The acclaimed American jurist Thurgood Marshall said that “to protect against injustice is the foundation of all our American democracy”, and it is a tragedy his message has been lost on his country’s politicians.
Since it was sworn into office in 2021, the administration of US President Joe Biden has repeatedly committed itself to upholding the “rules-based international order”, which sounds nice enough. The phrase is invariably invoked in order to justify foreign policy initiatives, and to malign rivals. It has, however, now become so hackneyed that The New York Times calls it “vacuous”, although a better description might be “hypocritical”.
On March 18, 2021, for example, when the US secretary of state, Antony Blinken, met the Chinese State councilor, Wang Yi, in Alaska, Blinken said his government was “committed to leading with diplomacy to advance the interests of the United States and to strengthen the rules-based international order”.
On Sept 28, 2022, when the US vice-president, Kamala Harris, visited Japan, she accused China of undermining the “international rules-based order”.
On Aug 14, 2022, in a statement marking India’s 75th anniversary of independence, Biden declared that the US and India would “stand together to defend the rules-based order”. He also explained that the two countries had a “shared commitment to the rule of law and the promotion of human freedom and dignity”, which must have come as a surprise to Saifullah Paracha, a 75-year-old Pakistani.
A successful businessman, Paracha was arrested in Thailand by US agents after a sting operation in July 2003, almost two years after the Sept 11, 2001, attacks on New York, and initially detained at Bagram Air Base, in Afghanistan. He was suspected of being an al-Qaida sympathizer, helping to finance the group, and of having contacts with its leaders, including Osama bin Laden and Khalid Sheikh Mohammed. However, he insisted he was innocent and he was never charged with any offense, indicating the suspicions could not be substantiated.
After the 9/11 attacks, the then-defense secretary, Donald Rumsfeld, decided a place offshore had to be found for the extrajudicial detention of suspected terrorists, and the US military prison in Guantanamo Bay (“Gitmo”), Cuba, was chosen, on Jan 11, 2002. Its beauty was that, once suspects were classified as “unlawful combatants”, and incarcerated in Gitmo, they were removed from the protections of the 1949 Geneva Convention. As David Bowker, a US State Department lawyer, subsequently told Newsweek, the aim was to “find the legal equivalent of outer space”, a place beyond the reach of the US judicial system.
After a year at Bagram, Paracha was transferred to Gitmo, subsequently describing his time there as “like being alive in your own grave”. In 2004, in a freedom bid, he lodged a writ of habeas corpus against the then-US president, George W Bush. As, however, Rumsfeld had intended, he was unable to have his case heard by a regular US court, and, on Dec 8, the Combatant Status Review Tribunal (Panel 2) confirmed his combatant status (the US Supreme Court, in Boumediene vs Bush, subsequently ruled that these tribunals were unconstitutional).
In consequence, Paracha was detained for a further 18 years, with no opportunity to test the case against him in a court of law, let alone win back his freedom. This prompted Reprieve, a prisoner advocacy charity, to call him Gitmo’s “forever prisoner”.
On Oct 29, 2022, however, after almost two decades in custody, and with Biden’s approval, Paracha finally returned to his home in Pakistan, 17 months after he was originally notified he would be set free.
When his British lawyer, Clive Stafford Smith, questioned why it had taken 17 months for Paracha, Gitmo’s oldest prisoner, to be released, he received no explanation. This would normally, on the basis of unlawful detention, result in massive damages being payable to the victim, but not for Paracha.
In May 2021, moreover, when Paracha was notified at a hearing that he was finally to be released, he was, according to his US public defender, Shelby Sullivan-Bennis, given no reasons, beyond being told he was “not a continuing threat”. On Oct 29, she told The Guardian that Paracha’s release was “an indescribable blessing and a tragic reminder of how America’s fear following 9/11 led us to the depths of human depravity, ripping apart families”, with many detainees being denied “any trial whatsoever”.
The US director of Reprieve, Maya Foa, was no less forthright. She told CNN that Paracha, having been taken from his family (comprising his wife and four children) while “in the prime of his life”, was being returned to them as “a frail old man”, and called this an “injustice that can never be rectified”.
However, notwithstanding Paracha’s ordeal, Biden has not apologized to him, let alone offered him any compensation, and the future of this once-prosperous businessman is bleak, particularly given his poor health.
Meanwhile, Clive Stafford Smith has disclosed that he has four other clients in Gitmo who, despite also having been cleared for release, remain in detention, and he calls their situation an “embarrassment for the US”.
On Jan 11, 2022, Hina Shamsi, director of the American Civil Liberties Union’s National Security Project, revealed that, since 2002, 779 Muslim men and boys had been detained in Gitmo, nearly all without charge or trial, meaning Paracha was but one of many. She pointed out that, around the world, Gitmo had become “a symbol of racial and religious injustice, abuse, and disregard for the rule of law”, the very things Biden, Harris and Blinken, with their “rules-based order”, claim to oppose. The US government’s embrace of what Shamsi called “systemic torture” had, moreover, “shattered lives, shredded this country’s reputation in the world, and compromised national security,” and there had been no “justice and redress for all the many victims”.
Thurgood Marshall, who would never have imagined the US could sink so low, must be rotating in his grave.
Although Biden has promised to close Gitmo, his predecessor, Barack Obama, made a similar pledge in 2009, yet it will soon be marking its 21st anniversary, with no end in sight.
When US politicians (and their Five Eyes partners) wax lyrical about the “international rules-based order”, they presumably have in mind such ideals as due process, fair trials and an avoidance of arbitrary detention, the very things that Paracha, and many others, have been denied. Although Biden, on Aug 14, trumpeted America’s commitment to “the rule of law and the protection of human dignity and freedom”, he and his predecessors have not extended these to their political prisoners. It beggars belief, therefore, that he and his subordinates still expect to be taken seriously when, despite having set such a dreadful example, they pontificate to others about upholding the “international rules-based order”.
After her sterling efforts to secure Paracha’s release, Shelby Sullivan-Bennis has now reviewed the situation. On Oct 29, she tweeted: “How do you force the United States government to follow its own rules, honor its own words? You don’t. You sit and you wait and your elderly client gets older and his family members pass away. That is powerlessness. And it is a fraction of what Saifullah Paracha has felt over these last 18 years in Guantanamo Bay.” Her words will hopefully resonate with the anti-China lobbyists, including the Congressional-Executive Commission on China, who, instead of hypocritically maligning Beijing, should be putting their own house in order, and demanding an end to human rights violations by their own government.
Quite clearly, American exceptionalism, if it ever meant anything, is dead, and US hegemonism is the name of the game. The ordeals of Paracha and his fellow prisoners admit of no other explanation. If, therefore, they wish to be taken seriously, the task now for Biden, Harris and Blinken is to try to salvage whatever remains of their country’s reputation, and not to countenance any further the injustices that have ruined Paracha’s life, and would have disgusted Thurgood Marshall.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.