Dec 05, 2008

Uyghurs: No Release for Guantanamo Prisoners

Active ImageUyghur prisoners said to be victims of outgoing administration power struggle.



Below is an article published by

Pity the Uighurs. Originally known best in this country for their unusual name, the group of 17 Chinese Muslims has been locked up at Guantanamo Bay for the past seven years. That has contributed to the Uighurs new-found notoriety as hapless victims of a U.S. detention policy that can't send them home, yet can't send them anywhere else.

The Bush administration has acknowledged that it no longer considers the Uighurs "enemy combatants" subject to detention. Yet on Nov. 24, it vigorously fought a court's order to release them in the United States -- insisting that only the president and his Homeland Security Dept. have the authority to make that call. (Because the 17 Chinese Muslims received weapons training in Afghanistan, the administration claimed they posed a threat and cannot be allowed to live here. Yet the government has never presented any evidence that the men intended to use their training to stage attacks in the United States.)

The case has become such a global embarrassment for the U.S. that a group of 10 distinguished conservatives recently wrote to the administration appealing for the Uighurs' release, saying their continued detention without cause "undermines our standing in the world."

None of this seems to matter. As the administration faces its last days in power, officials, citing strategic reasons, are using even their weakest cases against detainees in the war on terror to hold onto what power they can exert.

In a series of interviews with more than 10 legal experts and law professors, as well as many litigators involved with detainee lawsuits, most said that the administration is intent on leaving a strong legal legacy that will fortify its efforts to strengthen executive power. If it succeeds, Congress will be even more hard-pressed to reclaim the power that the administration has concentrated in the executive branch.

Success could also present the Obama administration with some difficult challenges -- both to its ability to dismantle the Bush detainee policy and to its resolve to resist exercising the greatly enhanced executive powers it will inherit.

"I think it's a matter of principle for the Bush administration," said David Remes, executive director of Appeal for Justice and a lawyer who represents more than a dozen Yemeni detainees at Guantanamo Bay. "They can't control what happens after they leave office. But at least they'll have the satisfaction of knowing that the principle wasn't compromised on their watch."

The reputations of administration officials are also at stake.

"I think they're trying to make their record less damning in terms of not having produced much in the way of convictions or sentences," said Madeline Morris, a law professor at Duke University and former chief counsel to the Office of the Chief Defense Counsel for Military Commissions in the Defense Dept. "They want some high-profile signs that something's happening -- for example, that the 9/11 defendants are being brought to justice. The more that they can get [these cases] even into the pretrial phase … the more the commission process would seem efficacious, at least in its public impression."
In the case of the 17 detained Uighurs, it is a matter of principle: Who gets to decide whether they are released -- a judge or the president?

The answer to the legal question isn't completely clear, said Fordham law professor and criminal defense expert James Cohen. "It presents difficult issues of separation of powers," he said.

But as a political matter, what makes this case worth fighting?

"I think [the administration] would like to establish and preserve favorable precedents, so that a president in the future would be free to pursue the same course," said Remes. "So much of what the White House has been doing in the past seven years has been creating precedents for unilateral exercises of presidential power. I think it sees no reason to capitulate before it has to."
That White House strategy may have long-term consequences.

"This is very similar to the efforts we see in the regulatory arena -- where the outgoing administration is trying to lock in some of its policies and rules," said Sharon Bradford Franklin, senior counsel at the Constitution Project, a bipartisan nonprofit organization that seeks consensus on constitutional issues. "It's trying to get judicial determinations to lock in its views on broad detention authority and broad executive power that it has been claiming in U.S. policy all along."

The new administration could reverse some of those policies. But as George Fletcher, a Columbia University law professor, points out, "people don't give up power very easily."

Many of President-elect Barack Obama's supporters were angry when he supported recent amendments to the Foreign Intelligence Surveillance Act, or FISA, that gave immunity to telecommunications companies that helped the administration conduct warrantless wiretapping of Americans. "Will Obama give up the imperial presidency?" Fletcher asked.


Obama has pledged that his administration will disband the military commissions when he takes over Jan. 20. Lawyers practicing before the military commissions could still be struggling with pre-trial motions then.
Still, the Bush administration seems eager to shield itself from blame for any bad outcomes later on.
"I think the Defense Dept. in particular is rudderless," said Vijay Padmanabhan, the former chief counsel at the State Dept. for detainee litigation, who is now a visiting professor at Benjamin N. Cardozo School of Law. "It has never thought, 'What happens if we lose many of these court cases? What are the long-term strategic consequences?' It just keeps fighting them. And then, if [the detainees are] released and something bad happens, it can blame the court."