Why Won't the Bush Administration Release the Uighur Prisoners at Gitmo?

By Daphne Eviatar, Washington Independent. Posted December 3, 2008.

That White House strategy may have long-term consequences.

"This is very similar to the efforts we see in the regulatory arena -- where the outgoing administration is trying to lock in some of its policies and rules," said Sharon Bradford Franklin, senior counsel at the Constitution Project, a bipartisan nonprofit organization that seeks consensus on constitutional issues. "It's trying to get judicial determinations to lock in its views on broad detention authority and broad executive power that it has been claiming in U.S. policy all along."

The new administration could reverse some of those policies. But as George Fletcher, a Columbia University law professor, points out, "people don't give up power very easily."

Many of President-elect Barack Obama's supporters were angry when he supported recent amendments to the Foreign Intelligence Surveillance Act, or FISA, that gave immunity to telecommunications companies that helped the administration conduct warrantless wiretapping of Americans. "Will Obama give up the imperial presidency?" Fletcher asked.

Other detainee cases present a similar conundrum.

Last week, the D.C. District Court ruled that the administration had insufficient evidence to keep holding five Algerians who were picked up in Bosnia in 2001 and have been detained at Guantanamo Bay ever since. The Justice Dept. said it was disappointed by the decision and may appeal.

And in a case that the Supreme Court may decide to review, the administration contends that it has the right to hold indefinitely and without charge a lawful resident of Peoria, Ill., who it deems, based on evidence it won't disclose, an "enemy combatant." Ali Saleh Kahlah Al-Marri isn't at Guantanamo Bay, however; he's being held in a U.S. Navy brig in South Carolina.

The Justice Dept. has also been working hard to keep a group of habeas corpus cases, filed by more than 100 detainees, from moving forward, though the Supreme Court ruled in June that they're entitled to challenge their detention.

On Nov. 18, Justice Dept. lawyers opposed a federal judge's order to turn over the legal and factual basis for holding the men, as well as all exculpatory evidence. The government argued it would "take months to fulfill" the obligations and protested what it called "dramatic" new disclosures of government secrets.

"They think the president is the supreme leader, and no one can question anything," said Candace Gorman, a lawyer representing two Guantanamo detainees who've been imprisoned there without charge for almost seven years.

The government also urged the judge to submit the dispute immediately to the court of appeals, where it hopes to win a favorable ruling that would expand the government's right to withhold evidence.

"The administration is still trying to get some favorable decisions out of the D.C. circuit that it hopes will not reviewed by the Supreme Court," said Remes of Appeal for Justice.

In addition to its legal legacy, the administration is likely considering its political legacy as well. Fighting these cases is a matter of saving face.

Over the past four years, the administration has endured repeated losses at the Supreme Court in the Guantanamo cases. The high court slapped down the first set of military commissions created by the president and affirmed that Guantanamo detainees have a right to challenge their detention through habeas corpus proceedings in federal court.

With respect to the next set of military commissions authorized by Congress in 2006, the administration's record has been dismal. Of roughly 24 cases in which charges were made, only three detainees have been convicted, and only one of those convictions followed a contested trial.

David Hicks, captured by the Northern Alliance in Afghanistan and turned over to U.S. authorities for a bounty, pleaded guilty to supporting terrorism and was returned to Australia last year to complete his 7-year sentence. He spent five years at Guantanamo Bay.

See more stories tagged with: habeas corpus, supreme court, afghanistan, war on terror, guantanamo, fisa, david hicks, enemy combatants, military commissions, ali saleh kahlah al-marri, uighurs, mohammed jawad

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