First, the good news. Adel Abdul Hakim, one of five Uighurs (Muslims from China’s oppressed Xinjiang province), who was released from Guantánamo in May 2006, has had his asylum claim accepted by the Swedish government.
The Uighurs’ story
It has been a long journey for Adel. Seized in Pakistan and sold to U.S. forces in December 2001, with 17 of his compatriots, Adel had been living in a run-down hamlet in the Tora Bora mountains, dreaming of rising up against the Chinese government, when the settlement was hit in a U.S. bombing raid. Although it was clear from the very start of their detention that the Uighurs had nothing to do with either al-Qaeda or the Taliban, the Pentagon initially milked them for information about the Chinese government, and then, as a favor to that same government in the run-up to the invasion of Iraq in 2003, obligingly designated the Uighurs’ separatist group, the East Turkestan Independence Movement (based on the Uighurs’ name for their homeland), as a terrorist organization, and attempted to claim that the Uighurs in Guantánamo were all members.
Even if this had been the case, it was stretching Guantánamo’s rationale to suggest that anyone involved in any independence movement anywhere in the world should be held indefinitely as a "terrorist" on the basis of pragmatic deals struck with foreign governments, but it was not, in fact, clear that any of the men had actually been members of the group. Adel was, initially, one of the lucky ones. While the Pentagon squabbled over the verdicts of different tribunals at Guantánamo (the Combatant Status Review Tribunals, convened in 2004-05 to assess whether the prisoners were correctly designated as "enemy combatants"), secretly reconvening at least two when the tribunal members dared to conclude that their own government had failed to establish an adequate case, Adel and four of his companions managed to avoid the "do-over" tribunals, and were declared to be "not enemy combatants," although the Pentagon ever-inventive and ever-unapologetic soon decided to label them "No Longer Enemy Combatants" instead.
Adel and his four compatriots then languished in Guantánamo for nearly two years, while State Department officials scoured the world looking for third countries prepared to risk the wrath of China by accepting them. This was because, in an ironic twist that was lost on the Bush administration, it was decided that they could not be sent home to China, where there were legitimate fears that they would be tortured. The irony, of course, worked on two levels: firstly, because the Bush administration, which had painstakingly shredded almost every law and treaty it had come across, had decided to abide by the prohibition on returning foreign nationals to countries where they faced the risk of torture (as prohibited in the UN Convention Relating to the Status of Refugees, and in Article 3 of the UN Convention Against Torture); and secondly, because so much of their treatment since they were first seized especially at Kandahar, the U.S. prison in Afghanistan that was used to process the majority of the prisoners who ended up in Guantánamo was saturated with the kind of abuse that many observers identified as torture.
Eventually, Albania was prevailed upon to accept Adel and his compatriots, and in May 2006, just three days before a U.S. appeals court was scheduled to hear a habeas corpus claim on their behalf, they were hastily bundled out of Guantánamo and deposited in a UN refugee camp in the Albanian capital, Tirana. Although grateful to be freed from Guantánamo, the men had difficulty adjusting to life in Albania, which is a Muslim country, but is also one of the poorest countries in Europe, with little opportunities for work and no other Uighurs to provide them with any kind of support network.
Asylum in Sweden
18 months later, in November 2007, Adel secured a visa to visit Sweden, to speak at a human rights conference, and to be reunited with his sister Kavser, a registered refugee and part of a sizeable Uighur community in Stockholm. He then took the opportunity to claim asylum, and was backed up by ten human rights groups, from the U.S. and Europe, who pointed out in a submission last January that Sweden was a more appropriate location for a Uighur refugee than Albania, as it fulfilled many of the UN’s requirements for refugees that were not being met in Albania. According to the UNHCR Resettlement Handbook (04), "resettlement as a durable solution must be accompanied by meaningful prospects for local integration, characterized in part by access to work that provides a living wage; education; fundamental medical (including necessary psychological) services; property; and family support or the support of a similarly situated refugee community."
Last June, however, the Swedish government turned down Adel’s asylum application. He promptly appealed, and today’s decision therefore marks the end of his seven and a half year journey to find a new home. As the BBC reported, the Swedish migration court accepted that Adel (described in the article as Adel Hakimjan) "was not a terrorist and granted him permanent residency as a refugee." Speaking to the Associated Press, Adel declared, "It feels like I am starting again, a rebirth. It is now that I am alive."
The Uighurs’ U.S. court victories
Unfortunately, for the 17 Uighurs still in Guantánamo, today’s bad news rather overshadows the successful outcome of Adel’s long quest for justice. Ignored for years, they gained an unexpected reprieve last June, when three judges in the Court of Appeals in Washington noticeably, two Republicans and a Democrat were finally granted an opportunity to review the government’s evidence against Huzaifa Parhat, one of the 17, and decided that the government’s attempts to link him to the East Turkestan Independence Movement were thoroughly unpersuasive. As a result, they "held invalid a decision of a Combatant Status Review Tribunal" that Parhat was an "enemy combatant," and "directed the government to release or transfer" him (or to hold a new tribunal "consistent with the Court’s opinion").
In the months that followed, the government gave up trying to prove that any of the other 16 Uighurs were "enemy combatants," and last October, when their case was reviewed in a District Court in Washington D.C., Judge Ricardo Urbina ruled that their continued detention in Guantánamo was unconstitutional, and, because no other country had been found that would accept them, ordered their release into the care of communities in the D.C. area and in Tallahassee, Florida, who had prepared detailed plans for their resettlement.
