One year and two weeks ago, District Court Judge Ricardo Urbina ordered that 17 Uighur prisoners at Guantánamo be released into the United States. Muslims from China’s Xinjiang province, the Uighurs were seized and sold to US forces by Pakistani villagers in December 2001, after they had fled a settlement in the Afghan mountains, where they had ended up after fleeing Chinese oppression.
One of the men had secured a resounding court victory last June, when appeals court judges ruled that the government had failed to prove that he was an “enemy combatant,” involved in any way with either al-Qaeda or the Taliban, and in the wake of this ruling the government abandoned all pretense that any of other 16 men were “enemy combatants” either.
Last October, reviewing the habeas corpus petitions of these 17 men, Judge Urbina ordered their release into the United States for three compelling reasons: firstly, because they could not be returned to China, where there were fears that they would be subjected to ill-treatment, torture or worse; secondly, because no other country had been found that would accept them, despite the State Department scouring the globe; and thirdly, because it was unconstitutional for the United States to be holding innocent men at Guantánamo.
After years of indifference — or worse — on the part of the US authorities, who knew that these men were innocent almost from the moment that they were seized, this was a proud moment for US justice, and appeared to provide the remedy that the Supreme Court intended for prisoners at Guantánamo who were found to be innocent by a court, when the nation’s most important judges granted them constitutionally guaranteed habeas corpus rights in June 2008, in Boumediene v. Bush.
However, the Bush administration disagreed, appealing the ruling and persuading a notoriously Conservative bench of the Court of Appeals to rule that, on questions regarding the immigration of aliens into the United States (even those who had been wrongly detained in an experimental prison camp for over six years), the decision was in the hands of the Executive, and not the courts.
In what I regard as one of the weakest moments of the Obama presidency regarding Guantánamo, the Justice Department maintained the same line as the Bush administration in February this year, when the Court of Appeals reconvened en banc (with a full panel of judges) to make a final ruling, in which they officially reversed Judge Urbina’s principled decision to order the men’s release into the United States.
Had the government backed down, the four Uighurs who took up residence in Bermuda in June — where they soon demonstrated to any open-minded local that they were not, and had never been terrorists — would have performed the same remarkable task on the streets of Washington D.C. instead, and even Americans seduced by the Bush administration’s unsubstantiated rhetoric about the “terrorists” of Guantánamo would have been able to discover, first hand, that the Bush administration made mistakes at Guantánamo, and that innocent men were held.
Salahidin Abdulahad and Khalil Manut, photographed by Michelle Shephard for the Toronto Star, enjoy their new-found freedom by fishing in the ocean in Bermuda, June 2009.
Instead, lawmakers of both parties — spurred on by the dark rumblings of former Vice President Dick Cheney, who ghoulishly reappeared, encouraged by the mainstream media, who behaved as though he was still in power — reinforced the Court of Appeals’ ruling, passing legislation preventing the release of any Guantánamo prisoner (however innocent) onto the US mainland.
Betrayed by the Executive branch, Congress and the Court of Appeals, the Uighurs’ lawyers were obliged to appeal to the Supreme Court, which they did in April, asking that the justices address the following question (PDF):
Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush, has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.
In the meantime, the government found a new home in Bermuda for four of the men, and began the negotiations that, to date, appear to have secured the agreement of six of the remaining 13 men that they will be resettled on the remote Pacific island of Palau.
In June, the Supreme Court deferred a decision on the Uighurs — perhaps to allow the government time to find new homes for the men — but on Tuesday the justices unexpectedly agreed to hear the case, Kiyemba v. Obama, which, of course, touches on the very territory that they last visited in June 2008.
Oral argument in the case is not expected until next year, and in the meantime the government may find new homes for the remaining 13 Uighurs, rendering the case moot, but in briefs the battle lines have been drawn.
On the one hand is the government, endorsing Bush-era policies, and stating, via Solicitor General Elena Kagan, that the Uighurs’ remedy has been granted by a court, and that they are “free to go to any country that is wiling to accept them,” but that “there is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country, and ordering that the alien be brought to and released in the United States without regard to immigration laws.”
