In an extraordinary and unprecedented ruling in a US District Court, Judge Ricardo Urbina has ruled that 17 wrongly imprisoned Chinese Muslims at Guantánamo must be allowed entry to the United States. It is, as the media has been reporting, the first time that a US court has directly ordered the release of a prisoner at Guantánamo, and the first time that a foreign national held at the prison has been ordered to be brought to the United States. It is also a resounding blow to the administration’s claims that it can seize anyone it wishes as an “enemy combatant,” and hold them indefinitely, even if there is no evidence whatsoever to support their detention.
The road to Guantánamo
The 17 men Uighurs (or Uyghurs) from Xinjiang province in the People’s Republic of China (known to the Uighurs as East Turkestan) have been a problem for the authorities since they were captured nearly seven years ago. Refugees from Chinese oppression, 13 of the men had, by accident or design, made their way to a run-down hamlet in Afghanistan’s Tora Bora mountains, where they spent their time making the place habitable, and indulging in futile dreams of rising up against their historic oppressors. After the US-led invasion of Afghanistan in October 2001, they were targeted in a US bombing raid, in which several of their companions died. The survivors made their way to the Pakistani border, where they were welcomed by villagers, who betrayed them soon after, selling them for a bounty to US forces.
The other four Uighurs were caught up in similarly bleak scenarios. One had fled from death and destruction in Kabul, and was caught as he attempted to cross the Pakistani border, and three were randomly seized in northern Afghanistan and imprisoned with several hundred foreign Taliban fighters in Qala-i-Janghi, a fort run by General Rashid Dostum, one of the leaders of the Northern Alliance. When Alliance troops, with support from US and British Special Forces, began tying the men’s hands behind their backs, some of the Taliban soldiers thought that they were about to be executed, and rose up against their captors. In the ensuing massacre involving ground troops and bombing raids the majority of the prisoners were killed, but the Uighurs, along with 84 others, had stayed in the basement, where they survived death by bombing, fire and flooding, and they were part of a group of around 50 survivors who were eventually transferred to Guantánamo.
According to Chris Mackey, the pseudonym of a senior interrogator at the US-run prisons in Kandahar and Bagram, which were used to process the prisoners for Guantánamo, US forces realized almost immediately that the men were not involved with al-Qaeda, but decided to hold them for their supposed intelligence value. In his book The Interrogators, Mackey explained that their arrival triggered a frenzy of activity in the upper echelons of the administration. “The requests for follow-up questions flooded in from Washington,” he wrote, “and every query that came in made it clear that US intelligence was starting from practically zero with this group.”
Transferred to Guantánamo, so that the authorities could continue milking them for information about China, the US authorities nevertheless persisted in identifying the men with al-Qaeda and the Taliban, by claiming that they were associated with the East Turkestan Independence Movement (ETIM), a Uighur resistance group. And when the administration sought support from China for its invasion of Iraq or, at least, a lack of opposition it obligingly designated ETIM a terrorist organization, and allowed Chinese interrogators to visit Guantánamo, where, according to several of the prisoners, they received threats that they would be killed if they ever returned to China.
In 2004, when the Supreme Court ruled that the prisoners had habeas corpus rights (in other words, the right to challenge the basis of their detention in a federal court), the administration’s cynical response was to introduce military review boards at Guantánamo the Combatant Status Review Tribunals (CSRTs) to assess whether, on capture, the prisoners had been correctly designated as “enemy combatants,” who could be held without charge or trial. This was a hideously unjust process, as the prisoners were not allowed legal representation, were confronted with often spurious allegations (frequently produced through the torture or coercive interrogations of other prisoners), and were also prevented from either seeing or hearing the “classified evidence” against them, which could also have been produced in the same unjust, unprincipled, and often illegal manner.
Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the tribunals, caused a stir last year when he explained how the information used in the tribunals frequently consisted of intelligence “of a generalized nature often outdated, often generic,’ rarely specifically relating to the individual subjects of the CSRTs or to the circumstances related to those individuals’ status,” and how the entire process was, essentially, designed to rubber-stamp the prisoners’ prior designation as “enemy combatants.” As a result, only 38 of the 558 prisoners were cleared for release after the tribunals, and on a few occasions, when the result of the tribunal displeased the administration, further tribunals were held until the desired result was achieved.
This happened to at least two of the Uighurs, Anwar Hassan and Hammad Mohammed, but others were among the lucky 38 who were found to be “No Longer Enemy Combatants” after the CSRTs, and five of these men were finally released in May 2006, when Albania stepped forward as the only country in the world prepared to risk the wrath of China by giving the men a new home albeit one with no Uighur community, no work prospects, and no chance for them ever to be reunited with their families.
While these men struggled to survive in Albania, the other Uighurs who were all eventually cleared for release after further review boards remained in severe isolation in Guantanamo. Like the majority of other cleared prisoners from human rights-abusing regimes (including Algeria, Libya, Tunisia and Uzbekistan), few of the men were held in Camp 4, the only block that allowed the prisoners to share dorm-like facilities, and the majority continued to be held in maximum security cellblocks for 22 or 23 hours a day, prohibited from meeting each other and with little, if any outside stimulation to break the corrosive monotony of their existence, or their fears that they would never be released or would, in fact, be surreptitiously returned to China.
In March, a letter from Guantánamo by one of the prisoners, Abdulghappar, described the suffering of the men in painful detail. He wrote: “Being away from family, away from our homeland, and also away from the outside world and losing any contact with anyone is not suitable for a human being, as, also, is being forbidden from experiencing natural sunlight and natural air, and being surrounded by a metal box on all sides.” He also reported that one of his compatriots had embarked on a hunger strike in protest, but was being punished for it, and asked, “In the US Constitution, is it a crime for someone to ask to protect his health and to ask for his rights? If it does count as a crime, then what is the difference between the US Constitution and the Communist Constitution?”
This impasse over the Uighurs’ plight was finally broken in June, after the Supreme Court, dismayed that the habeas rights it had granted the prisoners in 2004 had been removed in subsequent legislation, stamped its authority by ruling that the prisoners had constitutional habeas rights. This unblocked a queue of contested habeas cases that had been on hold pending the Supreme Court’s ruling, and when the first of the cases, Parhat v. Gates, reached the Court of Appeals in Washington, the judges’ explosive ruling led directly to Judge Urbina’s historic ruling on Tuesday.
The three Appeal Court judges noticeably, two Conservatives and a Liberal ruled that the CSRT’s decision that Huzaifa Parhat, one of the Uighurs, was an “enemy combatant” was “invalid,” and “directed the government to release or transfer” him (or to hold a new tribunal “consistent with the Court’s opinion”). In a savage denunciation of the CSRT decision, they lambasted the government for the flimsy and unsubstantiated allegations and associations it used to conclude that Parhat was an “enemy combatant,” and in a memorable passage compared the government’s argument that its evidence was reliable because it was mentioned in three different classified documents to a line from a nonsense poem by Lewis Carroll, the author of Alice’s Adventures in Wonderland. As Chief Judge Merrick B. Garland explained, “Lewis Carroll notwithstanding, the fact the government has ‘said it thrice’ does not make an allegation true.”
With the Parhat ruling, the government’s attempts to insist that any of the Uighurs were “enemy combatants” were clearly no longer tenable. At a hearing in August, when the idea was first floated that they should be released into the United States, Judge Urbina “hinted,” as the Washington Post described it, “that he was intrigued by the detainees’ proposal,” and stated, “I don’t understand why that would not be a viable option.”
The Justice Department did not respond directly to Judge Urbina’s comments, but its lawyers argued in court that only the President had the authority to allow the men into the United States. However, the Post explained that, although the issues were “complex,” legal scholars “generally disagreed with the government’s position, saying the judge has the ultimate authority” to decide whether to bring the men to the US mainland.