Predictably, the government appealed, insisting, disgracefully, that the men still constituted a threat to the United States because they had received weapons training in Afghanistan, even though it had already abandoned all pretense that this was the case. This was Kafkaesque enough, but it was backed up by a claim that, "under the separation of powers the decision on whether to admit the petitioners into the United States ‘rests solely with the political branches,’" and that "immigration laws preclude a habeas court from ordering the release of an inadmissible alien into the United States."
Sadly, for justice, and for the Uighurs, two of the three judges in the appeals court A. Raymond Randolph and Karen LeCraft Henderson, Bush nominees who will ensure that the Bush administration’s peculiarly aberrant approach to justice will live on for years (or decades) approved the government’s request for a stay on the Uighurs’ release last October, pending an appeal the following month.
On that occasion, the majority verdict was heavily criticized by the dissenting judge, Clinton nominee Judge Judith W. Rogers, who argued that the government’s immigration argument "misstates the law," because "the Supreme Court has made clear that, in at least some instances, a habeas court can order an alien released with conditions into the country despite the wish of the Executive to detain him indefinitely," and "It is thus both inadequate and untrue to assert that the political branches have ‘plenary powers over immigration.’"
In particular, however, Judge Rogers was incensed that the government was attempting to undermine the powers granted to the courts in Boumediene v. Bush, the case last June in which the Supreme Court reiterated that the prisoners at Guantánamo had habeas corpus rights (the right to challenge the basis of their detention). These rights had first been granted by the Supreme Court in June 2004, but had then been removed in two disturbing pieces of legislation the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006.
Insisting that the Supreme Court’s intention had been to empower the lower courts to act as they saw fit (rather than to have their teeth removed by the Executive), Judge Rogers noted that the Supreme Court not only granted Guantánamo prisoners "the privilege of habeas corpus to challenge the legality of their detention," but also held that "a court’s power under the writ must include ‘authority to
an order directing the prisoner’s release.’"
Bush’s judges deny Uighurs’ resettlement in the United States
Yesterday, however, Judges Randolph and Henderson went one step further than they had in November, reversing Judge Urbina’s ruling, and concluding, as Judge Randolph declared (PDF),
invoke the tradition of the Great Writ [habeas] as a protection of liberty. As part of that tradition, they say, a court with habeas jurisdiction has always had the power to order the prisoner’s release if he was being held unlawfully. But
petitioners are not seeking ‘simple release.’ Far from it. They asked for, and received, a court order compelling the Executive to release them into the United States outside the framework of the immigration laws. Whatever may be the content of common law habeas corpus, we are certain that no habeas court since the time of Edward I ever ordered such an extraordinary remedy."
Judge Randolph added, "An undercurrent of petitioners’ arguments is that they deserve to be released into this country after all they have endured at [the] hands of the United States. Such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches."
Surprisingly, perhaps, Judge Rogers, whose dissenting opinion was remorselessly dissected by her colleagues, also voted to overturn Judge Urbina’s order to release the Uighurs into the United States, although she had different reasons for doing so, and, as SCOTUSblog described it, "denounced the majority’s reasoning."
Judge Rogers concurred in the judgment not because she agreed with the judges’ assertions about the executive branch, but rather because the District Court "has yet to hear from the Executive regarding the immigration laws, which the Executive had asserted may form an alternate basis for detention," and that therefore Judge Urbina had "erred in granting release prematurely." Elsewhere, however, she returned to Boumediene, reiterating that the Supreme Court held that prisoners in Guantánamo are "entitled to the privilege of habeas corpus to challenge the legality of their detentions," and that a "habeas court must have the power to order the conditional release of an individual unlawfully detained," and boldly declaring,
"Today the court nevertheless appears to conclude that a habeas court lacks authority to order that a non-‘enemy combatant’ alien be released into the country (as distinct from be admitted under the immigration laws) when the Executive can point to no legal justification for detention and to no foreseeable path of release. I cannot join the court’s analysis because it is not faithful to Boumediene and would compromise both the Great Writ as a check on arbitrary detention and the balance of powers over exclusion and admission and release of aliens into the United States recognized by the Supreme Court to reside in the Congress, the Executive and the habeas court."
President Obama’s problem
Quite where this leaves the Uighurs is difficult to discern. As SCOTUSblog reported, Judges Randolph and Henderson were "not deciding whether the 17 Uighurs could qualify for admission into the U.S. under immigration law." Even though the Bush administration had argued that they could not, the judges declared that they were unable to "resolve that question ‘at this stage’ since the Uighurs had not applied for admission as immigrants." Furthermore, although the judges’ ruling reversed Judge Urbina’s release order, they required him to conduct "further proceedings," which were unspecified, and impossible to gauge, as Judge Urbina has already clearly stated his case, and concluded that the Uighurs "no longer may be held legally by the Executive branch under constitutional habeas principles."
In many ways, therefore, Bush’s judges have thrown the problem of the Uighurs back into the hands of the Executive although now, of course, it is Barack Obama who will have to decide whether to find new homes for the Uighurs in the United States, or to keep them imprisoned at Guantánamo until, perhaps, various European countries step forward to relieve him of the burden.
To that end, I can’t help wondering if the Swedish announcement, in the case of Adel Abdul Hakim, just happened to fall on the same day as the appeal court ruling, or if it was part of a bigger picture that may enable President Obama not to have to act on the Uighurs’ behalf. For many of us, this would be a capitulation to the injustices of the Bush administration, and it would be preferable if the new President were to follow Judge Urbina, Judge Rogers and the Supreme Court, rather than being obliged to support the stance taken by George W. Bush and his Justice Department, as it lingers on in the dubious legal opinions of two of his judges.