D.C. Circuit Court of Appeals Casts Uighur Detainees Back Into Purgatory

Our guest blogger is Ken Gude, Associate Director of the International Rights and Responsibility Program at the Center for American Progress Action Fund.

gitmo.jpgThe simultaneously simple and complex case of the Guantanamo Uighurs just won’t end. It finally appeared to be over after a U.S. district judge’s ruling Tuesday that they were to be released into the United States on Friday. But late last night, a three judge panel of the D.C. Circuit Court of Appeals granted the government’s request for a temporary stay blocking their release. Unfortunately for the Uighurs, these are the same three judges who ruled in January that detainees at Guantanamo are not considered “persons” and that torture is a “foreseeable consequence” of military detention. The Uighurs are now forced back into limbo, perhaps even until the next administration takes office and has the courage to do what is right and set them free.

This case is simple because all sides agree these men are not enemies of the United States, but is complex because all sides agree that the Chinese government views them as enemies. They were caught up in a geopolitical conflict as the Bush administration failed to overcome Chinese pressure and find them another home and refused to accept them in the United States. The Uighurs are a Muslim ethnic minority group residing in western China that has at times resisted the control of the Chinese Communist Party in Beijing. The Chinese government has a history of persecuting Uighurs and many have fled across the border to camps in Afghanistan. Some of them then had to flee again after the U.S. invasion in October 2001 and ended up in Pakistan where they were taken in by bounty hunters and turned over to U.S. forces, ultimately arriving at Guantanamo in June 2002.

At Guantanamo, after Chinese officials interrogated the Uighurs, the Bush administration alleged that the Afghan camp at which they were living was run by a member of the East Turkestan Islamic Movement (ETIM) which was further alleged to be associated with al Qaeda. Each of the Uighurs adamantly denies any connection to ETIM, and while some admit that they wanted to return to their homeland to defend their fellow Uighurs against the “Chinese occupiers” as they describe them, most appeared to be in the camp waiting for the chance to travel further west, hoping for political asylum in Turkey or Iran. U.S. courts have repeatedly held that even if the connection to ETIM was absolutely true, it would not be sufficient grounds to detain the Uighurs.

The Chinese government demanded the Bush administration return them to China where they would certainly face persecution and torture, and possibly execution. As international and domestic law prohibits such transfers, in 2004 the Bush administration began looking for another country that would be willing to accept the Uighurs. In 2006, Albania agreed to take five Uighurs from Guantanamo amid intense Chinese protests. No other country has since been willing to defy Beijing and accept the Uighurs.

U.S. District Judge Ricardo M. Urbina ordered the 17 remaining Guantanamo Uighurs brought to his courtroom on Friday and released into the Washington area Uighur community. It really was the only possible decision Urbina could make: the government concedes these men are not enemy combatants, meaning it has no grounds to detain them, and years of failed efforts to find them another home meant the only realistic possibility for timely release was in the United States. But just on the cusp of victory, the Uighurs were thrown back into purgatory by a panel of radical right-wing judges who have already ruled that Guantanamo detainees are not human beings.

The three judges are Karen L. Henderson, A. Raymond Randolph, and Janice Rogers Brown — yes, that Janice Rogers Brown of the recent furor over judicial appointments. In an opinion authored by Judge Henderson, the panel threw out a lawsuit brought by four released detainees against former Defense Secretary Donald Rumsfeld seeking damages for torture and religious abuse they suffered at Guantanamo. Henderson argued that the Religious Freedom Restoration Act, which plainly applies to all “persons,” does not apply to Guantanamo detainees, and that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants” so those who may commit illegal acts of torture are immune from any sanction. Words fail to adequately describe the outrage.

It seems likely that the government will prevail on appeal, and so the Uighurs will remain at Guantanamo until the next administration takes office. President Bush could end this tragedy whenever he wants by ordering the Uighurs’ release into the United States. One can only hope that whichever candidate prevails on November 4th will have more courage than the coward that currently resides at 1600 Pennsylvania Avenue.