• 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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