And for the Uighurs, there is Sabin Willett, a Boston-based attorney, and his team, who argue that the Court of Appeals’ ruling made a mockery of the habeas rights extended to the prisoners by the Supreme Court, and transformed Judge Urbina’s ruling into nothing more than an empty gesture. Willett explained that it made courts “powerless to relieve unlawful imprisonment, even when the executive brought the prisoners to our threshold, imprisons them there without legal justification, and — as seven years have so poignantly proved — there is nowhere else to go.”
In a statement issued via the Center for Constitutional Rights, he added, “We now have asked the Supreme Court to hear the Uighur cases, and rule that the writ of habeas corpus guarantees to the innocent not just a judge’s learned essay, but something meaningful — their release.”
As the eighth anniversary of the men’s wrongful capture approaches, they surely deserve nothing less.
Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK). To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook and Twitter). Also see my definitive Guantánamo prisoner list, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.
As published on the Huffington Post.
For a sequence of articles dealing with the Uighurs in Guantánamo, see: The Guantánamo whistleblower, a Libyan shopkeeper, some Chinese Muslims and a desperate government (July 2007), Guantánamo’s Uyghurs: Stranded in Albania (October 2007), Former Guantánamo detainee seeks asylum in Sweden (November 2007), A transcript of Sabin Willett’s speech in Stockholm (November 2007), Support for ex-Guantánamo detainee’s Swedish asylum claim (January 2008), A Chinese Muslim’s desperate plea from Guantánamo (March 2008), Former Guantánamo prisoner denied asylum in Sweden (June 2008), Six Years Late, Court Throws Out Guantánamo Case (June 2008), Guantánamo as Alice in Wonderland (July 2008), From Guantánamo to the United States: The Story of the Wrongly Imprisoned Uighurs (October 2008), Guantánamo Uyghurs’ resettlement prospects skewered by Justice Department lies (October 2008), A Pastor’s Plea for the Guantánamo Uyghurs (October 2008), Guantánamo: Justice Delayed or Justice Denied? (October 2008), Sabin Willett’s letter to the Justice Department (November 2008), Will Europe Take The Cleared Guantánamo Prisoners? (December 2008), A New Year Message to Barack Obama: Free the Guantánamo Uighurs (January 2009), Guantanamo’s refugees (February 2009), Bad News And Good News For The Guantánamo Uighurs (February 2009), A Letter To Barack Obama From A Guantánamo Uighur (March 2009), Obama’s First 100 Days: A Start On Guantánamo, But Not Enough (May 2009), Pain At Guantánamo And Paralysis In Government (May 2009), Guantánamo: A Prison Built On Lies (May 2009), Guantánamo: A Real Uyghur Slams Newt Gingrich’s Racist Stupidity (May 2009), Free The Guantánamo Uighurs! (May 2009), Who Are The Four Guantánamo Uighurs Sent To Bermuda? (June 2009), Guantánamo’s Uighurs In Bermuda: Interviews And New Photos (June 2009), Andy Worthington Discusses Guantánamo on Democracy Now! (June 2009), Guantánamo And The Courts (Part One): Exposing The Bush Administration’s Lies (July 2009), Is The World Ignoring A Massacre of Uighurs In China? (July 2009), Chair Of The American Conservative Union Supports The Guantánamo Uighurs (July 2009), Three Uighurs Talk About Chinese Interrogation At Guantánamo (July 2009), House Threatens Obama Over Chinese Interrogation Of Uighurs In Guantánamo (July 2009), A Profile of Rushan Abbas, The Guantánamo Uighurs’ Interpreter (August 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.
[…] Andy Worthington Featured Writer Dandelion Salad http://www.andyworthington.co.uk 21 October […]
All I can say is “Hallelujah!”
Obviously, the Government will put extra pressure on Palau to try to moot this; in the interim, we can certainly hope a flood of habeas counsel (say, the 75 recently “cleared for release” plus/minus the 17 or so who won their habeas petitions but still languish at GTMO) can jump on this to force the High Court to rule.
Now that would be good …
Over on the Huffongton Post, there were some interesting comments.
