A New Year Message to Barack Obama: Free the Guantnamo Uighurs

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The omens have
never been good for the 17 Uighurs in Guantánamo, even though
they have justice on their side. Refugees from Chinese oppression
who had sought shelter in Afghanistan, only to be captured and sold
to U.S. forces as “terror suspects,” the 17 men were the
first Guantánamo prisoners to be cleared of being “enemy
combatants,” after an appeals court demolished
the supposed evidence against one of the men in June, and the government
abandoned its claims against the other 16.

The Uighurs
then secured a resounding
at the start of October, when District Court Judge Ricardo
Urbina ruled that their continued detention in Guantánamo
was unconstitutional, and ordered their release into the United
States, as they cannot be returned to China because of fears that
they will be tortured, and no other country had been found that
was prepared to accept them. When the government appealed Judge
Urbina’s ruling, however, only one of the three appeal court
judges dealing with the case – Judge Judith W. Rogers, a Bill
Clinton nominee – understood the lies and distortions that
the government had put together to prevent their release.

Judicial nominees
do not always ape the opinions of those who appoint them, of course.
Their independence – and their desire to follow legal precedents
rather than political whims – often infuriates those who appointed
them, but it would be fair to say, I think, that judges’ conservative
or liberal tendencies often match those of the Presidents who appointed

In November,
when Judge Richard Leon, a Bush appointee, ordered five Bosnian
Algerians to be released
from Guantánamo
because the government had failed to
substantiate its allegations against them, there was genuine surprise,
but the decision in the case of these 17 other innocent men at Guantánamo
was all too predictable, as two other Bush nominees, Karen LeCraft
Henderson and A. Raymond Randolph, proved themselves unable to notice
the government’s dissembling, and endorsed whatever nonsense
was pushed their way.

And nonsense
it was, as Judge Rogers explained, on October 20, in a dissenting
opinion (PDF),
when her colleagues first approved the government’s request
for a stay on the Uighurs’ release pending an appeal. Although
the appeal took place on November 24, the verdict has not yet been
announced, but is expected to endorse the administration’s
self-proclaimed right to extend the Uighurs’ imprisonment in
Guantánamo indefinitely.

In her dissenting
opinion, Judge Rogers drew on Boumediene
v. Bush
, the Supreme Court case last June that revived the
prisoners’ habeas corpus rights (first granted in June 2004),
after Congress had attempted to remove them in two flawed pieces
of legislation (the Detainee Treatment Act of 2005, and the Military
Commissions Act of 2006). She noted that the Supreme Court not only
granted Guantánamo prisoners “the privilege of habeas
corpus to challenge the legality of their detention,” but also
held that “a court’s power under the writ must include
‘authority to … issue … an order directing the prisoner’s

Noting that
this was “exactly” what Judge Urbina had done, “subject
to conditions to be determined by the district court in light of
the views of the Department of Homeland Security and proffers regarding
housing and supervision made by their counsel,” Judge Rogers
pointed out, unambiguously, that “The court’s release
order was based on findings that are either uncontested by the government
or clearly supported by the record.” She noted that the government
“had filed no returns to the writs filed by ten of the petitioners,
and the returns in response to the remainder consisted only of the
hearing records from the Combatant Status Review Tribunals”
that had been “found wanting” in Parhat v. Gates,
the case in June in which an appeals court had derided the government’s
supposed evidence against one of the men, Huzaifa Parhat, for being
akin to a nonsense poem by Lewis Carroll, the author of Alice’s
Adventures in Wonderland.

Dealing a
final blow to the government’s unprincipled and two-faced claims
that, although cleared of being “enemy combatants,” the
men remained a threat to national security because they had received
weapons training, Judge Rogers added, “Although expressly offered
the opportunity by the district court, the government presented
no evidence that the petitioners pose a threat to the national security
of the United States or the safety of the community or any person.”

Moving on
to the government’s attempts to claim that “under the
separation of powers the decision on whether to admit the petitioners
into the United States ‘rests solely with the political branches,’”
and that “immigration laws preclude a habeas court from ordering
the release of an inadmissible alien into the United States,”
Judge Rogers stated that the first argument “misstates the
law,” because “the Supreme Court has made clear that,
in at least some instances, a habeas court can order an alien released
with conditions into the country despite the wish of the Executive
to detain him indefinitely,” and “It is thus both inadequate
and untrue to assert that the political branches have ‘plenary
powers over immigration.’”

