Guantánamo Uighurs Back in Legal Limbo

Last Monday, the Supreme Court declined to review a case brought on behalf of seven men in Guantánamo whose release into the United States was ordered by a US judge 17 months ago. The men in question are Uighurs, Muslims from China’s Xinjiang province, and the ruling ordering them to be rehoused in the US was made in October 2008 by Judge Ricardo Urbina.

In light of the Supreme Court’s June 2008 ruling, in Boumediene v. Bush, granting the Guantánamo prisoners habeas corpus rights, the government had suffered a humiliating court defeat, and had then abandoned all pretense that the Uighurs — sold to US forces after fleeing a settlement in which they had been living in Afghanistan — were “enemy combatants.” It had long been apparent to the Bush administration that the men had only one enemy — the Chinese government — and the government had also accepted that it could not repatriate them, because they would face torture or other ill-treatment, and so, for many years, the State Department had been obliged to try to find new homes for them in other countries.

This was a difficult task, and although Albania accepted five of Guantánamo’s 22 Uighurs in May 2006, no other country would help out, and it took another two years and four months — and the Boumdediene ruling — until a judge was able to examine their case, and to order that, because no other country had been found that would accept the remaining 17 men, and because the government had conceded that they were not “enemy combatants,” their continued detention was illegal, and the government should offer them new homes on the US mainland.

The government, predictably, appealed, and in February 2009 the Court of Appeals for the D.C. Circuit ruled against the men, and against Judge Urbina’s heroic ruling, casting the men back into legal limbo by ruling that matters relating to immigration were not for the courts to decide, but were, instead, the exclusive preserve of the Executive branch.

In light of the Uighurs’ particular circumstances, this was a callous ruling, but it was unsurprising given that one of the judges in this notoriously conservative court was Judge A. Raymond Randolph, who had the dubious distinction of writing the three major Guantánamo decisions issued by the D.C. Circuit — in Al Odah v. United States, Hamdan v. Rumsfeld and Boumediene v. Bush — which were all reversed by the Supreme Court.

More surprising was the fact that the Justice Department, under Obama, chose to maintain the Bush administration’s position, but this was a harbinger of further cowardice to come, and although Greg Craig, the White House Counsel, then established a plan to bring two of the Uighurs to the US in April, and secured the agreement of Secretary of State Hillary Clinton, and defense secretary Robert Gates, Obama quashed the plan when he started taking flak from Republican critics, and the Uighurs were once more abandoned.

Through extraordinary diplomatic maneuvering, Special Envoy Daniel Fried managed to secure new homes for ten of the men in the months that followed. Four went to Bermuda in June, and another six to the island of Palau, in the Pacific, at the end of October. In the meantime, the Supreme Court agreed to take the men’s case, to decide whether Judge Urbina — and the men’s lawyers — had been right, and that habeas was meaningless if a judge was unable to order the release into the US of innocent men, seized by mistake, for whom no other country could be found.

However, before the Mar. 23 deadline arrived for the Supreme Court to review the case, Switzerland threw the government a lifeline, offering new homes to two of the men. This still left five others, but they had all been offered new homes in Palau and another country, which they had refused. As a result, the government asked the Supreme Court to dismiss the case as “improvidently granted,” because of the Swiss offer, and because the other five men “had received offers of resettlement, which were later withdrawn, from the Republic of Palau and a second unidentified country.”

Despite the offers, this remains a complicated situation. Switzerland has made its offer, but has not yet brought the men to their new homes, and the Palau deal is less straightforward than it may at first appear. Although some critics have argued that the men are angling for new homes in the US and have consigned themselves to life imprisonment in Guantánamo by refusing the offer, their lawyers have stated that they had genuine doubts about the terms of resettlement, and fears that they would still not be safe from the Chinese government, which were perfectly legitimate.

Quite how these problems will be resolved is at present unclear. The Supreme Court ruled that, because offers of resettlement had been made, “This change in the underlying facts may affect the legal issues presented,” adding, “No court has yet ruled in this case in light of the new facts, and we decline to be the first.” As a result, the Supreme Court referred the case back to the D.C. Circuit, noting that the court “should determine, in the first instance, what further proceedings in that court or in the District Court are necessary and appropriate for the full and prompt disposition of the case in light of the new developments.”