While I commend the Supreme Court for taking this case, the lackadaisical snail’s pace of justice generated, in widely-spaced increments, by our Judicial Branch is increasingly evident, with the other two branches of government willfully flouting Constitutional limits.
This petition should have been granted LAST SPRING — so that oral arguments would be imminent, rather than four months in the offing, while INNOCENT MEN ORDERED RELEASED continue to languish behind bars in our military prison, waiting for the comfort and convenience of judges and lawyers to be accommodated, SEVEN YEARS after our Constitution, if honored, would have effectuated their release.
The Supreme Court’s Boumediene decision was a pivotal fork in the road, reasserting a Constitutional Republic in lieu of a virtual Monarchy where Executive Might Makes Right, no questions asked by Congress. But justice delayed is justice denied, so the Supreme Court should emphasize that, by accelerating a briefing schedule and argument in this case – in which the D.C. Circuit has attempted to moot the Supreme Court’s Boumediene directive.
In addition to the fact that Congress evidently prefers replacing the Federal Bureau of INVESTIGATION (of actual crime scene evidence) with the Federal Bureau of (Coercive) INTERROGATION (no other “evidence” needed), note this fact pointed out yesterday by Senator Dick Durbin:
“What does it cost for us to hold a terrorist [SUSPECT, Dick…] at Guantanamo today? Mr. President, $435,000 a year. That is what it costs — dramatically more than the cost of incarcerating in America’s prisons.”
The Bush/Cheney unending American nightmare continues. People who have never lifted a finger against the US are loudly proclaimed to be “the worst of the worst” by VP Cheney and 8 years of their lives disappear in a US prison camp.
The word “shame” comes to mind, but there were real criminal acts committed here to tear such gaping holes in these people’s lives. Why is this tolerated in a “free” society?
Meddling Monk wrote:
It is really quite astonishing that it has been and is still being assumed, as if it is the normal state of affairs, that people may be imprisoned indefinitely on the grounds that they had once been accused of wrongdoing, and that the acknowledged fact of the baselessness of that accusation is not by itself sufficient grounds for setting those people free. This is very nice, isn’t it? A mere accusation has the same legally-binding effect of a trial and conviction, with the added ‘benefit’ that there is no possibility of appeal, pardon, parole, or anything else. If this continues, presumption of innocence is dead.
THIS is the reality behind Colin Powell’s long-ago warning to George Bush over Iraq: “you break it, you own it!”
The United States wronged these men, and has made it impossible for them to return home. It’s the US’s problem to fix. If that means giving them a green card, that’s the debt the US owes. Any less is a gross national dishonor.
And arcticredriver wrote:
I agree completely.
What I think public safety requires is a thorough, skeptical review of every claim that the Guantanamo intelligence team has asserted they learned from the captives. The total lack of meaningful sanity checking in the claims have seriously eroded public safety, because those claims were taken seriously, and resources were squandered, wildly.
Better late than never, all those claims that can’t withstand scrutiny should be dismissed, before they lead to the waste of more counter-terrorism resources.
This would be an instance of fundamental justice coinciding with public safety. Because 500 of the men transferred from Guantanamo remain classed as “enemy combatants”.
[…] I explained in an article last week, the Justice Department, under both George W. Bush and Barack Obama, disagreed, as did […]
[…] appeared to stuck at Guantánamo, his only way out being to hope that the Supreme Court, which agreed to hear the Uighurs’ case last year, would overturn last February’s appeals court ruling, and allow cleared prisoners who […]
[…] that Obama was on a collision course with the Supreme Court, which accepted the men’s case last October, until Switzerland obligingly offered the men a new home in January of this […]
[…] the ruling in the Court of Appeals, the Uighurs’ lawyers appealed to the Supreme Court, prompting a frantic, and, frankly, cynical effort by the administration to find new homes for the […]
[…] appealed, and, when President Obama took office, he followed the same line, failing to take the opportunity to bring the Uighurs to the States, which would have demonstrated to the American people that they […]
Investigative journalist, author, campaigner, commentator and public speaker. Recognized as an authority on Guantánamo and the “war on terror.” Co-founder, Close Guantánamo, co-director, We Stand With Shaker. Also, singer and songwriter (The Four Fathers) and photographer.
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