Shameful

by hilzoy

From the Washington Post:

"The Obama administration, picking up the argument of its predecessor, is opposing the release of Chinese Muslim detainees at Guantanamo Bay into the United States.

In papers filed with the Supreme Court late Friday, the administration says a group of Uighurs (pronounced WEE'-gurz) are being lawfully held at the U.S. Navy base in Cuba even though they are not considered enemy combatants. (...)

The Uighurs' "continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States," Solicitor General Elena Kagan told the court.

The men are held apart from the other detainees, in the least restrictive conditions, Kagan said. "They are free to leave Guantanamo Bay to go to any country that is willing to accept them," she said."

The administration's brief is here (pdf). One note: I think it's not quite accurate to say that the administration is "opposing the release" of the Uighurs in this brief; it is arguing that it cannot be compelled to do so by court order. That said:

I have no idea whether or not the administration's argument is correct as a matter of law. Moreover, I don't care. Whatever the law says about whether it can be forced to admit the Uighurs, the administration has the right to admit them voluntarily. If it cannot find another country that is willing to take them, then it should.

We set up a system that gave people incentives to turn over people they claimed were foreign fighters, whether they were or not. We then dismantled all our normal procedures for separating combatants from non-combatants. It should not surprise anyone that we ended up detaining people who were innocent. 

I have no problem with the government taking some reasonable period of time to try to identify another country that is willing to take detainees who cannot be returned to their own countries. But these detainees have been held for seven and a half years. That's not a reasonable amount of time to tie up loose ends; it's a tenth of a normal lifespan. 

We screwed up. We should step up to the plate and do what's right. Seven and a half years is too long.

And one other thing: the administration says this about the Uighurs: "Petitioners 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." (p. 11) As Registan notes, this is false. The reason we cannot send them back to China is not that they are "unwilling" to go back; it's that we believe, with good reason, that they would be tortured or killed if they were repatriated. That means that it would be illegal for us to send them back. 

It's also a bit disingenuous for the administration to argue that the Uighurs are free to leave. The Bush administration has previously argued that they cannot be set free in Guantanamo, for the perfectly good reason that Guantanamo is a military base, and we do not normally allow people free access to military bases. 

Comments

[Point]

What this comes down to is this:

With their home country not able to take them (for whatever reason) and no other countries willing (at present) to accept them, the only humane and decent option left is to give the Uighurs asylum.

If there was a compelling reason not to give the Uighurs asylum, then the administration would have a point in saying that keeping them in Guantanamo (for the time being) is the only option.

But, as Hilzoy has so assiduously argued, not only is there no compelling reason, there isn't even a remotely sensible argument to be made against doing the right thing by these men -- unless you count political complications, and that doesn't come close legally or morally.

[Sapient]

"the administration has the right to admit them voluntarily"

Are you sure, Hilzoy? The end of the brief discusses the House and Senate bills which deny funding to allow entry of anyone from Guantanamo into the United States. The brief then states that many of the problems presented by the case will be addressed during the reconciliation process. As a matter of law, the government opposes certiorari.

I agree that the situation is shameful, but the problem is with the Congress. At least, that's how I interpret it. The Obama administration can't just make law up.

[Point]

Actually, reading Sapient's point, I'm a little unsure -- if Congress can legally block asylum to any and all Guantanamo detainees, then the administration's case may hold.

Though that wouldn't mitigate the moral disgrace (at best, maybe, shifting some to congress...)

[Gary Farber]

"...if Congress can legally block asylum to any and all Guantanamo detainees, then the administration's case may hold."

No law proceeding from either bill has been signed by the president; legislation in process is by definition not law.

[Point]

Thanks for the clarification Gary.

[bob mcmanus]

"...it is arguing that it cannot be compelled to do so by court order"

Isn't this much worse?

Meet the new Gandhi war criminal.

[novakant]

I wonder if this might have something to do with China financing the US' debt.

[Sapient]

It seems to me, looking at the briefs, that the Uighurs haven't applied for asylum, or any other entry through the immigration laws. What they're asking is to be "released" into the United States by virtue of the habeas petition. (I'm not sure if I'm understanding this correctly having just looked at it this evening.)

The Administration doesn't want to accept the Uighurs on some legal basis that will require it to be bound to accept other people on the same terms. If the Uighurs were applying for asylum or refugee status, the arguments would perhaps look different. There must be some reason (and I haven't studied up on what it is) that they're not going that route.

[CharleyCarp]

Sapient, they can't apply for asylum, because they're in Guantanamo. (We applied for one of our clients a few years back -- it's outside the country for such purposes).

I think the government's position on executive power here is dead wrong. Core habeas includes the power of the court to order the jailer to bring the prisoner to the courthouse. This is not open to question.

[GoodOleBoy]

Since we now have had two significantly different administrations find this issue rather intractable, perhaps the actual solution will take more than the simple-minded approach here advocated. I suspect we will get an earthshaking event soon that will diminish this topic.

[Sapient]

CharleyCarp, thanks for your insight.

