enemy combatants

Appeals Court Rules Against Bagram Detainees

Today, the DC Circuit Court of Appeals ruled against three detainees held by the U.S. on a military base in Bagram, Afghanistan, holding that the federal courts do not have jurisdiction to review their habeas petitions. People For the American Way Foundation filed an amicus brief in support of the detainees’ position that the federal courts do have such jurisdiction.

 In apparent concern about opening the door to habeas cases from detainees held on U.S. military bases all over the world, the three-judge panel distinguished the United States’ control and sovereignty over the Bagram military base from the de facto sovereignty over Guantanamo Bay - a determinative factor in the Supreme Court’s decision in Rasul v. Bush (2004) which held that Guantanamo detainees could seek habeas relief in U.S. courts. The panel pointed out that the U.S. has exercised its leasehold interest in Guantanamo Bay for over 100 years, while its leasehold interest in Bagram is only a few years old.

More interestingly, the court also accepted the government’s “practical obstacles” arguments on appeal that allowing these cases to proceed in our federal courts would overly burden a military that is engaged in active hostilities in Afghanistan. PFAW Foundation wrote about this very issue, urging the court to take notice of the orderly and unobtrusive manner in which the Guantanamo habeas cases have been disposed since the Supreme Court’s decision in Boumediene in 2008. Those cases are particularly instructive given that 30 of the 38 detainees whose cases were brought before the D.C. district courts by the time of filing were found to have insufficient evidence to support their detentions, belying the notion that those detained as enemy combatants are the worst of the worst. In fact, many are not and worse still, some may even be innocent.

PFAW

Supreme Court Agrees to Hear Uighur Detainees' case

Yesterday, the Supreme Court decided to hear the case of 13 Uighur detainees held at Guantanamo Bay who are no longer classified as enemy combatants and have been determined to be no threat to the national security of the United States. These detainees - who were captured in Afghanistan and Pakistan and have been held by the U.S. since 2001 - were cleared for release by the Pentagon in 2003, but six years later, they have yet to be set free.

After the Supreme Court ruled in Boumediene last year that Guantanamo detainees have the right to bring habeas corpus claims in federal court to challenge the legality of their detentions, a federal judge in DC ordered that the Uighur detainees be immediately released into the United States since they cannot return to their own country. As members of a Turkic Muslim minority from the Xinjiang Autonomous Region of China, their release back into their own country would likely result in torture and execution.

In February 2009, a 3-judge panel of the DC Circuit Court of Appeals overturned that order, finding that the federal courts lack the authority to order their release into the U.S. Describing it as an immigration decision, the panel concluded that only the executive branch has such authority and even suggested that the detainees apply for entry into the United States through the Department of Homeland Security pursuant to our immigration laws. In petitioning the Supreme Court for certiorari review, the Uighur detainees argued that stripping the power from the federal courts to order their release into the United States rendered the habeas right recognized by Boumediene meaningless. And indeed, they continue to be held behind chained fences guarded by military men.

Disappointingly, Obama's Solicitor General Elena Kagan urged the Supreme Court not to hear the case, arguing that they have no right to enter the United States. Kagan wrote that "they are free to leave Guantanamo Bay to go to any country that is willing to accept them," but acknowledged that the detainees "understandably do not wish to [return to their home country]." Kagan's brief even attempted to portray the conditions of the Uighurs' imprisonment as not so bad.

In contrast to individuals currently detained as enemies under the laws of war, petitioners are being housed under relatively unrestrictive conditions, given the status of Guantanamo Bay as a United States military base…[They are] in special communal housing with access to all areas of their camp, including an outdoor recreation space and picnic area. . . [They] sleep in an air-conditioned bunk house and have the use of an activity room equipped with various recreational items, including a television with VCR and DVD players, a stereo system, and sports equipment.

Sounds just as good as freedom, doesn't it?

But what if there is no country willing to accept them? That is the case for at least one of the Uighur detainees who has serious mental treatment needs. In that scenario and under these set of circumstances - where they have been found to be no threat to the United States - shouldn't the U.S. take it as a moral imperative to immediately release these people even if they must be released into our borders? Particularly since the media coverage of their wrongful detentions at Guantanamo Bay by the United States is what highlighted the bull's eyes on their backs for the Chinese executioners in the first place?

Let's not be distracted by side arguments by the DC Circuit or our new SG. First, this is not an immigration matter subject to the jurisdiction of the Department of Homeland Security or Congress. These people had no intention or desire to migrate to the United States. They were involuntarily and wrongfully imprisoned by the United States for over eight years. Second, they are not free in any way and are in every sense of the word imprisoned. If relocation to another country is not available, the United States has a moral duty to immediately release these people into the U.S. subject to any parole conditions that may be appropriate. And if the judiciary is the only branch of our government that has the moral compass to do what is right, they should be vested with the power to do so. That is the root of habeas corpus relief which was designed to remedy unlawful government detention. That is why we have our constitutional system of checks and balances.

PFAW