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No Escape From Guantánamo: Uighurs Lose Again in US Court

By Andy Worthington

07 June, 2010

In 2002, when Guantánamo opened, 22 Uighurs (Muslims from China’s oppressed Xinjiang province) were held in the prison, even though interrogators in Afghanistan (where the prisoners were processed for Guantánamo) had already realized that they had no connection to al-Qaeda or the Taliban. The men were mostly seized by Pakistani villagers and sold to US forces after fleeing a settlement in Afghanistan, where they had ended up either because they had found it impossible to travel to Turkey, where some had hoped to find work, or because they nursed futile hopes of rising up against the Chinese government, whose oppression of the Uighurs was distressingly revealed to the world last July.

Over the years, the Uighurs became pawns in the Bush administration’s diplomatic relations with the Chinese government, but were mostly cleared for release after military tribunals and review boards concluded that they were innocent men, seized by mistake. Five were released in May 2006, given new homes in a refugee camp in Albania, the only country that would accept them, but the remaining 17 languished until their habeas corpus petitions reached a US court in October 2008, and Judge Ricardo Urbina granted their petitions and ordered their release into the United States. Judge Urbina concluded that their continued detention was unconstitutional, and that the US had an obligation to accept them because there were legitimate fears that they would be tortured if returned to China, and also because no other country had been found that was prepared to take them.

In response, the Bush administration appealed, and when President Obama came to power he maintained the same position. In February 2009, with the backing of Obama’s Justice department, the Court of Appeals refused to accept the implications of Judge Urbina’s position, reversing his ruling and concluding that questions relating to immigration — even those posed by men who had been wrongly imprisoned for eight years, and had won a habeas petition — were for the Executive, and not the court, to decide.

Judge A. Raymond Randolph (who defended every Bush decision about the Guantánamo prisoners that was subsequently overturned by the Supreme Court) and Judge Karen LeCraft Henderson held that it was within "the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms," despite dissent from the third judge, Judith W. Rogers.

Although Judge Rogers concurred in the judgment (because the government had, at the time of Judge Urbina’s ruling, not stated its position regarding matters relating to immigration), she was deeply critical of her colleagues’ decision to undermine the Supreme Court ruling in Boumediene v. Bush, in June 2008, which granted the prisoners constitutionally guaranteed habeas corpus rights. In her dissenting opinion, Judge Rogers reiterated that the Supreme Court held that prisoners in Guantánamo are "entitled to the privilege of habeas corpus to challenge the legality of their detentions," and that a "habeas court must have the power to order the conditional release of an individual unlawfully detained." She also declared:

Today the court nevertheless appears to conclude that a habeas court lacks authority to order that a non-"enemy combatant" alien be released into the country (as distinct from be admitted under the immigration laws) when the Executive can point to no legal justification for detention and to no foreseeable path of release. I cannot join the court’s analysis because it is not faithful to Boumediene and would compromise both the Great Writ as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States recognized by the Supreme Court to reside in the Congress, the Executive and the habeas court.

Within the administration, one man — White House Counsel Greg Craig — recognized that this was not only unjust, but also that hopes of persuading other countries to accept cleared prisoners who, like the Uighurs, feared repatriation because of the risk of torture, would be imperiled if America refused to take any of these men. Last spring, Craig was close to finalizing a plan to bring some of the men to live in the US, but President Obama capitulated to critics and abandoned the plan, and lawmakers — no doubt partly emboldened by the President’s willingness to cave in on matters relating to Guantánamo — subsequently passed legislation preventing Guantánamo prisoners from being brought to the US for any reason other than to face trials.

Following 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 men. Four were taken by Bermuda in June last year, another six accepted an offer by the Pacific island state of Palau, arriving there on October 31, and two others were taken in by Switzerland in January this year.

However, the five remaining men had turned down Palau’s offer, because of fears that it was too close to China for comfort, and also because of a recognition that, as the Uighurs in Palau have realized, they would be culturally and socially stranded in Palau, where there is no Uighur community.

Nevertheless, the offer by Palau was enough for the Supreme Court to turn down the Uighurs’ case in March. Although the Court vacated the February 2009 ruling by the Court of Appeals, denying access to the US for any Guantánamo prisoner (even those who have won their habeas petitions), the justices sent the case back to the lower courts, and on May 28, as through time had stood still for 15 months, the same Court of Appeals essentially reinstated its former opinion, ruling (PDF), as SCOTUSblog described it, "that the courts have no role to play in deciding whether any non-citizen will be allowed to enter the United States." As SCOTUSblog also explained, "Thus, the Circuit Court reinstated without change in substance a prior ruling that the Supreme Court had previously agreed to review."

