Wednesday, April 01, 2009
March 31, 2009, 8:23 pm
After Detention, Where Can the Uighurs Go?
By The Editors
(Photo: Karen Bleier/Agence France-Presse — Getty Images) In February, demonstrators in Washington protested the detention of the Uighurs in Guantánamo Bay, Cuba.
As the Obama administration reviews detainee files in its move to close the Guantánamo Bay detention facility, the case of 17 Chinese Muslim Uighurs, who have been held there for seven years without charges, remains a big stumbling block.
The Uighurs were cleared for release in 2004, and in 2008, the Bush administration conceded they were no longer “enemy combatants.” But they cannot be sent back to China, where they may be tortured, and no other nation has agreed to take them.
The Obama administration is now under pressure to show its willingness to take some detainees into the United States as it tries to persuade other countries to do the same. But such a move is likely to be opposed by communities where the Uighurs would be resettled.
Given the thorny legal and political problems, what lessons might be learned from the Uighur case?
* Jenny Martinez, Stanford law professor
* Andrew McCarthy, senior fellow, National Review Institute
* Glenn Sulmasy, law professor at U.S. Coast Guard Academy
* Diane Marie Amann, law professor at University of California, Davis
* Deborah Colson, Human Rights First
The Mess Left Behind
Jenny S. Martinez
Jenny S. Martinez, a professor of law at Stanford University, argued the 2004 case of Rumsfeld v. Padilla before the United States Supreme Court.
The case shows how hard it will be for the Obama team to clean up the mess left by the previous administration. Last fall, while the State Department tried to persuade other countries to accept the Uighurs, the Justice Department filed briefs in federal court saying they were too dangerous to be released into the United States.
Dealing sensibly with detainees requires cooperation, within the branches of our own government and with other nations.
This was yet another example of the Bush administration’s Justice Department failing to consider the advice of lawyers in the State Department and the uniformed military in setting interrogation and detention policies. Of course, it also refused to acknowledge the role of Congress and the courts in setting and reviewing policy.
More than that, the case of the Uighurs demonstrates the degree to which the Bush administration underestimated the impact of its detention policies on our relations with other nations. These detainees cannot be returned to China because they would likely face torture or other mistreatment. At the same time, China considers Uighur separatist groups to be terrorists and so is pressuring other countries not to accept the prisoners. Meanwhile, the European Union’s counterterrorism coordinator, Gilles de Kerchove, has reportedly told the United States that it will be difficult to get European countries to accept Guantánamo detainees unless it shows good faith by letting the Uighurs resettle in the United States.
The Uighur case shows that dealing sensibly with detainees requires coordination and cooperation: within the branches of our own government, and with other nations. In today’s world, you can’t just go it alone.
A Case Built on Irrationality
Andrew C. McCarthy, Senior Fellow, National Review Institute, is author of “Willful Blindness: Memoir of the Jihad.”
The Uighur saga nicely captures all the irrationality and hypocrisy of our counterterrorism approach. That policy foolishly holds that we can focus on terrorist activity without focusing on the jihadist ideology that motivates it.
So what happens? The military, which has released many terrorist operatives in the course of the past several years, saw the Uighurs as a group that could be unloaded. It took the position that they were “enemy combatants” but not America’s enemy, reasoning that these detainees’ dispute was with China. This contention was legally incoherent: one must be America’s enemy to be detained by the U.S. as an enemy combatant. It also showed a deep ignorance of jihadist ideology.
Relocating them in the U.S. would be irresponsible and fly in the face of the law.
In fact, the Uighurs were captured by coalition forces after the U.S. invasion of Afghanistan. Their presence there was not an accident: They had sought and received instruction in the paramilitary camps of the East Turkestan Islamic Movement, an al-Qaeda affiliate formally designated as a terrorist organization under U.S. law. Besides their terrorist training, at least some of the Uighurs are known to have fought against Coalition forces, and to have joined other terrorist detainees in rioting at Guantánamo Bay.
Obviously, because the military’s position was untenable, it was appropriate for the reviewing federal appeals court to invalidate the enemy combatant designation — something Congress gave the court the power to do. But the judiciary did not have the power to order the Uighurs released, much less released into the U.S.
In fact, the federal REAL ID Act of 2005 provides for the exclusion of any alien who has received terrorist training or has belonged to an organization that promotes terrorism — against anyone. The Uighurs are excludable on both grounds, even if one accepts, for argument’s sake, that they were trained for the purpose of conducting operations against China.
Now, for the purpose of resettling this group, Mr. Obama may ignore statutory provisions — measures enacted precisely because paramilitary training has been a feature of virtually all attacks carried out by radical Islam against the U.S.
Clearly, we cannot send the Uighurs to China; our treaty obligations forbid transfer to countries where detainees are likely to be persecuted. Consequently, they should be detained until another country willing to receive them can be found. Relocating them in the U.S. would be irresponsible and fly in the face of the law.
Prevent Similar Legal Mistakes
Glenn M. Sulmasy
Glenn Sulmasy is on the law faculty of the U.S. Coast Guard Academy. He is the author of a forthcoming book, “The National Security Court System: A Natural Evolution of Justice in an Age of Terror.” The views expressed here are his own.
The case highlights the many legal and policy ambiguities associated with the “war on terror.” It also underscores the need for the political branches to work together to establish a clear process for captured fighters to be detained, questioned, and to have their cases adjudicated.
We need to determine the status of alleged enemy combatants soon after they enter custody — not years later.
The Uighurs were not actually fighting the U. S. when they were captured in Afghanistan; their goal was to attack the Chinese. But now they are our problem. They cannot be released to the Chinese, yet the political consequences of allowing them to settle in the United States does not seem palatable to many.
The United States does have a duty to the Uighurs since they have been in captivity for seven years without charge and without trial. Eventually, they will have to be resettled. We should probably take two lessons from the case. The “war on terror” should be refocused as a “war on al Qaeda” — the broader approach makes less sense now than perhaps it did immediately after 9/11. We need a new, uniform procedure to ensure that the status of alleged enemy combatants be properly determined soon after they enter custody.
This sort of mistake, if it is to happen again in the future, needs to be recognized quickly through an acceptable habeas process and remedied as soon as possible. The heart of the Uighur problem is that it took seven years to decide what to do.
The Way Out: Grant Asylum
Diane Marie Amann
Diane Marie Amann is a law professor at University of California, Davis.
The Uighur case is a cautionary tale for this administration as it moves to end abuses in post-9/11 counterterrorism policy.
Recognition that a state can get it wrong – can put the wrong person in jail – is the core reason that our laws require review of the lawfulness of detention. The requirement is found in the habeas corpus clause of the U.S. Constitution, in the Geneva Conventions to which the United States is a full party, and in U.S. criminal statutes and military regulations that implement those guarantees.
The past administration’s refusal to comply with this body of law delayed for years the finding that the Uighurs are not enemy combatants, and no doubt complicated the question of what to do with them now. These men cannot expect safety back home in China. No other country has welcomed them. It is time for the United States to do just that – to grant the Uighurs asylum within U.S. borders. We should learn that this result is a foreseeable consequence of denying such persons their rights under the law.