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From Gitmo to
the U.S.: How 17 Uighur Prisoners Could Be Let Into
the United States
By Andy Worthington, AlterNet. Posted October 11,
2008.
The story behind last
week's stunning ruling on the fate of 17 Uighur
prisoners at Guantanamo Bay.
In an extraordinary and unprecedented ruling in a
U.S. District Court, Judge Ricardo Urbina has
ruled that 17 wrongly imprisoned Chinese Muslims
at Guantánamo must be allowed entry to the United
States. It is, as the media has been reporting,
the first time that a U.S. court has directly
ordered the release of a prisoner at Guantánamo,
and the first time that a foreign national held at
the prison has been ordered to be brought to the
United States. It is also a resounding blow to the
administration's claims that it can seize anyone
it wishes as an "enemy combatant," and hold them
indefinitely, even if there is no evidence
whatsoever to support their detention.
The road to Guantánamo
The 17 men -- Uighurs (or Uyghurs) from Xinjiang
province in the People's Republic of China (known
to the Uighurs as East Turkestan) -- have been a
problem for the authorities since they were
captured nearly seven years ago. Refugees from
Chinese oppression, 13 of the men had, by accident
or design, made their way to a run-down hamlet in
Afghanistan's Tora Bora mountains, where they
spent their time making the place habitable, and
indulging in futile dreams of rising up against
their historic oppressors. After the U.S.-led
invasion of Afghanistan in October 2001, they were
targeted in a U.S. bombing raid, in which several
of their companions died. The survivors made their
way to the Pakistani border, where they were
welcomed by villagers, who betrayed them soon
after, selling them for a bounty to U.S. forces.
The other four Uighurs were caught up in similarly
bleak scenarios. One had fled from death and
destruction in Kabul, and was caught as he
attempted to cross the Pakistani border, and three
were randomly seized in northern Afghanistan and
imprisoned with several hundred foreign Taliban
fighters in Qala-i-Janghi, a fort run by General
Rashid Dostum, one of the leaders of the Northern
Alliance. When Alliance troops, with support from
U.S. and British Special Forces, began tying the
men's hands behind their backs, some of the
Taliban soldiers thought that they were about to
be executed, and rose up against their captors. In
the ensuing massacre -- involving ground troops
and bombing raids -- the majority of the prisoners
were killed, but the Uighurs, along with 84
others, had stayed in the basement, where they
survived death by bombing, fire and flooding, and
they were part of a group of around 50 survivors
who were eventually transferred to Guantánamo.
According to Chris Mackey, the pseudonym of a
senior interrogator at the US-run prisons in
Kandahar and Bagram, which were used to process
the prisoners for Guantánamo, U.S. forces realized
almost immediately that the men were not involved
with al-Qaeda, but decided to hold them for their
supposed intelligence value. In his book The
Interrogators, Mackey explained that their arrival
triggered a frenzy of activity in the upper
echelons of the administration. "The requests for
follow-up questions flooded in from Washington,"
he wrote, "and every query that came in made it
clear that U.S. intelligence was starting from
practically zero with this group."
Twisted tribunals
Transferred to Guantánamo, so that the authorities
could continue milking them for information about
China, the U.S. authorities nevertheless persisted
in identifying the men with al-Qaeda and the
Taliban, by claiming that they were associated
with the East Turkestan Independence Movement (ETIM),
a Uighur resistance group. And when the
administration sought support from China for its
invasion of Iraq -- or, at least, a lack of
opposition -- it obligingly designated ETIM a
terrorist organization, and allowed Chinese
interrogators to visit Guantánamo, where,
according to several of the prisoners, they
received threats that they would be killed if they
ever returned to China.
In 2004, when the Supreme Court ruled that the
prisoners had habeas corpus rights (in other
words, the right to challenge the basis of their
detention in a federal court), the
administration's cynical response was to introduce
military review boards at Guantánamo -- the
Combatant Status Review Tribunals (CSRTs) -- to
assess whether, on capture, the prisoners had been
correctly designated as "enemy combatants," who
could be held without charge or trial. This was a
hideously unjust process, as the prisoners were
not allowed legal representation, were confronted
with often spurious allegations (frequently
produced through the torture or coercive
interrogations of other prisoners), and were also
prevented from either seeing or hearing the
"classified evidence" against them, which could
also have been produced in the same unjust,
unprincipled, and often illegal manner.
