Whither the Uighurs?
Now that the U.S. Supreme Court has decided not to join the battle over the fate of seven ethnic Uighurs imprisoned at Guantanamo Bay, the question remains: What to do with other detainees who were told they were no longer prisoners but who fear going back to their homelands?
The high court twice passed on the Chinese Muslims, who say they have been stranded and trapped since 2002, yet who, paradoxically, have also been told they are no longer detainees of the U.S. government.
The Uighurs say returning to China would lead to arrest, torture and possibly execution because of their religion. The Chinese government has been suppressing outbursts in the region over the last two years.
Originally there were 23 members of the Uighur Muslim minority from western China imprisoned at the naval base in Guantanamo Bay, Cuba, says their lawyer, P. Sabin Willett of the Boston office of Bingham McCutchen. The men say they fled China to Afghanistan and then to Pakistan, where they were captured. But since their reclassification, 16 Uighurs have resettled in other countries. Two of the remaining detainees have accepted offers of resettlement from Switzerland; the other five declined offers from the Pacific island nation of Palau.
In a controversial 2008 opinion, U.S. district judge Ricardo M. Urbina in Washington, D.C., decided he had the authority to order the Uighurs into his courtroom and then freed into the U.S. But the U.S. government and some legal experts have maintained that the U.S. can’t simply allow the detainees entrance into this country outside existing immigration laws.
In 2009, the U.S. Court of Appeals for the District of Columbia Circuit reversed Urbina, saying that only the political branches of government—the executive and legislative—have the power to admit foreigners into the U.S. or exclude them.
In March, the Supreme Court was scheduled to hear oral arguments in the case, Kiyemba v. Obama. The issue was whether federal judges have the power to release the detainees into the United States when they have no other place to go.
But before the case was heard the court issued an unsigned per curiam opinion vacating the circuit court decision. The Uighur resettlements and resettlement offers, the court said, had created a “change in the underlying facts.” Without instructions or further comment, the matter was returned to the lower courts for another look.
The question now, lawyers say, is what happens to other detainees who say they have nowhere to go? Advocates insist that a judge should make such a ruling.
“The point that’s been sidestepped by the Supreme Court is the most fundamental point that exists in habeas: What is the remedy?” Willett says.
“The remedy in habeas is to walk out of the courtroom. It doesn’t matter if he’s an alien or an immigrant. If the prisoner wins, he walks out of the courtroom,” says Willett. “The immigration authorities can then try to remove him and they may succeed. There’s a whole bucket of law relating to that, but they shouldn’t be held in a military prison.”
Jennifer Chang Newell, a staff attorney with the American Civil Liberties Union’s Immigrants’ Rights Project in San Francisco, says that the law of habeas corpus requires that a judge be able to hear this kind of case and decide upon an appropriate remedy.
“The habeas corpus suspension clause is one of the fundamental rights in the Constitution; it means the executive branch can’t detain people without a reason,” says Newell, who filed an amicus brief on behalf of the petitioners. “[At least] the Supreme Court order has eliminated a decision that failed to adequately respect the power of the federal courts to order a remedy for unlawful detention.”
But some experts think the D.C. Circuit had it right.
“These are aliens with no ties to the United States and terrorist affiliations; they are therefore inadmissible into the United States,” says David Rivkin, a Justice Department official during the Reagan administration who has been following the case.
“It would be an inappropriate exercise of judicial power to order their admission into this country under these circumstances.”
The Obama Justice Department agrees. In court filings the government maintained that the D.C. Circuit “was correct when it held in its initial decision that pe titioners have no right to court-ordered release into the United States outside the framework of the immigration laws.”
The DOJ also said it was limited in its resettlement efforts by statutes prohibiting the use of U.S. funds to release or transfer Guantanamo detainees into the U.S., except in cases of transfer for prosecution or detention during legal proceedings.
Rivkin, now a partner in the Washington, D.C., office of Baker & Hostetler, says the high court’s inaction may show that the Uighurs were likely to lose their case anyway. “This is a significant development because it demonstrates at this point in time there wasn’t even a potential working majority on the Supreme Court to seriously entertain the … claims,” he says.
“There was a realization, among a substantial number of justices, that if this case proceeded, the court was extremely unlikely to grant the relief that the Uighurs were seeking,” Rivkin says.
A SHIFTING LANDSCAPE
The Uighurs’ legal battle began in 2005, when the detainees sought habeas corpus relief under the suspension clause of the U.S. Constitution, but the cases were stayed. In the meantime, Congress enacted the 2005 Detainee Treatment Act and the 2006 Military Com missions Act, which limited detainees’ rights to judicial review.
In June 2008, the high court ruled 5-4 in Boumediene v. Bush that foreign terrorism suspects held at Guantanamo Bay have the constitutional right to challenge their detention in federal court.
After Boumediene, the stays were dissolved and the cases consolidated. The U.S. government conceded that the detainees were not enemy combatants, who could be held indefinitely.
Legal observers and advocates say that the questions being asked in Kiyemba were inevitable in the wake of Boumediene. Some human rights advocates were hopeful that the Supreme Court would concede to federal judges the power to both hear the cases of alien detainees and release them into the U.S. in the absence of any other appropriate remedy.
“This case was hopefully going to answer the question whether Boumediene has teeth,” says Chuck Roth, director of litigation for the National Immigrant Justice Center in Chicago. “If Boumediene in fact gives courts power over Guantanamo detainees, then it’s axiomatic that the courts have the power to bring them into courtrooms and, once they are there, to order their release if appropriate.”
But in a brief to the Supreme Court, U.S. Solicitor General Elena Kagan had written that the court overstepped its bounds by ignoring well-established immigration law barring the Uighurs’ entrance into the U.S.
When the detainees were offered the possibility of resettling in a third country, the court decided to allow the Uighur situation to solve itself. “No court has yet ruled in this case in light of the new facts, and we decline to be the first to do so,” the court’s per curiam order said.
The Uighurs returned to the supreme court a few weeks later in Kiyemba II, with other detainees joined as plaintiffs. Among them was Ahmed Belbacha, who claimed he will be punished if he returns to his native Algeria. The court denied cert.
Since the appellate court ruling has now been vacated, Willett says the appeals court should send the Uighur case back to the lower court to make an “appropriate evidentiary record,” including “the facts and circumstances surrounding the options, if any, currently available to the petitioners for release other than from the courthouse.”
But Rivkin says the high court’s decision to send the case back to the lower level may signal a new reluctance to involve the courts in what are diplomatic and national security decisions.
“The broader implication, reading the tea leaves, is that the period of judicial activism that has been unleashed after 9/11 may well be coming to an end,” Rivkin says. “There was a realization that further judicial engagement that results in an override of a judgment by the political branch is not appropriate, and that’s a good thing.”
As the high court noted, many found places to call home after they were determined to be noncombatants. One went to Saudi Arabia, five to Albania, six to Palau and four to Bermuda, where they work at a golf club, according to Willett. With two of the remaining seven settling in Switzerland, the scrutiny goes to the remaining five and why they refused their offer to resettle on Palau.
The Justice Department, holding fast, says that if the Uighurs were “to express interest, the United States would again discuss resettlement with the government of Palau.”
But Willett says the focus may be wrongly placed. Why should the detainees be forced to resettle in a place they do not want to live?
“The remand just means further delay and a sidetracking into a contest over Palau,” Willett says. “I don’t know too many people lining up to go to Palau, but the public seems to think that it was their obligation to do so.”