Six-and-a-half years and countless court rulings after the Bush Administration first began bringing prisoners to Guantánamo, a milestone has finally been reached.eached. In a landmark decision, a federal court did more than criticize the Bush Administration’s detention policies: It ordered the release of a group of detainees.
The 17 Muslim Uighurs who were the subject of District Judge Ricardo Urbina’s ruling have been held at Guantánamo since 2002. Although they were cleared for release in 2004, they could not be returned to China, their country of origin, for fear that they would be incarcerated and tortured upon return. Nor would the Bush administration agree to bring them to the United States.
The Administration managed to resettle five Uighur detainees in Albania in 2006, but-despite what officials have claimed were vigorous efforts-it was unable to convince other countries to accept the remaining 17.
Some governments may have feared retaliation from China, since Beijing has made clear its desire to repatriate the Uighurs, whom it considers dangerous separatists. Other governments may have wondered why, if the United States was convinced resettlement was necessary, the U.S. government wasn’t willing to set an example by taking in a few Uighurs itself.
Time went by, dozens of other detainees went home, but the 17 Uighurs held at Guantánamo remained in limbo. Although the Supreme Court ruled in June that detainees at Guantánamo are protected by the Constitution, the practical impact of the decision on the Uighurs’ lives was nil.
Yesterday, that changed. “After detaining 17 Uighurs . . . for almost seven years free from judicial oversight, the moment has arrived to shine the light of constitutionality,” Judge Urbina told a packed courtroom.
The judge gave an order for the men’s release on parole into the United State, indicating that they should be brought to court, in Washington, for a further hearing this Friday. He firmly denied the government’s request for a delay.
What Justice Requires
There is little dispute about how the Uighurs (pronounced “wee-gurs”) ended up at Guantánamo. Having fled China, the men were living together in a camp in Afghanistan when the US-led bombing campaign began in October 2001. They escaped into the mountains, and they were turned over to Pakistani authorities who, in turn, handed them over to the United States-reportedly for large bounties. The men have been in US custody ever since.
Without claiming that the Uighur detainees pose any threat to Americans, the U.S. government has claimed that they are “affiliated” with the East Turkestan Islamist Movement, which the Bush Administration designated as a terrorist organization in August 2002. The Uighurs have denied these associations, and also assert that the claim is irrelevant since the group was not deemed terrorist until well after they were taken into captivity.
Round one of the Uighurs’ federal court battles came in December 2005. In a 12-page opinion that presaged the views expressed by Judge Urbina yesterday, District Judge James Robertson decried the continued detention of two Uighurs who had been found not to be combatants.
“The detention of these petitioners has by now become indefinite,” Robertson explained. “This indefinite imprisonment at Guantanamo Bay is unlawful.”
Judge Robertson, however, said that he did not have the power to order the release of the two prisoners-even though he recognized that release was what “justice requires.” The two Uighurs were among the five who were later resettled in Albania.
Relying on the Chinese Government’s Say-So
Litigation in the other Uighur cases continued. In June 2008, in the immediate wake of the Supreme Court’s ruling on Guantánamo, a federal appeals court found that another of the Uighur detainees, Hazaifa Parhat, had been improperly classified as an “enemy combatant.” Reviewing the evidence that the military used to justify Parhat’s combatant designation, the court seemed appalled at how thin it was.
It noted that much of the evidence was hearsay whose reliability was impossible to gauge. It raised concerns, moreover, that the source of some of this hearsay was the Chinese government, which, the court explained dryly, “may be less than objective with respect to the Uighurs.”
But while the court was quite critical of the government’s lack of fairness , it did not order Parhat’s release. Instead, the court gave the government a choice: It could reassess Parhat’s status in a new proceeding, release him, or transfer him out of Guantánamo. In response to the ruling, the government declared that Parhat-as well as the other 16 Uighur detainees-were “no longer enemy combatants.”
The change in combatant status did not change the Uighurs’ status as prisoners. The government still maintained that it could continue to hold the men at Guantánamo until another country was willing to accept them.
An Emergency Appeal
At the hearing, Justice Department attorneys argued that the U.S. courts have no power to order the executive to transfer detainees from Guantánamo to the United States.
But if a court has the power to determine that someone is being unlawfully detained-and the Supreme Court recently ruled that the courts do have this power-that court must also have the power to order a remedy to the unlawfulness. Throwing up one’s hands, and claiming helplessness-as Judge Robertson did three years ago-is an unjudicial response.
Judge Urbina did exactly what judges are supposed to do. Faced with an ongoing situation of illegality, he ordered that it be stopped. The Justice Department is filing an emergency appeal.
JOANNE MARINER is a human rights attorney.