At first glance, this appears to be bad news, and it is, of course, in the sense that the Uighurs are still stuck at Guantánamo, and the Supreme Court refused to fulfill the dreams of Guantánamo’s fiercest opponents — myself included — who had hoped that the highest court in the land would finally order the Executive to take responsibility for the Bush administration’s horrendous mistakes by giving new homes to wrongly detained men. From my point of view, this would not only encourage other countries to continue taking cleared prisoners who cannot be repatriated, but would also demonstrate to the American people, in the clearest manner possible, that not everyone held at Guantánamo was a terrorist, and that terrible mistakes were made.

However, despite this disappointment, the Supreme Court did not merely bounce the case — Kiyemba v. Obama — back to the lower courts. Clearly and deliberately, the justices actually vacated the Court of Appeals ruling, which they need not have done, banishing the judges’ contentious ruling about immigration and the reach of habeas corpus, and allowing the Uighurs’ lawyers to file a petition requesting that the case be remanded back to the District Court to look at anew, with a full exploration of all the issues surrounding habeas rights and the resettlement proposals.

Vacating the Court of Appeals ruling was not only a positive step in terms of reviving the issues outlined above; it also removed some of the other baleful effects of that particular ruling that had impacted negatively on other detainee issues.

In an email exchange, Michel Paradis, a civilian defense lawyer with the Pentagon, assigned to the Military Commissions, explained that “the biggest problem with Judge Randolph’s now vacated decision was that it went far beyond what the facts and issues in the case required,” and that Randolph “strained to reach the most sweeping ground on which to decide the case.”

Paradis continued:

I would not be surprised if there were some debatable issues over the application of immigration laws, but Judge Randolph went far beyond that, and, as he did in Al Odah, Boumediene and Hamdan, threw in a gratuitous paragraph that said GTMO detainees simply do not qualify as persons protected by the Due Process Clause of the Constitution.

The practical effect of this paragraph has been pernicious. In Rasul v Myers [a torture case brought against senior US officials by several British ex-prisoners], Judge Randolph relied on this paragraph to rule that former British detainees are not “persons” and therefore were not protected from religious harassment by federal law. And since the D.C. Circuit’s rulings control the district courts, the district judges have ruled, in the Obaidullah case for example [an Afghan recently put forward for a trial by Military Commission], that forced confessions can be admitted even into a civilian federal court if they happen to have been made by a GTMO detainee. So this paragraph did not simply create second-class persons, it created a class of non-persons. And it did so in a way that was not only dubious legally, but wholly unnecessary.

Moreover, although Judge Randolph papered over Boumediene, Judge Rogers, who concurred with the result in Kiyemba, strongly objected to Judge Randolph’s apparent effort to overrule the Supreme Court. Likewise, in Rasul, Judge Brown, who was one of the Bush administration’s more contentious appointments to the D.C. Circuit, called Judge Randolph’s reasoning “constricted” and “untenable” (strong words for a federal court opinion) and insisted that “’persons’ are individual human beings, of whom the American people are just one class.”

From this, it is clear that the Supreme Court had more in mind than just the Uighurs, and that it was extremely important to dismiss, for the fourth time, an unacceptable ruling made by Judge Randolph. Admittedly, this hurls the Uighurs back into a legal limbo, but my hope is that the case will be returned to the District Court, and that a judge with the decency and respect for the law demonstrated by Judge Urbina in October 2008 will once more be able to address these issues in a responsible manner, and may, for the second time, set in motion a process that, this time, might lead to the resettlement of innocent men from Guantánamo on the US mainland.

Not only would this be the right thing to do, but nothing — and I mean nothing — would do more to silence the opportunistic fearmongers who delight in stirring up hysteria about Guantánamo at very opportunity than for one of these men to be brought to live in America, where ordinary, decent people would soon realize that the hysteria is nothing more than a cynical attempt to preserve the Bush administration’s lies about the wretched experiment undertaken at Guantánamo.

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.

As published exclusively on the website of the Future of Freedom Foundation.

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.