In truth, it was always obvious that a second review by the Court of Appeals would fail, because the Uighurs’ circumstances have changed since February 2009. As Judges Randolph and Henderson noted, the men have received three resettlement offers in the last 16 months, including at least one offer from Palau and another from an unidentified country, and their attempts to persuade the court to rule on whether these offers were "appropriate" fell on deaf ears, with the judges pointing out that, as their original opinion indicated, "even if petitioners had good reason to reject the offers they would have no right to be released into the United States," and reasserting that "it is for the political branches, not the courts, to determine whether a foreign country is appropriate for resettlement."

This, disturbingly, went further in handing the government the power to decide what to do with the men than the government’s own lawyers asserted, as the Obama administration has always maintained that, "As a matter of course, the United States will obtain petitioners’ consent prior to resettlement," but it was consistent with a ruling delivered by the court in a second case relating to the Uighurs, which I discussed last September, in an article entitled, "Court Allows Return of Guantánamo Prisoners to Torture."

The judges also relied on the fact that, since February 2009, when they "had heard only from the Executive Branch … the Legislative Branch has spoken," and that, "In seven separate enactments — five of which remain in force today — Congress has prohibited the expenditure of any funds to bring any Guantánamo detainee to the United States." Denying the Uighurs’ claim that the statutes "violate the Suspension Clause of the Constitution" (which guarantees the right to habeas corpus, "unless when in cases of rebellion or invasion the public safety may require it"), the judges reiterated that the right to habeas does not guarantee the remedy of release into the United States, noting that "the statutes suspend nothing; petitioners never had a constitutional right to be brought to this country and released."

As in February 2009, it was left to Judge Rogers to dissent. Although she again concurred in the judgment, this time because of the offers of "appropriate" places of resettlement, she made a point of asserting that, although the men’s original claim, when no country had offered them resettlement, "has been overtaken by events," Judges Randolph and Henderson once more went further than was necessary in handing powers to the Executive branch. "[I]t is no longer necessary to opine as broadly as the majority does by reinstating its opinion of February 18, 2009," Judge Rogers wrote, adding, pointedly, "That opinion was overbroad to begin with, as pointed out in my separate concurrence, which must, as a result, also be reinstated, acknowledging certain new developments."

Although Judge Rogers’ partial dissent does not necessarily help the Uighurs, because she noted that, as a result of the resettlement offers, they "hold the keys to their release from Guantánamo," it is nevertheless significant that she reiterated her opposition to the majority’s "overbroad" assertion of Executive power, reminding her fellow judges that the question of whether "a habeas court may have the authority to order release is a separate question from whether that court is obligated to order release."

What will happen next, however, is at present unknown. With the retirement of Justice John Paul Stevens, it is unlikely that any further attempt to secure Supreme Court review will succeed, because Justice Stevens’ intended successor, Solicitor General Elena Kagan, who has been involved in the case on the government’s side, would have to recuse herself, and the court would therefore split 4-4, handing victory to the government.

As a result, the Court of Appeals ruling hurls the five remaining Uighurs back into a legal limbo that might only be resolved if they decide to revisit Palau’s offer, joining their compatriots, who, as I explained in a recent article, are grateful to Palau for helping them escape from Guantánamo, but are still anxious to find a country where they can truly begin to rebuild their lives, and are hoping that an appeal to Australia — lodged by President Johnson Toribiong, who has asked the Australian government to offer them permanent settlement — will be successful, and will allow them, as their lawyers pointed out to the Court of Appeals, to fulfill their "desire for citizenship, ownership of property, cultural affinity, and employment."

Nevertheless, eight and a half years after they were first seized by mistake, it is apparent that, in the cases of the Uighurs, political maneuvering — and not justice — dictates what will happen to them, and in this, all of those involved in the United States — the Obama administration, lawmakers in Congress, and the Court of Appeals in Washington D.C., with its penchant for upholding the kind of far-reaching claims for executive power that President Bush embraced — ought to be deeply ashamed. In this whole sordid story, only Special Envoy Daniel Fried, who has worked tirelessly to find new homes for the men, and former White House Counsel Greg Craig, who came close to rehousing the men on the US mainland, emerge with any integrity.

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 currently on tour in the UK), and, if you appreciate my work, feel free to make a donation.