guantánamo bar" member Sabin Willett, a federal appeals court ruled Friday that the Pentagon must release a prisoner at the U.S. detention center at Guantánamo Bay, Cuba, or hold a new hearing on his detention.

As The New York Times reports, the decision represents the first civilian judicial review of the system of evidence that the military has used since 2005 to justify the Guantánamo detainees' imprisonment.

The detainee in question, Huzaifa Parhat, is one of 17 Uighurs, Chinese Muslims from northwestern China, who have been held at Guantánamo since 2002. The Pentagon had linked Parhat and the other men to a Uighur separatist organization that the U.S. government listed as a terror group in 2002 at China's request. The Uighurs claim that they are collateral victims of U.S. diplomacy with China, who never meant the U.S. any harm.

The ruling, announced Monday by the U.S. Court of Appeals for the D.C. Circuit, is the first to consider the adequacy, under the Detainee Treatment Act of 2005, of the Pentagon's use of Combatant Status Review Tribunals to determine whether detainees are enemy combatants.

The Am Law Daily caught up today with Willett, who represents Parhat and eight other Uighurs currently held at Guantánamo. He says he's thrilled with the decision, but that Parhat himself has yet to hear the news. [The July issue of The American Lawyer will include an in-depth look at the Uighurs' legal situation and the lengths that their lawyers have gone to win their release.]

What is most significant about this ruling?

What's really marvelous about this is that it's the first decision in all these Guantánamo cases that's been decided on facts. We've had five years of decisions on process: Does habeas apply; is it the Detainee Treatment Act; what is the record that we should use? Every kind of issue. But this is a decision on the facts, in the court where the Bush administration wanted to go, under the statute they wrote [the DTA], which ties both of my legs and one of my arms behind my back--and they lost. I think it’s enormous. 

What was Parhat's reaction?

As far as I know, he knows nothing about the decision. We asked for permission to make a phone call to him and it received no response. We will very shortly file a motion with his habeas judge and ask for his release, and we’ll write him a letter which will probably get there in two weeks.

What has it been like visiting these men at Guantánamo?

[After seven years of detention] many of them have decided that there's no point is speaking to the lawyers at all, and many of them have become angry. When I last met with Parhat in the fall of 2007, he was suffering a lot in isolation and he instructed us to advise his wife that she should remarry, that she should consider him as good as dead. That was a tough meeting.

Do you expect that the remaining Uighurs in Guantánamo will eventually be released?

I won't be surprised if some of the Uighurs turn the lights off down there. In the public mind, even in the legal public, there is such confusion about Guantánamo because most of the press coverage is about the incredibly small number of criminal cases. And people forget about the human beings that are just warehoused there who are never going to be charged with a crime.

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