Why is the Obama Administration Blocking the Release of the Innocent Uighurs at Guantánamo?

By Andy Worthington, AlterNet. Posted June 1, 2009.

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 towards 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.” 

See more stories tagged with: supreme court, guantanamo, department of justice, uighurs, ricardo urbina, a. raymond randolph, karen lecraft henderson, judith w. rogers, elena kagan

Andy Worthington is a writer and historian, and author of The Guantánamo Files.

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