Guantanamo: What Fate Awaits 17 Detainees Cleared of Terrorism Charges?
Yesterday, the U.S. Court of Appeals for the D.C. Circuit in Washington, D.C. reversed a lower court ruling that would have immediately transferred and released into the United States 17 detainees who have been cleared of terrorism charges after seven years of detention at the Guantanamo military base. In Kiyemba v. Obama, the federal appeals court concluded that the detainees have a right to release but that the court lacks the authority “to order an alien held overseas brought into the sovereign territory of a nation and released into the general population.” Thus, the Uighurs remain stranded and locked up “under the least restrictive conditions possible” at the Guantanamo military base.
Background: Not Unlawful Enemy Combatants or Threat to U.S. Security
The detainees are ethnic minority Uighurs (Uyghyrs) from the Xinjiang province in Western China. They went to Afghanistan prior to September 11, 2001. They fled Afghanistan after the U.S.-led attack on the Tora Bora training camp, where at least some of the Uighurs allegedly received firearms training. At some point, the Uighurs were turned over, some by Pakistani bounty hunters, to the U.S. military and transferred to Guantanamo.
The U.S. government concedes that there is insufficient evidence to classify them as unlawful enemy combatants or to show they represent a threat or danger to U.S. interests. Specifically, at the Combatant Status Review Tribunals in Guantanamo, the government was unable to demonstrate that the Uighurs’ independence group against the Chinese government was associated with the Taliban or al-Qaeda or engaged in hostilities against the United States. See, e.g., Parhat v. Gates, 532 F.3d 834 (D.C. Cir. 2008).
Moreover, because the 17 Uighurs say they fear persecution and possible execution if returned home, under the international law principle of non-refoulement, the United States is barred from transferring the detainees back to their homeland or to any other country where they might be tortured or subjected to ill-treatment. To date, no other country has said that it will accept these detainees. In 2006, Albania accepted five former Guantanamo Uighurs, but it is currently unwilling to accept any additional detainees.
U.S. Court of Appeals: Immigration “Transfer” Decisions Are Not Judicially Reviewable
The federal appeals court in Kiyemba concluded that the detainees have a right to release but that the court lacks the authority “to order an alien held overseas brought into the sovereign territory of a nation and released into the general population.”
The court observed that the executive branch has the authority under its immigration powers to transfer the wrongfully held detainees to the United States. The court did not say how broad those powers are, particularly with respect to whether that authority is shared with Congress. The court hinted that President Obama may need Congressional consent to transfer the detainees from Guantanamo to the United States. It was silent on whether Congressional consent may be needed to release the detainees after they are transferred. Thus, President Obama could authorize the transfer of the Uighurs into the United States. Yet, the court refused to comment on whether consent or additional statutory authority would be needed from Congress to effectuate such executive branch action.
Relying on the doctrine of separation of powers, the court asserted that immigration decisions, such as the decision to transfer the Uighurs into the United States, are not judicially reviewable. The court reversed the lower court and remanded the case back to the district court for reconsideration.
As a result, it “is not within the province of any court, unless expressly authorized by law, to review the determination
of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States. FN8
United States without the consent of Congress.
The critical question is: what law “expressly authorized” the district court to set aside the decision of the Executive Branch and to order these aliens brought to the United States and released in Washington, D.C.?
The district court cited no statute or treaty authorizing its order, and we are aware of none. As to the Constitution, . . . . the due process clause cannot support the court’s order of release . . . the due process clause does not
apply to aliens without property or presence in the sovereign territory of the United States. FN9
Responses from Human Rights Organizations
Jameel Jaffer, Director of the American Civil Liberties Union (ACLU) National Security Project, states: “Today’s decision represents a disappointing step back towards the Bush administration’s unlawful Guantánamo policies. These men were cleared for release but have been held without charge in a system that utterly disregards the fundamental tenets of due process. This decision only underscores how important it is that the Obama administration act quickly to dismantle the Bush administration’s misguided national security policies and to close Guantánamo altogether. The Bush administration’s proposition that individuals can be held indefinitely in a legal black hole is an idea that the Obama administration should reject immediately.”
Photos from Recent “Free the Uighurs” Protests
The “Free the Uighurs” and “Close Guantanamo” protesters have been attending the major events in Washington, D.C. Yesterday, they held a vigil in front of the White House on a rainy, blustery day. A handler, in plain clothes and without a hood, walks with the orange-jumpsuit protesters to make sure the way forward is safe. Here are two photos I captured:
Protesters in support of “Free the Uighurs” at Lincoln’s Bicentennial Birthday Celebration, 12 February 2009
Protesters in support of “Free the Uighurs” at Obama’s Inauguration, 20 January 2009
Guantanamo Trials: Cases, Proceedings, and Updates
- U.S. Department of Defense, Guantanamo Military Commissions
- U.S. Court of Appeals for the D.C. Circuit
Guantanamo Uighurs