Chinese Men Stranded at Guantanamo
- Innocent, but in Limbo at Guantánamo
By Warren Richey
The Christian Science Monitor
Monday 13 February 2006
Five Chinese Muslims, captured in Pakistan by mistake, try to get the
US Supreme Court to take their case.
Miami - Five Muslim detainees from China's western Xinjiang
province are stranded in a legal no man's land at the US terrorism
prison camp at Guantánamo Bay, Cuba.
They shouldn't be there. Even the US military has found that the
men, members of the besieged Uighur ethnic group, are not enemy
combatants. But their ordeal in custody isn't over. Because they could
face harsh treatment back in China - and the US doesn't want to set a
precedent by granting them asylum here - they sit in a barracks-like
detention center waiting for a country to give them a home.
Now, more than four years after their imprisonment by US military
forces, the men are asking the US Supreme Court to examine their case.
At issue is whether individuals captured abroad can be held in
military detention indefinitely - even after the US government has
declared that they pose no threat to national security.
"These men have been adjudged by the military to be, essentially,
mistakes. They are innocent men captured by mistake by US forces
abroad," says Neil McGaraghan, a lawyer representing two of the detainees.
Though the five are not considered enemy combatants, the men can
be held indefinitely under the executive branch's power to wind up
wartime detentions in an orderly fashion, government lawyers say.
"The US has no interest in detaining anyone any longer than
necessary," says Lt. Cmdr. Jeffrey Gordon, a Pentagon spokesman. "We
continue to detain the Uighurs as we continue to work on their
Their request comes after a federal judge in Washington, ruled in
December that the open-ended detention was unlawful. But because of
the murky legal status of the prisoners at Guantánamo, he said he
lacked authority to order military commanders to release them.
"The question ... is whether the law gives me the power to do what
I believe justice requires," US District Judge James Robertson wrote
in his Dec. 22 decision. "The answer, I believe, is no."
Lawyers for Abu Bakker Qassim and Adel Abdu Al-Hakim took the
unusual step of appealing directly to the Supreme Court even before
the issue has been presented to a federal appeals court to prevent
their clients from spending any more time in prison than necessary.
In their petition, the lawyers say Judge Robertson abdicated his
judicial responsibility by failing to order the release of their clients.
"Liberty can never be secure when the judicial branch declares its
impotence," writes Boston lawyer Sabin Willett. "The ruling proclaims
an executive with unchecked power to seize innocents from around the
globe, transport them to United States territory, and imprison them at
its pleasure." If the lower court ruling is allowed to stand, it will
render Guantánamo "a place and prison beyond law," Mr. Willett says.
The case arises at a time when Congress and the White House seek
to limit the opportunities for detainees at Guantánamo to challenge
their captivity in US courts. The Detainee Treatment Act, signed Dec.
30, strips federal judges of their authority to hear such challenges,
and narrows the types of cases that can be heard by the federal
appeals court in Washington. Aspects of the law are being challenged
at the federal appeals court and in a pending Supreme Court case.
Lawyers for Mr. Qassim and Mr. Al-Hakim say the Detainee Act
doesn't apply to their case because Robertson issued his ruling prior
to Dec. 30. But it does for others at Guantánamo classified as enemy
combatants - including other Uighurs captured with Qassim and
Al-Hakim, who say they were sold by Pakistani bounty hunters to US
forces for $5,000 each.
The government's brief to the high court is due Feb. 21.
Government lawyers have sought to prevent a judicial order to bring
the Uighur detainees to a US-based courthouse. Should that happen,
they would be entitled to seek asylum in the US as political refugees
from persecution by the Chinese government in their homeland.
But because the Uighurs are held on a naval base outside the
jurisdiction of US immigration law, they may not make the claim at
Guantánamo, analysts say.
Roughly 1,000 Uighurs live in the US, says Nury Turkel, president
of the Uyghur American Association. "The Uighur community in the
United States has offered to help with the individuals if the US
government allowed them to be released on US soil on an interim basis
while the government tries to find a permanent home," he says.
But government lawyers declined the offer because it might open a
door into the US for others held at Guantánamo.
Robertson declined to order the government to bring the men to the
US. It is unclear whether the US Supreme Court will agree to hear it.
The case raises questions, too, about the proper role of the
judiciary in checking presidential power, analysts say.
"Judge Robertson's decision sets up a very real constitutional
crisis," says Mr. McGaraghan. "The court's decision sets up this
anomaly where it finds executive branch actions unlawful, and yet
decides there is nothing it can do to remedy the unlawful action."
Besides the Uighur detainees, four other non-enemy combatants are
being held at Guantánamo because of human rights concerns if they are
returned to their home countries of Saudi Arabia, Algeria, Egypt, and
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