One year and two weeks ago, District Court Judge Ricardo Urbina ordered that 17 Uighur prisoners at Guantánamo be released into the United States. Muslims from China’s Xinjiang province, the Uighurs were seized and sold to US forces by Pakistani villagers in December 2001, after they had fled a settlement in the Afghan mountains, where they had ended up after fleeing Chinese oppression.
One of the men had secured a resounding court victory last June, when appeals court judges ruled that the government had failed to prove that he was an “enemy combatant,” involved in any way with either al-Qaeda or the Taliban, and in the wake of this ruling the government abandoned all pretense that any of other 16 men were “enemy combatants” either.
Last October, reviewing the habeas corpus petitions of these 17 men, Judge Urbina ordered their release into the United States for three compelling reasons: firstly, because they could not be returned to China, where there were fears that they would be subjected to ill-treatment, torture or worse; secondly, because no other country had been found that would accept them, despite the State Department scouring the globe; and thirdly, because it was unconstitutional for the United States to be holding innocent men at Guantánamo.
After years of indifference — or worse — on the part of the US authorities, who knew that these men were innocent almost from the moment that they were seized, this was a proud moment for US justice, and appeared to provide the remedy that the Supreme Court intended for prisoners at Guantánamo who were found to be innocent by a court, when the nation’s most important judges granted them constitutionally guaranteed habeas corpus rights in June 2008, in Boumediene v. Bush.
However, the Bush administration disagreed, appealing the ruling and persuading a notoriously Conservative bench of the Court of Appeals to rule that, on questions regarding the immigration of aliens into the United States (even those who had been wrongly detained in an experimental prison camp for over six years), the decision was in the hands of the Executive, and not the courts.
In what I regard as one of the weakest moments of the Obama presidency regarding Guantánamo, the Justice Department maintained the same line as the Bush administration in February this year, when the Court of Appeals reconvened en banc (with a full panel of judges) to make a final ruling, in which they officially reversed Judge Urbina’s principled decision to order the men’s release into the United States.
Had the government backed down, the four Uighurs who took up residence in Bermuda in June — where they soon demonstrated to any open-minded local that they were not, and had never been terrorists — would have performed the same remarkable task on the streets of Washington D.C. instead, and even Americans seduced by the Bush administration’s unsubstantiated rhetoric about the “terrorists” of Guantánamo would have been able to discover, first hand, that the Bush administration made mistakes at Guantánamo, and that innocent men were held.
Salahidin Abdulahad and Khalil Manut, photographed by Michelle Shephard for the Toronto Star, enjoy their new-found freedom by fishing in the ocean in Bermuda, June 2009.
Instead, lawmakers of both parties — spurred on by the dark rumblings of former Vice President Dick Cheney, who ghoulishly reappeared, encouraged by the mainstream media, who behaved as though he was still in power — reinforced the Court of Appeals’ ruling, passing legislation preventing the release of any Guantánamo prisoner (however innocent) onto the US mainland.
Betrayed by the Executive branch, Congress and the Court of Appeals, the Uighurs’ lawyers were obliged to appeal to the Supreme Court, which they did in April, asking that the justices address the following question (PDF):
Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush, has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.
In the meantime, the government found a new home in Bermuda for four of the men, and began the negotiations that, to date, appear to have secured the agreement of six of the remaining 13 men that they will be resettled on the remote Pacific island of Palau.
In June, the Supreme Court deferred a decision on the Uighurs — perhaps to allow the government time to find new homes for the men — but on Tuesday the justices unexpectedly agreed to hear the case, Kiyemba v. Obama, which, of course, touches on the very territory that they last visited in June 2008.
Oral argument in the case is not expected until next year, and in the meantime the government may find new homes for the remaining 13 Uighurs, rendering the case moot, but in briefs the battle lines have been drawn.
On the one hand is the government, endorsing Bush-era policies, and stating, via Solicitor General Elena Kagan, that the Uighurs’ remedy has been granted by a court, and that they are “free to go to any country that is wiling to accept them,” but that “there is a fundamental difference between ordering the release of a detained alien to permit him to return home or to another country, and ordering that the alien be brought to and released in the United States without regard to immigration laws.”
And for the Uighurs, there is Sabin Willett, a Boston-based attorney, and his team, who argue that the Court of Appeals’ ruling made a mockery of the habeas rights extended to the prisoners by the Supreme Court, and transformed Judge Urbina’s ruling into nothing more than an empty gesture. Willett explained that it made courts “powerless to relieve unlawful imprisonment, even when the executive brought the prisoners to our threshold, imprisons them there without legal justification, and — as seven years have so poignantly proved — there is nowhere else to go.”
In a statement issued via the Center for Constitutional Rights, he added, “We now have asked the Supreme Court to hear the Uighur cases, and rule that the writ of habeas corpus guarantees to the innocent not just a judge’s learned essay, but something meaningful — their release.”
As the eighth anniversary of the men’s wrongful capture approaches, they surely deserve nothing less.
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, published in March 2009, details about my film, “Outside the Law: Stories from Guantánamo” (launched in October 2009), and, if you appreciate my work, feel free to make a donation.