On Friday, court-watchers received some deeply depressing news – 33 pages of unconstitutional hogwash directed at the Supreme Court by President Obama’s Justice Department [.pdf], in which no stone of dubious legality was left unturned in the administration’s desperate and unprincipled attempts to mimic its predecessors by preventing 17 Uighurs at Guantánamo from being resettled in the United States.
This is a long-running saga, which I have reported at length over the last year, but it centers on two conflicting court rulings. The first, a great day for U.S. justice, took place last October, when the U.S. government had given up all pretense that the Uighurs were "enemy combatants." This occurred after the government had suffering a withering court defeat in June, when a group of admirable judges compared its attempts to marshal evidence to a nonsense poem by Lewis Carroll, the author of Alice’s Adventures In Wonderland, and last October, in the District Court in Washington, D.C., Judge Ricardo Urbina followed up on this historic decision by ruling that, because the Uighurs’ continued detention in Guantánamo was unconstitutional, because they were at risk of torture if returned to China, and because no other country had been found that was prepared to risk the wrath of the People’s Republic by emulating Albania, which accepted five other Uighurs in 2006, they were to be moved to the United States, where communities in Washington, D.C., and Tallahassee, Fla., had prepared detailed plans for their resettlement.
The second ruling, on a day as bleak as Urbina’s was inspiring, was delivered, in response to a groundless appeal by the Bush administration’s Justice Department, by two appeals court judges, A. Raymond Randolph and Karen LeCraft Henderson, who reversed Judge Urbina’s ruling three months ago. Noticeably, both Henderson and Randolph (who has the dubious distinction of having supported every position maintained by the Bush administration regarding Guantánamo that was later overturned by the Supreme Court) ignored the dissent of the third judge, Judith W. Rogers, who argued that the government’s case "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." Judge Rogers also maintained that, in Boumediene v. Bush (last June’s ruling that granted the Guantánamo prisoners habeas rights), the Supreme Court not only granted the 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 … issue … an order directing the prisoner’s release.’"
In presenting the government’s brief to the Supreme Court, Solicitor General Elena Kagan had the nerve to claim that the Uighurs "have already obtained relief," explaining, "They are no longer detained as enemy combatants, they are free to leave Guantánamo Bay to any country that is willing to accept them, and in the meantime, they are housed in facilities separate from those for enemy combatants under the least restrictive conditions practicable."
Cynics might note that living in Guantánamo, under whatever conditions, does not constitute the "relief" that the Supreme Court had in mind last June, but this did not deter the solicitor general, who continued to channel the Bush administration by maintaining that the court of appeals "properly recognized that whether to admit an alien into the United States presents a question wholly distinct from issues concerning detention abroad – and a question that is reserved to the political branches." She added that the Supreme Court "has repeatedly stressed that whether to allow an alien into the United States is a sovereign prerogative that requires the consent of the political branches."
Moving on, the Justice Department entered a previously uncharted realm of callousness when its brief dismissed the reasons that the Uighurs cannot be returned to China – because of international treaties preventing the return of foreign nationals to countries where they face the risk of torture – by pretending that it was their own choice. The Uighurs, the government stated, "would like the federal courts to order that they be brought to the United States, because they are unwilling to return to their home country [emphasis added]. But they have no entitlement to that form of relief."
In an attempt to paint a rosy picture of the Uighurs’ current conditions of confinement, the Justice Department "sought to persuade the court," as SCOTUSblog put it, that the Uighurs "are not really being detained any longer." Their "continued presence at Guantánamo Bay," the brief stated, "is not unlawful detention, but rather the consequence of their lawful exclusion from the United States, under the constitutional exercise of authority by the political branches, coupled with the unavailability of another country willing to accept them." The brief added that, because their exclusion from the U.S. "is constitutionally valid, their resulting harborage at Guantánamo Bay is constitutional as well."
Elsewhere, the government also defended another ad-hoc policy of the Bush administration: the so-called "wind-up" period of indefinite duration, while efforts to resettle prisoners in third countries are underway. Rather disturbingly, the brief did not specify how long this "wind-up" period might last, but noted – with another burst of callousness toward men already deprived of their liberty for seven and a half years – that, although it would be "a reasonable period of time," previous examples of what was regarded as "reasonable" lasted for "several years."
Whether the Supreme Court will agree with the picture painted by the Justice Department is another matter, as it differs substantially from the interpretation offered by both Judges Urbina and Rogers, when they were given the opportunity to determine what the court had intended when it granted the prisoners habeas rights in Boumediene. The Uighurs’ lawyers will now respond to the Justice Department’s brief, and the Supreme Court will decide whether to hear the case. As SCOTUSblog explained, "It is possible, though not a certainty, that the court will make up its mind for or against review before recessing for the summer late next month," adding, "If the court accepts the government’s view, either by denying review or by granting review and ruling against the detainees’ release, the Uighurs’ fate will depend entirely upon efforts by the State Department to find another country willing to accept them – a prospect that appears to be diminishing, especially in foreign governments’ negative reaction to heavy political resistance in Congress to resettlement of any Guantánamo prisoner inside the U.S."
This is an important point, and, sadly, it reveals nothing more than an administration that is rapidly losing its immediate post-election advantage by shifting in the wind and, as a result, giving more, not less, power to the cowardly or cynical politicians who have leapt on Obama’s promise to close Guantánamo – as well as plans to move prisoners to the U.S. mainland, and to release the Uighurs – with a despicable dose of NIMBYism (Not In My Back Yard) that demonstrates cynical political maneuvering at its worst.
As Eric Holder tours Europe looking for new homes for some of the prisoners that the administration’s inter-departmental review has cleared for release (who, like the Uighurs, cannot be repatriated because their home countries have notoriously poor human rights records), he is increasingly meeting resistance from countries whose governments argue, with some justification, that they cannot be expected to help out unless the U.S. is also willing to play its part by accepting prisoners.
Without firm action by the administration, President Obama may just find that he has been outplayed and that he will not only hand victory to the NIMBYists – who would like nothing better than to see Guantánamo stay open forever – if he is unable to close the prison by January 2010, but will also undermine his reputation abroad, and, in particular, in the Muslim world, where undoing the damage of the Bush years is critical.
My hope is that the Supreme Court will accept the case, and will rule in the Uighurs’ favor, but if that doesn’t happen, Obama needs to find the courage to resist the shrill opportunism of some of his least principled colleagues and order the Uighurs’ release into the United States, resurrecting the spirit of justice that prevailed last October, when Judge Urbina stated, "I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention. Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful."