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.