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Uighurs Ordered Released

By Jack M. Balkin

For more than six years, the United States has detained seventeen Chinese citizens of Uighur heritage at the Guantanamo Bay Naval base. Following the ground-breaking decision of the U.S. Court of Appeals for the District of Columbia Circuit in Parhat, which I discussed here, the U.S. government finally conceded that the Uighurs are not enemy combatants, and that therefore Congress has not authorized their indefinite detention. The Uighur detainees had nothing to do with the attacks of 9/11. There is no evidence that they ever participated in, or planned, or even supported, any hostile action against the United States or its allies. They are not part of al Qaeda or the Taliban, or any other nation or organization that "planned, authorized, committed, or aided" the 9/11 attacks. They have never engaged in any hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).

And yet the United States insists that it can continue their detention at GTMO indefinitely, because it cannot send them back to China (where they likely would be tortured) and has been unable to find another nation willing to take them in.

Today Judge Ricardo Urbina ordered that the government must permit the 17 Uighur detainees to be released into the United States -- with conditions that the court will specify next week -- and that the transfer out of military detention must occur by this coming Friday morning.

The most remarkable thing about this remarkable case -- the principal factor that led to the judge's decision, I think -- is that the government has still failed to provide any plausible explanation for why the 17 detainees should not be allowed to live within the United States until such time as the government can find a foreign nation that would accept them.

The judge asked the question flat-out today:

THE COURT: What is the security risk to the United States should these people be permitted to live here? What is it? You've had seven years to study this issue. What is the security risk?

The DOJ lawyer's response was that the Uighurs had "received military type training . . . in order to commit insurrection and to take up arms against another country," namely, China. This is the principal theme, as well, of the government's motion for a stay that it filed this evening with the court of appeals -- that the detainees "trained for armed insurrection against their home country"; that they sought to wage warfare against the Chinese government "and continue to harbor hostile views toward China."

Of course, there's not much threat even to China if the Uighurs are to temporarily reside here in the United States, under the court's supervision. But that's somewhat beside the point, since the judge's reasonable question was whether there was any security threat to the United States. And the government offers not even a theory, let alone any evidence, of such a threat. (In its pleading with the court of appeals this evening, the government states, without any supporting evidence or explanation at all, that "compliance with the district court's order would pose a serious security risk.")

Several pages later in the transcript of today's hearing, the truth seeps out: On page 26 of the transcript, the DOJ lawyer says: "Certainly there would be concerns about our relationship . . . with other countries, say, for example, China, if the Court put the Government in a position of not being able to speak with one voice."

That is to say, allowing the Uighurs to live freely in the U.S. will upset China.

And perhaps it will. But as the Uighurs' counsel Sabin Willett noted, it's one thing to deny someone entry into the U.S. on the basis of such diplomatic considerations where they are voluntarily seeking such entry. But "I'd never heard anyone suggest before that our relationships with other nations are a lawful basis to hold somebody in a prison." Or as the judge simply put it, "an alternative legal justification has not been provided for continued detention."

More from Judge Urbina on the atypical nature of the government's asserted authority in this case:

Normally, . . . the Court would have no reason to insinuate itself into a field normally dominated by the political branches; however, the circumstances now pending before the Court are exceptional. The Government captured the Petitioners and transported them to a detention facility where they will remain indefinitely. The Government has not charged these petitioners with a crime and has presented no reliable evidence that they would pose a threat to U.S. interests. Moreover, the Government has stymied its own efforts to resettle the Petitioners by insisting, until recently, that they were enemy combatants, the same designation given to terrorists willing to detonate themselves amongst crowds of civilians.

[NOTE: In its motion for a stay, DOJ asserts that the Uighurs engaged in training at a military camp "sponsored by the Taliban." Such a fact would not affect the legal question here; but in any event, it is fairly audacious for DOJ to assert this claim here, since the court of appeals has already ruled that the government failed to provide any reliable evidence that the East Turkistan Islamic Movement (one of whose members was allegedly a leader at the camp) -- let alone the detainees -- was associated with the Taliban.]

Full post as published by Balkinization on October 07, 2008 (boomark / email).