Uighurs in Guantanamo

17 Uighurs, who were captured by bounty hunters in Pakistan, sold to the US and subsequently transferred to Guantanamo in late 2001, were already in 2004 cleared for release by the US Government. Yet they stayed 4 more years in Guantanamo, because, according to the US Government they could not be send back to China due to fears that they would be tortured upon return, which was denied by the Chinese authorities of course.
(Two remarks here.
1) Quite ironically, the US had not only allowed Chinese intelligence agents to visit the Uighurs in Guantanamo, but also used the threat of torture upon transfer to China as a pressing tool against the detainees when they didn’t want to ‘sufficiently cooperate’ with their interrogators. Even worse, the Department of Defense had given in advance the Chinese information the prisoner had previously provided to U.S. interrogators about himself and his family.

2) The US has sent ex-Guantamo Bay detainees back to countries like Tunisia and Algeria where they face a clear threat of being tortured (and actually have been tortured upon arrival). The US Goverment has stated before in these cases that because of  ‘diplomatic assurances’ this wouldn’t happen. But apparently China is a whole different category compared to Tunisia and Algeria. Does the US administration think that diplomatic assurances can never work with China?)

In June 2008, a US federal appeals court ruled in rather harsh terms that Hazaifa Parhat, one of the Uighurs, was classified as an “enemy combatant” on the basis of very questionable evidence that ressembles a nonsense poem by Lewis Carroll, author of Alice’s Adventures in Wonderland. Subsequently the Court ordered the government to either reassess his status, release him, or transfer him out of Guantanamo. In response, the government declared that Parhat – as well as the other 16 Uighur detainees – were “no longer enemy combatants,” but maintained that it can continue to hold them in Guantanamo unless and until another country is willing to accept them.

The Bush administration has made it clear that it would fight energetically against bringing any detainee into mainland U.S., for any purpose — a view that, among other consequences, has complicated the question of whether to close the Guantanamo prison operation entirely.

Today, in a ‘an important blow for the rule of law‘, or – alternatively ‘a raw display of judicial suppremacy’ –  a US District Court ordered that the government must permit the 17 Uighur detainees to be released into the United States by this Friday morning, as these men don’t pose any security risk to the US and the Constitution forbids their indefinite detention without a cause. This is the first time that a US Court has ordered the release of a Guantanamo Bay detainee, and the first time a foreign national held at the facility in Cuba has been ordered transferred to the United States.

The only implicit defense that the DOJ lawyer in the end brough forward to continue the detention was that the US’ (diplomatic) relationship with China would suffer tremendously if the men would be freed. The DOJ lawyer didn’t really elaborate however on how this concern could serve as a legal basis to continue the detention.

Immediately after the ruling the Justice Department, which wasn’t too happy with the ruling, asked in an emergency filing to act by no later than tomorrow on its request for a temporary order blocking the order for release, stubbornly defending that these men “have sought to wage terror on a sovereign government — even one other than the United States – and are therefore ineligible for admission into this country.”

The Department told the Circuit Court that, if it gets an emergency stay, it plans to file “a full motion for a stay” pending appeal by Friday of this week, seeking a response from detainees’ lawyers by Tuesday and a government reply by next Thursday, Oct. 16.

Update: On friday the Justice Department indeed asked the D.C. Circuit Court to allow no transfer until the Supreme Court has considered the delay issue.  The motion for a stay, and for an expedited appeals court review of the issue, can be found here.

See also for background the new CRS-report on US-China counterterrorism policies (dated 11/09/08) and Andy Worthington’s background story on the 17 Uighurs.

One Response

  1. […] 2009 by Mathias Vermeulen The Court ruled that federal district judge Urbina had no authority to order the release into the U.S. of 17 Chinese Muslim Uighurs being held at Guantanamo on 8 october 2…. Only the political branches — the President and Congress — have the authority to decide when […]

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