Dealing with
the second argument – that the Uighurs were “inadmissible
aliens” either because they had been “engaged in ‘terrorist
activity’” or were “members of, or received weapons
training from, a terrorist group” – Judge Rogers reiterated
that the government was attempting to defy reality, because it “did
not proffer evidentiary support for this argument in the district
court,” and also explained that, even if this were not the
case, the government’s argument was “problematic,”
because the Supreme Court “had held that even inadmissible
aliens cannot be held indefinitely under the normal immigration
detention status,” whereas the Uighurs “have been imprisoned
for over six years.”

Judge Rogers
also noted that the government had “made no showing” that
the Attorney General had “certified” the Uighurs for “special
alien-terrorist provision, as required by that statute,” and
pointed out that it had, instead, attempted to rely on the same
discredited CSRTs that the Parhat judges had found to “lack
sufficient indicia of … reliability.”

She also explained
that “interpreting the immigration statutes to bar release
from Guantánamo robs the petitioners’ habeas right [as
granted in Boumediene] of meaning,” and chided the government
for misinterpreting a 1953 case, Shaughnessy v. US ex rel. Mezei,
in which the Supreme Court ruled that “inadmissible aliens
have no constitutional rights because they are outside the territory
of the United States,” by explaining that, in Boumediene,
the Supreme Court “explicitly recognized that Guantánamo
detainees have a constitutional right to habeas,” and adding
that “Mezei sought admission to the United States of
his own will while these petitioners require admission because they
were abducted by bounty hunters, brought by force to Guantánamo,
and imprisoned as enemy combatants, which the government has conceded
the petitioners were not.”

In a final
salvo, Judge Rogers tackled the government’s attempts to claim
that allowing the Uighurs to enter the United States would cause
“irreparable harm,” by returning to the lack of any evidence
against them. Noting that, “Having failed to file returns for
many of the petitioners or to proffer evidence to the district court,
the government can point to no evidence of dangerousness,”
she added that “such record as exists suggests the opposite,”
pointed out that the court “found there is no evidence petitioners
harbor hostility toward the United States,” and highlighted
a significant passage from Boumediene to wrap up her dissent:

[T]he writ of habeas corpus is itself an indispensable mechanism
for monitoring the separation of powers. The test for determining
the scope of this provision must not be subject to manipulation
by those whose power it is designed to restrain.

Judge Rogers’
dissent clearly highlights the government’s shameful attempts
to disguise a catalog of grievous errors through tortuous legal
maneuvering, to shirk all responsibility for depriving 17 innocent
men of their liberty for seven years, and to dream up justifications
for continuing to hold them indefinitely. However, the most distressing
result of the craven capitulation of Judges Henderson and Randolph
to the government’s last-ditch demonstration of executive arrogance
was highlighted by Erin Louise Palmer, a member of the International
Human Rights Committee of the American Bar Association’s Section
of International Law, on
a blog
maintained by members of the Committee.

Noting that
Judge Randolph had written the Court of Appeal’s decisions
in Al Odah v. United States, Hamdan v. Rumsfeld, and Boumediene
v. Bush, in which the Court of Appeals had deprived Guantánamo
prisoners of their habeas rights and had upheld the validity of
the Military Commissions as a suitable trial system, Palmer pointed
out that the Supreme Court “disagreed with each of these decisions.”
From this a clear inference can be drawn that the Uighurs’
case will not only be taken up by the Supreme Court, but will result
in another bloody nose for Judges Henderson and Randolph.

only problem with this scenario, of course, is that it leaves the
Uighurs stranded in Guantánamo with no notion of when they
will ever be released. As I explained in a recent
, the only other solution is for Barack Obama to step
in and order the men’s release. Given the disgraceful propaganda
peddled by the outgoing administration, this may not be a popular
move, but it is required not only to emphasize that the new government
is committed to upholding the U.S. Constitution, but also as an
important gesture to America’s allies, to encourage them to
accept other prisoners, cleared for release for many years, who,
like the Uighurs, cannot be repatriated because of international
treaties preventing the return of foreign nationals to countries
where they face the risk of torture.

By freeing
the Uighurs to the care of the communities in Washington D.C. and
Tallahassee, Florida, who have already prepared detailed
for their welcome, President Obama can show the leadership,
respect for the law and moral courage that is demanded by the plight
of Uighurs and that is, moreover, necessary for him to fulfill his
promise to close
, and to begin the long process of addressing
the many human rights abuses perpetrated by the Bush administration.

6, 2009

Worthington is the author of
The Guantánamo Files: The Stories of the 774 Detainees in
America’s Illegal Prison
(published by Pluto Press).
Visit his website.

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