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An Unlawful Detention -- The Uighurs Come to Washington

October 16, 2008

By Joanne Mariner
CounterPunch
October 14, 2008

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
CTC National Office 1425 René-Lévesque Blvd West, 3rd Floor, Montréal, Québec, Canada, H3G 1T7
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