Why is the Obama Administration Blocking the Release of the Innocent Uighurs at GuantÃ¡namo?
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, Florida, 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.”