Lt. Col. Stephen Abraham, a veteran of U.S.
intelligence who worked on the tribunals, caused a
stir last year when he explained how the
information used in the tribunals frequently
consisted of intelligence "of a generalized nature
-- often outdated, often 'generic,' rarely
specifically relating to the individual subjects
of the CSRTs or to the circumstances related to
those individuals' status," and how the entire
process was, essentially, designed to rubber-stamp
the prisoners' prior designation as "enemy
combatants." As a result, only 38 of the 558
prisoners were cleared for release after the
tribunals, and on a few occasions, when the result
of the tribunal displeased the administration,
further tribunals were held until the desired
result was achieved.
This happened to at least two of the Uighurs,
Anwar Hassan and Hammad Mohammed, but others were
among the lucky 38 who were found to be "No Longer
Enemy Combatants" after the CSRTs, and five of
these men were finally released in May 2006, when
Albania stepped forward as the only country in the
world prepared to risk the wrath of China by
giving the men a new home -- albeit one with no
Uighur community, no work prospects, and no chance
for them ever to be reunited with their families.
While these men struggled to survive in Albania,
the other Uighurs -- who were all eventually
cleared for release after further review boards --
remained in severe isolation in Guantanamo. Like
the majority of other cleared prisoners from human
rights-abusing regimes (including Algeria, Libya,
Tunisia and Uzbekistan), few of the men were held
in Camp 4, the only block that allowed the
prisoners to share dorm-like facilities, and the
majority continued to be held in maximum security
cellblocks for 22 or 23 hours a day, prohibited
from meeting each other and with little, if any
outside stimulation to break the corrosive
monotony of their existence, or their fears that
they would never be released or would, in fact, be
surreptitiously returned to China.
In March, a letter from Guantánamo by one of the
prisoners, Abdulghappar, described the suffering
of the men in painful detail. He wrote: "Being
away from family, away from our homeland, and also
away from the outside world and losing any contact
with anyone is not suitable for a human being, as,
also, is being forbidden from experiencing natural
sunlight and natural air, and being surrounded by
a metal box on all sides." He also reported that
one of his compatriots had embarked on a hunger
strike in protest, but was being punished for it,
and asked, "In the U.S. Constitution, is it a
crime for someone to ask to protect his health and
to ask for his rights? If it does count as a
crime, then what is the difference between the
U.S. Constitution and the Communist Constitution?"
Empty evidence
This impasse over the Uighurs' plight was finally
broken in June, after the Supreme Court, dismayed
that the habeas rights it had granted the
prisoners in 2004 had been removed in subsequent
legislation, stamped its authority by ruling that
the prisoners had constitutional habeas rights.
This unblocked a queue of contested habeas cases
that had been on hold pending the Supreme Court's
ruling, and when the first of the cases, Parhat v.
Gates, reached the Court of Appeals in Washington,
the judges' explosive ruling led directly to Judge
Urbina's historic ruling on Tuesday.
The three Appeal Court judges -- noticeably, two
Conservatives and a Liberal -- ruled that the
CSRT's decision that Huzaifa Parhat, one of the
Uighurs, was an "enemy combatant" was "invalid,"
and "directed the government to release or
transfer" him (or to hold a new tribunal
"consistent with the Court's opinion"). In a
savage denunciation of the CSRT decision, they
lambasted the government for the flimsy and
unsubstantiated allegations and associations it
used to conclude that Parhat was an "enemy
combatant," and in a memorable passage compared
the government's argument that its evidence was
reliable because it was mentioned in three
different classified documents to a line from a
nonsense poem by Lewis Carroll, the author of
Alice's Adventures in Wonderland. As Chief Judge
Merrick B. Garland explained, "Lewis Carroll
notwithstanding, the fact the government has 'said
it thrice' does not make an allegation true."
With the Parhat ruling, the government's attempts
to insist that any of the Uighurs were "enemy
combatants" were clearly no longer tenable. At a
hearing in August, when the idea was first floated
that they should be released into the United
States, Judge Urbina "hinted," as the Washington
Post described it, "that he was intrigued by the
detainees' proposal," and stated, "I don't
understand why that would not be a viable option."
The Justice Department did not respond directly to
Judge Urbina's comments, but its lawyers argued in
court that only the President had the authority to
allow the men into the United States. However, the
Post explained that, although the issues were
"complex," legal scholars "generally disagreed
with the government's position, saying the judge
has the ultimate authority" to decide whether to
bring the men to the U.S. mainland.