The Justice Department also insisted that the judge was legally prevented from ordering the Uighurs’ entry into the US if they had ties to terrorist groups. As Parhat v. Gates showed, however, neither Huzaifa Parhat nor, by extension, the other 12 men seized with him had ties to terrorist groups, and as the weeks passed the government fatally undermined its own arguments: first it announced, in belated response to the Parhat ruling, that it would not arrange a new trial for Parhat and that it would “serve no purpose” to continue trying to prove that he was an “enemy combatant”; then it did the same for four of his compatriots; and on September 30 it added the last 12 Uighurs to its list of non-combatants.
Welcome to America
As a result, Judge Urbina came to work on Tuesday facing a stark but simple decision: to obey the US Constitution or to turn his back on all he had been brought up to believe in.
He chose to obey the Constitution. Ordering the 17 men to be brought from Guantánamo to the courtroom on Friday, he indicated that he would release them to supporters in the United States in Florida, and in the Washington DC area who would look after them while the government worked out if it could come up with another solution that did not involve their continued imprisonment.
“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina stated, adding, “Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful.”
He also explained, as the New York Times described it, that “the men had never fought the United States and were not a security threat,” and impatiently rejected a government request to stay his order to permit an immediate appeal. “All of this means more delay,” he said, “and delay is the name of the game up until this point.” Drawing on the historic right of a judge to demand that a prisoner be brought before him (the core, in fact, of habeas corpus, which means, literally, “you have the body”), he added, “I want to see the individuals.”
When the government suggested that immigration officials might detain the men on arrival in the United States, Judge Urbina snapped, “I do not expect these Uighurs will be molested by any member of the United States government. I’m a federal judge, and I’ve issued an order.” Crucially, as the Times put it, he “underscored the significance of his ruling with repeated references to the constitutional separation of powers and the judiciary’s role,” rejecting arguments put forward by the Justice Department as “assertions of executive power to detain people indefinitely without court review,” which, he said, were “not in keeping with our system of government.”
As the judge rose to leave the bench, the crowded courtroom burst into applause. Members of the Washington DC Uighur community, who settled here in the 1980s, when they fled Chinese oppression and were regarded as anti-Communist heroes, had come to lend support, and their offers of help and those offered by community leaders from Tallahassee, Florida, who have also been involved in plans to welcome the Uighurs were credited with helping the judge make his decision.
Nury Turkel, a D.C.-based aviation lawyer, explained, “Our community said, ‘We are here to help. Release them into our custody.’ We have people offering them places to stay, English training, employment. We don’t want anyone to think they will be a burden on society.”
Although the government immediately pledged that it would appeal Judge Urbina’s ruling, and the White House’s press secretary, Dana Perino, claimed, somewhat hysterically, that it “could be used as precedent for other detainees held at Guantánamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country,” no decision had been made by the close of business on Wednesday.
As CNN reported, the government had filed an emergency motion, reiterating its argument that “only the executive branch, not the courts, may decide whether to admit an alien into the United States,” and insisting that Judge Urbina’s ruling
“threatens serious harm to the interests of the United States and its citizens by mandating that the government release in the nation’s capital 17 individuals who engaged in weapons training at a military training camp.” In response, as the Associated Press reported, the prisoners stated that Judge Urbina had “made the right decision in ordering their release since they are no longer considered enemy combatants,” and their lawyers argued that delaying their release would mean that “the government would prolong by months, and perhaps years, an imprisonment whose legal justification it has conceded away.”
In the hope that justice will prevail, I leave the final word for now to Sabin Willett, a Boston-based lawyer who represents some of the Uighur prisoners. Willett and his colleagues have campaigned assiduously for their clients, and after arguing the case before Judge Urbina, he stated, with a dignity sorely lacking from the government’s rhetoric, “In the history of our Republic, the military never imprisoned any man so harshly, and for so long, let alone men who are not the enemy. We have broken faith with the rule of law, and been untrue to the generosity of spirit that is our national character.”
Note: Early on the morning of October 9, Reuters reported that a federal appeals court temporarily blocked the Uighurs release, granting the government a stay until October 16, in order to give the court more time to consider the dispute. The three judges added, however, that the stay should not be construed in any way as a ruling on the merits of the government’s request.