Congratulations to the Swiss Canton of Jura, which recently accepted the asylum claims of two Uighur prisoners at Guantánamo, and to the Swiss federal government for agreeing to accept Jura’s decision on Wednesday.
The two men in question — Arkin Mahmud, 45, and his brother Bahtiyar Mahnut, 32 — were seized with 20 other Uighurs in December 2001. The US authorities realized almost immediately that all of these men, who are Turkic Muslims from China’s Xinjiang province, had only one enemy — the Chinese government — and had been seized (or bought) by mistake. However, although the majority of the men were cleared for release by 2005, the Bush administration accepted that it could not return them to China, because of fears that they would face torture or other ill-treatment, but then struggled to find another country that would take them instead.
In May 2006, Albania was persuaded to take five of these men, but the other 17 had to wait until October 2008, when Judge Ricardo Urbina, a US District Court judge, ruled on their long-delayed habeas corpus petitions, and ordered their release into the United States, because no other country had been found that would take them, and because their continued detention was unconstitutional.
Predictably, the Bush administration appealed, and in February 2010 the Obama administration, to its eternal shame, followed suit, backing a ruling by the Court of Appeals, which overturned the lower court ruling, and hurled the Uighurs back into limbo.
In June 2009, the State Department managed to find new homes for four of these men in Bermuda, and in November the Pacific island of Palau took another six. As a result, seven Uighurs remained in Guantánamo, but by taking the brothers, the Swiss government has not only dared to take on the might of the Chinese government, which threatens any country that dares to entertain the prospect of taking any of the men from Guantánamo, but has also helped President Obama out of what appeared to be an intractable problem.
In a statement, the Swiss Justice Ministry said, “Today the Federal Council decided to admit for humanitarian reasons two Uighurs with Chinese citizenship, who have been imprisoned in Guantánamo for years by the United States without being charged with a crime nor [convicted].” Brushing aside the threats that the Chinese government had made last month, when Chinese officials warned that Switzerland should avoid damaging “overall Sino-Swiss relations,” the Justice Minister Eveline Widmer-Schlumpf added that Switzerland has a “stable, good relationship with China, and we want to keep it that way.”
Not mentioned publicly was the fact that, until Jura accepted the men’s asylum claims, one of them, Arkin Mahmud, 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 cannot be repatriated into the United States.
The problem is that Palau had refused to take Arkin Mahmud, because, as the Washington Post noted in an editorial in October, he “suffers from serious mental health issues because of his detention and lengthy periods of solitary confinement.” As a result, Bahtiyar Mahnut turned down Palau’s offer of a new home for himself, in order to stay with his brother, and, as the Post noted, “Unless another country accepts the brothers, they could remain in custody indefinitely — a prospect that is unconscionable and that no doubt informed the justices’ decision to hear the matter.”
As I explained in an article at the time:
[T]he Supreme Court was faced with a tricky legal decision, because the justices will be considering whether, in defense of habeas corpus, and in reference to the unique position in which the Guantánamo prisoners are held, they are being asked to decide whether a judge has the power to order the release of prisoners into the US, when all the precedents, as the Court of Appeals made clear, establish that the admission of foreigners into the US is a matter for the executive and legislative branches of government.
At the time, the Post reached a principled conclusion with profound implications for the government, arguing that the “moral and ethical imperatives” were “clear and compelling,” and that the government should introduce “narrowly crafted legislation that would allow Mr. Mahmud and Mr. Mahnut into the United States, where they could remain together and Mr. Mahmud could get the medical help he needs.”
This “narrowly crafted legislation” will not now be needed, but it remains to be seen if the imminent release of Arkin Mahmud and Bahtiyar Mahnut will affect the Supreme Court’s planned deliberations about the remaining five Uighurs.
The Supreme Court has scheduled argument for March 23 to decide whether to overturn the precedents regarding the admission of foreigners into the US, when, as in the cases of the Uighurs, these men are held in Guantánamo because it is not safe to repatriate them, and no other nation will take them.
The men’s lawyers will argue, as they have consistently, that the Supreme Court ruling in June 2008, granting constitutionally guaranteed habeas corpus rights to the prisoners, is meaningless if a judge cannot actually order prisoners to be released.
As the Associated Press explained on Wednesday, the government could now try to argue that the Supreme Court should drop the case, because the remaining Uighurs were apparently offered new homes in Palau but turned down the offer. Sharon Bradford Franklin, senior counsel at The Constitution Project, told the AP that she feared this outcome. “I would not be surprised,” she said, “if the administration says that the Uighurs themselves are at fault that they have not been resettled to Palau.”