The Justice Department also insisted that the
judge was legally prevented from ordering the
Uighurs' entry into the U.S. if they had ties to
terrorist groups. As Parhat v. Gates showed,
however, neither Huzaifa Parhat nor, by extension,
the other 12 men seized with him had ties to
terrorist groups, and as the weeks passed the
government fatally undermined its own arguments:
first it announced, in belated response to the
Parhat ruling, that it would not arrange a new
trial for Parhat and that it would "serve no
purpose" to continue trying to prove that he was
an "enemy combatant"; then it did the same for
four of his compatriots; and on September 30 it
added the last 12 Uighurs to its list of
non-combatants.
Welcome to America
As a result, Judge Urbina came to work on Tuesday
facing a stark but simple decision: to obey the
U.S. Constitution or to turn his back on all he
had been brought up to believe in.
He chose to obey the Constitution. Ordering the 17
men to be brought from Guantánamo to the courtroom
on Friday, he indicated that he would release them
to supporters in the United States -- in Florida,
and in the Washington D.C. area -- who would look
after them while the government worked out if it
could come up with another solution that did not
involve their continued imprisonment.
"I think the moment has arrived for the court to
shine the light of constitutionality on the
reasons for detention," Judge Urbina stated,
adding, "Because the Constitution prohibits
indefinite detentions without cause, the continued
detention is unlawful."
He also explained, as the New York Times described
it, that "the men had never fought the United
States and were not a security threat," and
impatiently rejected a government request to stay
his order to permit an immediate appeal. "All of
this means more delay," he said, "and delay is the
name of the game up until this point." Drawing on
the historic right of a judge to demand that a
prisoner be brought before him (the core, in fact,
of habeas corpus, which means, literally, "you
have the body"), he added, "I want to see the
individuals."
When the government suggested that immigration
officials might detain the men on arrival in the
United States, Judge Urbina snapped, "I do not
expect these Uighurs will be molested by any
member of the United States government. I'm a
federal judge, and I've issued an order."
Crucially, as the Times put it, he "underscored
the significance of his ruling with repeated
references to the constitutional separation of
powers and the judiciary's role," rejecting
arguments put forward by the Justice Department as
"assertions of executive power to detain people
indefinitely without court review," which, he
said, were "not in keeping with our system of
government."
As the judge rose to leave the bench, the crowded
courtroom burst into applause. Members of the
Washington D.C. Uighur community, who settled here
in the 1980s, when they fled Chinese oppression
and were regarded as anti-Communist heroes, had
come to lend support, and their offers of help --
and those offered by community leaders from
Tallahassee, Florida, who have also been involved
in plans to welcome the Uighurs -- were credited
with helping the judge make his decision.
Nury Turkel, a D.C.-based aviation lawyer,
explained, "Our community said, 'We are here to
help. Release them into our custody.' We have
people offering them places to stay, English
training, employment. We don't want anyone to
think they will be a burden on society."
Although the government immediately pledged that
it would appeal Judge Urbina's ruling, and the
White House's press secretary, Dana Perino,
claimed, somewhat hysterically, that it "could be
used as precedent for other detainees held at
Guantánamo Bay, including sworn enemies of the
United States suspected of planning the attacks of
9/11, who may also seek release into our country,"
no decision had been made by the close of business
on Wednesday.
As CNN reported, the government had filed an
emergency motion, reiterating its argument that
"only the executive branch, not the courts, may
decide whether to admit an alien into the United
States," and insisting that Judge Urbina's ruling
"threatens serious harm to the interests of the
United States and its citizens by mandating that
the government release in the nation's capital 17
individuals who engaged in weapons training at a
military training camp." In response, as the
Associated Press reported, the prisoners stated
that Judge Urbina had "made the right decision in
ordering their release since they are no longer
considered enemy combatants," and their lawyers
argued that delaying their release would mean that
"the government would prolong by months, and
perhaps years, an imprisonment whose legal
justification it has conceded away."
In the hope that justice will prevail, I leave the
final word -- for now -- to Sabin Willett, a
Boston-based lawyer who represents some of the
Uighur prisoners. Willett and his colleagues have
campaigned assiduously for their clients, and
after arguing the case before Judge Urbina, he
stated, with a dignity sorely lacking from the
government's rhetoric, "In the history of our
Republic, the military never imprisoned any man so
harshly, and for so long, let alone men who are
not the enemy. We have broken faith with the rule
of law, and been untrue to the generosity of
spirit that is our national character."
Early on the morning of October 9, Reuters
reported that a federal appeals court temporarily
blocked the Uighurs' release, granting the
government a stay until October 16, in order to
give the court more time to consider the dispute.
The three judges added, however, that the stay
“should not be construed in any way as a ruling on
the merits” of the government's request.
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