East Turkestan: America Seeking to Block Appeal Of Uyghurs at Guantanamo
The Bush administration is asking the Supreme Court to refuse to hear an unusual petition brought by two Muslims from China who are being held at Guantanamo Bay despite the American military's determination that the pair pose no threat to America.
The men, members of the Uighur community native to western China, have picked up some surprising support in their quest for freedom, most notably from a former FBI director known as a conservative no-nonsense lawman, William Sessions.
According to the government's court filings, Abu Bakker Qassim and Adel Abdu' Al-Hakim received weapons training at a Taliban-supplied camp near Tora Bora, Afghanistan, prior to the September 11, 2001, terrorist attacks.
As military action intensified in the region, the men are said to have fled to Pakistan, where they were captured and taken to an American base in Afghanistan. In 2002, American forces deemed the two men to be "enemy combatants" and flew them to Guantanamo.
A year ago, a military tribunal formally determined that Messrs. Qassim and Al-Hakim were no longer enemy combatants. Lawyers for the men contend the military made that determination in 2003.
However, the pair has remained at Guantanamo, because they object to being returned to China, and American authorities will not admit them to this country. The pair contends they are likely to be tortured if returned to China, which has a history of harsh treatment of Uighur militants.
In a new filing with the Supreme Court, the government argues it is engaged in "substantial ongoing diplomatic efforts to transfer them to an appropriate country."
An attorney for the men, Sabin Willett, said in an interview yesterday that the men are caught in legal limbo, with no country willing to accept them.
"These guys have been there at least three years with our government saying our government is trying to resettle them," Mr. Willett complained. "We've spent a lot of money telling the world that Guantanamo is full of terrorists. Now, the world believes us and nobody wants them."
Aside from the pair involved in the litigation, at least five other Uighurs have been deemed releasable by the military and are still being detained, Mr. Willett said. He estimated 23 Muslims from China are jailed at Guantanamo.
In December, Judge James Robertson issued a ruling that found the continuing detention of Messrs. Qassim and Al-Hakim to be illegal. The judge also blasted as "Kafka-esque" the government's use of the term "no longer enemy combatants" to describe their status.
However, Judge Robertson ultimately found it was impractical to release the men on a military base and that bringing them to America "would have national security and diplomatic implications beyond the competence or the authority of this court."
"I find that a federal court has no relief to offer," the judge wrote.
Lawyers for the two men appealed to a federal appeals court in Washington, which is scheduled to hear arguments in the case in May. Six retired federal judges filed a friend-of-the-court brief last month arguing that the Uighurs are being treated unfairly.
"The injustice petitioners continue to suffer is of the gravest kind," the brief filed by the former judges said. "The district court's failure to provide a remedy for petitioners' unlawful detention is inconsistent with the well settled understanding of the function of habeas corpus and the judicial role in ensuring the separation of powers."
Some of the ex-judges who signed the brief have backed other challenges to the treatment of prisoners at Guantanamo. A Newark-based law firm led by a former 3rd circuit judge on the brief, John Gibbons, has represented the American Civil Liberties Union in a lawsuit seeking documents that expose what the ACLU calls "torture" at Guantanamo and in Iraq.
The presence on the brief of Mr. Sessions, appointed FBI director by President Reagan and fired by President Clinton, comes as something of a surprise. Mr. Sessions, reached at his Washington home yesterday, declined to comment.
While the appeal is pending, the prisoners' legal team has also asked the Supreme Court to take up the case immediately.
In a Supreme Court filing posted Friday on the Justice Department Web site, government lawyers stated their opposition to that extraordinary review, which is rarely granted. The Justice Department noted that after World War II and the Korean War, tens of thousands of prisoners-of-war refused to return to their countries. The contention that detaining such prisoners is illegal is "contrary to both history and logic," government lawyers said.
The government also said the men are being treated well at Guantanamo and have access to an exercise yard, soccer, volleyball, and ping pong equipment, showers, air conditioning "which they control," and a television with a DVD and VCR.
There seems little dispute between the parties that the Uighurs could be in danger if returned to China. The State Department's most recent report on human rights is replete with claims that Muslims in China's western Xinjiang province are subjected to repression.
"The Chinese have already threatened to do them harm," Mr. Willett said, noting that Chinese officials flew to Guantanamo to interrogate Uighur prisoners in 2002. "The Chinese have branded these guys as terrorists. They have a history of putting Uighurs into prison, where they are never heard from again."
The new Justice Department brief said the men will not be sent back to China because of a treaty America has ratified which forbids the return of persons to countries where they are likely to be tortured.
The outcome of the Uighurs' legal challenge could turn in part on another Guantanamo-related case the Supreme Court is to take up tomorrow, Hamdan v. Rumsfeld. A key question in that dispute is whether a law passed last year, the Detainee Treatment Act, was intended to toss out all pending litigation brought by Guantanamo prisoners, or just to limit cases filed in the future.