However, Sabin Willett, an attorney who has represented the Uighurs for many years, was more hopeful, telling the AP by email that he “expects the case to go forward.” I tend to share Willett’s optimism, but not, of course, if the remaining five men are miraculously resettled in some other country, perhaps just days before the March 23 deadline.
If there is one thing we have learned from the Obama administration, since the President shelved plans made last April by his counsel, Greg Craig, to bring the Uighurs to live in the US, it is that, regardless of whether senior officials may agree in private that resettling the Uighurs in the US would be the right thing to do, they are not prepared to tackle their critics — and the Bush administration’s poisonous legacy — head-on. Instead, senior officials prefer not only to avoid confrontation, but also, sadly, to avoid doing anything that would demonstrate to the American public that enormous mistakes were made at Guantánamo, and that the rhetoric of Dick Cheney and his thriving acolytes is disturbingly mistaken.
I can think of no finer way to demonstrate this than to allow the Uighurs to walk free on the streets of, say, Washington D.C., but it remains clear that this is not something that the administration will undertake willingly, and in the meantime, the people of Bermuda and Palau have been learning this instead, and are soon to be joined by the people of Switzerland.
President Obama is fortunate to have such kind allies, but he himself is the loser, the longer he refuses to tackle those who insist, in the face of overwhelming evidence, that everyone who was held at Guantánamo was a “terrorist,” and that it is somehow appropriate to continue to deprive innocent men of their liberty in Guantánamo, rather than giving them new homes in the country that, through cruelty and incompetence, deprived them of so many years of their lives.
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, updated in January 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, and launched in October 2009), and, if you appreciate my work, feel free to make a donation.
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), A Plea To Barack Obama From The Guantánamo Uighurs (August 2009), Court Allows Return Of Guantánamo Prisoners To Torture (September 2009), Finding New Homes For 44 Cleared Guantánamo Prisoners (October 2009), Justice At Last? Guantánamo Uighurs Ask Supreme Court For Release Into US (October 2009), Senate Finally Allows Guantánamo Trials In US, But Not Homes For Innocent Men (October 2009), Six Uighurs Go To Palau; Seven Remain In Guantánamo (October 2009), Who Are The Six Uighurs Released From Guantánamo To Palau? (November 2009), Guantánamo Uighurs In Palau: First Interview And Photo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (December 2009), and the stories in the additional chapters of The Guantánamo Files: Website Extras 1, Website Extras 6 and Website Extras 9.
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It comes down to whether or not Justice Kennedy will accept the proposition that refusing forcible resettlement to another remote island not of one’s choosing acts as a waiver of rights under habeas corpus; while I hope the answer would be a resounding NO (just to ensure that judgments of the Supreme Court actually mean something)… that’s not how you bet. I’m going to bet that the Obama Admin. has just mooted this case, and unless some other detainee manages to get his case up to the Court before the Gov’t finds some other new home for them, habeas corpus has been reduced to an academic exercise.
Irony doesn’t begin to describe the despair of watching the probable destruction of the ultimate constitutional right– the right not to have the Government lock you in a dungeon solely at its whim– by the actions of the (alleged) constitutional law teacher, my college classmate, President Barack H. Obama.
Thanks, TD, though your analysis is not exactly cheerful, of course. I wonder where the Uighurs will be dumped in the next 47 days, to demonstrate, as you so rightly say, that “habeas corpus has been reduced to an academic exercise.”
I find it sickening, to be honest, that Obama can’t find the courage to even contemplate bringing a single patently innocent man to live in the US, and ride out the frenzy that would dissipate when it was discovered that – hey! – this guy isn’t a terrorist at all.
I just spent some time with Omar Deghayes this evening. He came along to an Amnesty meeting I’d been asked to talk at in Brighton, and we did a nice double act. Someone like Omar in the States could singlehandedly cut through all the hysteria and cowardice …
And here are a few comments from Common Dreams:
As I recall a couple of years back, one courageous town in Vermont issued an arrest warrant for Bush and Cheeny. Back in the 1980s, several locations, including churches and cities offered sanctuary to people fleeing the death squads in Central America. I wonder why American citizens can’t go to the local city councils, or equivalent thereof, and ask them to pass resolutions inviting these Uighurs to come there as a new form of sanctuary?
The poor Uighurs must be almost sorry to go to Switzerland. Had the Swiss not taken them, they would have seen 0bama do something right.
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[…] And Photo (November 2009), Guantánamo: Idealists Leave Obama’s Sinking Ship (December 2009), Swiss Take Two Guantánamo Uighurs, Save Obama from Having to Do the Right Thing (February 2010), Guantánamo Uighurs Back in Legal Limbo (March 2010), More Dark Truths from […]
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