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Innocent, but in limbo at Guantánamo
USA >
Justice
from the February 13, 2006 edition
 GUANTÁNAMO
BAY: US Army troops
guard about 500 detainees who have been captured
during the war in Afghanistan.
JOE SKIPPER/REUTERS .
Five Chinese Muslims, captured in Pakistan by
mistake, try to get the US Supreme Court to take their
case.
By Warren Richey | Staff writer of The Christian
Science Monitor
MIAMI – Five Muslim detainees from China's western
Xinjiang province are stranded in a legal no man's
land at the US terrorism prison camp at Guantánamo
Bay, Cuba.
They shouldn't be there. Even the US military has
found that the men, members of the besieged Uighur
ethnic group, are not enemy combatants. But their
ordeal in custody isn't over. Because they could face
harsh treatment back in China - and the US doesn't
want to set a precedent by granting them asylum here -
they sit in a barracks-like detention center waiting
for a country to give them a home.
Now, more than four years after their imprisonment by
US military forces, the men are asking the US Supreme
Court to examine their case. At issue is whether
individuals captured abroad can be held in military
detention indefinitely - even after the US government
has declared that they pose no threat to national
security.
"These men have been adjudged by the military to be,
essentially, mistakes. They are innocent men captured
by mistake by US forces abroad," says Neil McGaraghan,
a lawyer representing two of the detainees.
Though the five are not considered enemy combatants,
the men can be held indefinitely under the executive
branch's power to wind up wartime detentions in an
orderly fashion, government lawyers say.
"The US has no interest in detaining anyone any longer
than necessary," says Lt. Cmdr. Jeffrey Gordon, a
Pentagon spokesman. "We continue to detain the Uighurs
as we continue to work on their resettlement."
Their request comes after a federal judge in
Washington, ruled in December that the open-ended
detention was unlawful. But because of the murky legal
status of the prisoners at Guantánamo, he said he
lacked authority to order military commanders to
release them.
"The question ... is whether the law gives me the
power to do what I believe justice requires," US
District Judge James Robertson wrote in his Dec. 22
decision. "The answer, I believe, is no."
Lawyers for Abu Bakker Qassim and Adel Abdu Al-Hakim
took the unusual step of appealing directly to the
Supreme Court even before the issue has been presented
to a federal appeals court to prevent their clients
from spending any more time in prison than necessary.
In their petition, the lawyers say Judge Robertson
abdicated his judicial responsibility by failing to
order the release of their clients.
"Liberty can never be secure when the judicial branch
declares its impotence," writes Boston lawyer Sabin
Willett. "The ruling proclaims an executive with
unchecked power to seize innocents from around the
globe, transport them to United States territory, and
imprison them at its pleasure." If the lower court
ruling is allowed to stand, it will render Guantánamo
"a place and prison beyond law," Mr. Willett says.
The case arises at a time when Congress and the White
House seek to limit the opportunities for detainees at
Guantánamo to challenge their captivity in US courts.
The Detainee Treatment Act, signed Dec. 30, strips
federal judges of their authority to hear such
challenges, and narrows the types of cases that can be
heard by the federal appeals court in Washington.
Aspects of the law are being challenged at the federal
appeals court and in a pending Supreme Court case.
Lawyers for Mr. Qassim and Mr. Al-Hakim say the
Detainee Act doesn't apply to their case because
Robertson issued his ruling prior to Dec. 30. But it
does for others at Guantánamo classified as enemy
combatants - including other Uighurs captured with
Qassim and Al-Hakim, who say they were sold by
Pakistani bounty hunters to US forces for $5,000 each.
The government's brief to the high court is due Feb.
21. Government lawyers have sought to prevent a
judicial order to bring the Uighur detainees to a
US-based courthouse. Should that happen, they would be
entitled to seek asylum in the US as political
refugees from persecution by the Chinese government in
their homeland.
But because the Uighurs are held on a naval base
outside the jurisdiction of US immigration law, they
may not make the claim at Guantánamo, analysts say.
Roughly 1,000 Uighurs live in the US, says Nury Turkel,
president of the Uyghur American Association. "The
Uighur community in the United States has offered to
help with the individuals if the US government allowed
them to be released on US soil on an interim basis
while the government tries to find a permanent home,"
he says.
But government lawyers declined the offer because it
might open a door into the US for others held at
Guantánamo.
Robertson declined to order the government to bring
the men to the US. It is unclear whether the US
Supreme Court will agree to hear it.
The case raises questions, too, about the proper role
of the judiciary in checking presidential power,
analysts say.
"Judge Robertson's decision sets up a very real
constitutional crisis," says Mr. McGaraghan. "The
court's decision sets up this anomaly where it finds
executive branch actions unlawful, and yet decides
there is nothing it can do to remedy the unlawful
action."
Besides the Uighur detainees, four other non-enemy
combatants are being held at Guantánamo because of
human rights concerns if they are returned to their
home countries of Saudi Arabia, Algeria, Egypt, and
Uzbekistan.
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