Free The Guantanamo Uighurs!

On Friday, court-watchers received some deeply depressing news - 33
pages of unconstitutional hogwash directed at the Supreme Court by
President Obama's Justice Department (PDF),
in which no stone of dubious legality was left unturned in the
administration's desperate and unprincipled attempts to mimic its
predecessors by preventing 17 Uighurs at Guantanamo from being
resettled in the United States.

This is a long-running saga, which I have reported at length over
the last year, but it centers on two conflicting court rulings. The
first, a great day for American justice, took place last October, when
the US government had given up all pretense that the Uighurs were
"enemy combatants." This occurred after the government had suffering a withering court defeat
in June, when a group of admirable judges compared its attempts to
marshal evidence to a nonsense poem by Lewis Carroll, the author of Alice's Adventures In Wonderland, and last October, in the District Court in Washington D.C., Judge Ricardo Urbina followed up
on this historic decision by ruling that, because the Uighurs'
continued detention in Guantanamo was unconstitutional, because they
were at risk of torture if returned to China, and because no other
country had been found that was prepared to risk the wrath of the
People's Republic by emulating Albania, which accepted five other Uighurs in 2006, they were to be moved to the United States, where communities in Washington D.C. and Tallahassee, Florida, had prepared detailed plans for their resettlement.

The second ruling, on a day as bleak as Judge Urbina's was
inspiring, was delivered, in response to a groundless appeal by the
Bush administration's Justice Department, by two appeals court judges,
A. Raymond Randolph and Karen LeCraft Henderson, who reversed Judge Urbina's ruling
three months ago. Noticeably, both Henderson and Randolph (who has the
dubious distinction of having supported every position maintained by
the Bush administration regarding Guantanamo that was later overturned
by the Supreme Court) ignored the dissent
of the third judge, Judith W. Rogers, who argued that the government's
case "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." Judge Rogers also maintained
that, in Boumediene v. Bush
(last June's ruling that granted the Guantanamo prisoners habeas
rights), the Supreme Court not only granted the 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

In presenting the government's brief to the Supreme Court, Solicitor
General Elena Kagan had the nerve to claim that the Uighurs "have
already obtained relief," explaining, "They are no longer detained as
enemy combatants, they are free to leave Guantanamo Bay to any country
that is willing to accept them, and in the meantime, they are housed in
facilities separate from those for enemy combatants under the least
restrictive conditions practicable."

Cynics might note that living in Guantanamo, under whatever
conditions, does not constitute the "relief" that the Supreme Court had
in mind last June, but this did not deter the Solicitor General, who
continued to channel the Bush administration by maintaining that the
court of appeals "properly recognized that whether to admit an alien
into the United States presents a question wholly distinct from issues
concerning detention abroad - and a question that is reserved to the
political Branches." She added that the Supreme Court "has repeatedly
stressed that whether to allow an alien into the United States is a
sovereign prerogative that requires the consent of the political

Moving on, the Justice Department entered a previously uncharted
realm of callousness when its brief dismissed the reasons that the
Uighurs cannot be returned to China - because of international treaties
preventing the return of foreign nationals to countries where they face
the risk of torture - by pretending that it was their own choice. The
Uighurs, the government stated, "would like the federal courts to order
that they be brought to the United States, because they are unwilling to return to their home country (emphasis added). But they have no entitlement to that form of relief."

In an attempt to paint a rosy picture of the Uighurs' current
conditions of confinement, the Justice Department "sought to persuade
the Court," as SCOTUSblog
put it, that the Uighurs "are not really being detained any longer."
Their "continued presence at Guantanamo Bay," the brief stated, "is not
unlawful detention, but rather the consequence of their lawful
exclusion from the United States, under the constitutional exercise of
authority by the political Branches, coupled with the unavailability of
another country willing to accept them." The brief added that, because
their exclusion from the US "is constitutionally valid, their resulting
harborage at Guantanamo Bay is constitutional as well."

Elsewhere, the government also defended another ad-hoc policy of the
Bush administration: the so-called "wind-up" period of indefinite
duration, while efforts to resettle prisoners in third countries are
underway. Rather disturbingly, the brief did not specify how long this
"wind-up" period might last, but noted - with another burst of
callousness towards men already deprived of their liberty for seven and
a half years - that, although it would be "a reasonable period of
time," previous examples of what was regarded as "reasonable" lasted
for "several years."

Whether the Supreme Court will agree with the picture painted by the
Justice Department is another matter, as it differs substantially from
the interpretation offered by both Judges Urbina and Rogers, when they
were given the opportunity to determine what the Court had intended
when it granted the prisoners habeas rights in Boumediene.
The Uighurs' lawyers will now respond to the Justice Department's
brief, and the Supreme Court will decide whether to hear the case. As
SCOTUSblog explained, "It is possible, though not a certainty, that the
Court will make up its mind for or against review before recessing for
the summer late next month," adding, "If the Court accepts the
government's view, either by denying review or by granting review and
ruling against the detainees' release, the Uighurs' fate will depend
entirely upon efforts by the State Department to find another country
willing to accept them - a prospect that appears to be diminishing,
especially in foreign governments' negative reaction to heavy political
resistance in Congress to resettlement of any Guantanamo prisoner
inside the US."

This is an important point, and, sadly, it reveals nothing more than
an administration that is rapidly losing its immediate post-election
advantage by shifting in the wind and, as a result, giving more, and
not less power to the cowardly or cynical politicians
who have leapt on President Obama's promise to close Guantanamo - as
well as plans to move prisoners to the US mainland, and to release the
Uighurs - with a despicable dose of NIMBYism (Not In My Back Yard) that
demonstrates cynical political maneuvering at its worst.

As Eric Holder tours Europe looking for new homes for some of the
prisoners that the administration's inter-departmental review has
cleared for release (who, like the Uighurs, cannot be repatriated
because their home countries have notoriously poor human rights
records), he is increasingly meeting resistance from countries whose
governments argue, with some justification, that they cannot be
expected to help out unless the US is also willing to play its part by
accepting prisoners.

Without firm action by the administration, President Obama may just
find that he has been outplayed, and that he will not only hand victory
to the NIMBYists - who would like nothing better than to see Guantanamo
stay open forever - if he is unable to close the prison by January
2010, but will also undermine his reputation abroad, and, in
particular, in the Muslim world, where undoing the damage of the Bush
years is critical.

My hope is that the Supreme Court will accept the case, and will
rule in the Uighurs' favor, but if that doesn't happen, Obama needs to
find the courage to resist the shrill opportunism of some of his least
principled colleagues, and to order the Uighurs' release into the
United States, resurrecting the spirit of justice that prevailed last
October, when Judge Urbina stated, "I think the moment has arrived for
the court to shine the light of constitutionality on the reasons for
detention. Because the Constitution prohibits indefinite detentions
without cause, the continued detention is unlawful."

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