I'm certainly on the Uighur's side, but supposedly so is the government, so I'm trying to figure out what they're trying to do in their argument. It seems to me that the government is arguing that habeas is no longer an issue since the Uighurs are already "released" in Guantanamo, and not in custody. If there's no habeas anymore, there's also no bringing the corpus to the court.

Obviously, as a practical (and moral) matter, they aren't free, since no one (including the U.S.) will allow them into their country. I oppose those who won't allow them in (and agree that it's shameful), but am wondering how the executive has authority to bring them into the country and release them outside of immigration laws. (Not only asylum, but visas, etc.) I'm not an immigration lawyer, so I have no idea about this.

I don't mean to be callous to their plight - I'm just trying to understand the legal issues involved, and why the government is taking the stance it is. It seems that the government is probably worried that they can't be released into the United States as a one off, without giving other less sympathetic characters a case for being let in. All this contrary to the overwhelming Senate vote.

[Nell]

Had the Obama administration done the right thing to begin with, and dropped the Bush administration's viciously petty appeal of Judge Urbina's October 2008 ruling, they wouldn't have to be lying to the courts now ("reluctant to return"; outrageous b.s.).

They didn't want to release the Uighurs at the beginning of their term because it might screw up Sec. Clinton's visit? Okay, but they could have spent the delay time working with Sens. Webb and Warner, laying the political groundwork for a real grasp of the true situation with the prisoners -- that most have no connection with terrorism at at, and pose zero threat to Americans.

Instead, they've chosen at every turn to avoid taking any responsibility for the decisions they're making, avoiding telling the truth about what the law requires. So now they just about own the entire mess -- a stew of cruelty, indifference, and politics above law.

[Nombrilisme Vide]

@GOB:
Since we now have had two significantly different administrations find this issue rather intractable, perhaps the actual solution will take more than the simple-minded approach here advocated.

That, or the two administrations are not as significantly different in these matters as you're suggesting. Or option C, the current administration is a bunch of unprincipled cowards who are more concerned with looking tough for the Beltway crowd then behaving morally. Options B and C aren't mutually exclusive.

[Warren Terra]

One thing I haven't seen in the Guantanamo detention discussion (which for this purpose I'm separating from the abusive treatment issue) is the precedent that was established under Clinton in the 90's. No, I don't mean rendition (which I'd classify with my excluded issue of abuse) - I'm referring to Haitian boat people. I don't recall seeing much if any mention of it these past seven years, but in the 90s Clinton, facing a wave of people trying to flee horrific levels of violence and poverty in Haiti to the US, and unwilling to detain them in the US where they could make asylum claims, instead established detention facilities at Guantanamo - and thus established precedents for issues such as those CharleyCarp mentions encountering upthread.

Now, I'm not saying I have a better idea than Clinton did for what to do under the circumstances he faced. But this whole extraterritorial detention issue, suspect as it is, was being used to prevent unwanted immigrants long before it became cover for torture, and for people who (like the Uighurs) could not be safely returned to their homelands long before it was used for prolonged unregulated detention of people who actually had a home to which they could be released.

[Nell]

@Warren Terra:

One reason that the Clinton immigration precedent is not often brought up is the significance of the distinction between people who arrive of their own accord (through means other than legal immigration procedures) on U.S. territory, and those who are taken prisoner by force from a variety of places around the world and held against their will.

FWIW, I don't think that the Clinton administration ever tried to claim that the immigration detention center at Guantanamo was in some grey area beyond the reach of U.S. laws. I could be wrong, as I took something of a break during those years from closely following executive branch outrages, though when I did check in I found plenty of indications that they were as plentiful as ever.

[Sapient]

Perhaps it's just wishful thinking, but I'm unwilling to ascribe bad faith to the current administration. At least not yet.

The Uighurs were apparently in an effort to pursue armed insurrection against the Chinese government. People may not like the way the Chinese government treats the Uighurs, and may be sympathetic to their plight and their tactics. But the fact is, they were probably engaging (knowingly) in activities involving significant risk to themselves and to the interests of the Chinese. They are, perhaps, heroic. It may be a struggle that we should be supporting. There's no excuse for any kind of abuse (torture) that they may have endured, and the fact that they were detained as "enemy combatants" makes no sense. I would like to see them find safe haven in the United States at the earliest possible time. But I don't think that, given their situation, they are necessarily entitled to do whatever they choose, or should expect not to have had difficulties. Even though I support them in trying to attain asylum, or whatever legal status they can, in the United States, it doesn't seem to be something that people training for armed insurrection should expect.

Our relationship with China is complicated and important, even more so now that North Korea is firing daily nuclear weapons blasts. Obama wants to close Guantanamo, and resettle these and other people who were held there. I don't blame him for trying to do so with the least possible political and foreign policy fallout.

[Sapient]

Nell states that during the Clinton administration, the executive outrages "were as plentiful as ever."

Where are you, Turbulence? Remember Election 2000.

[Warren Terra]

Nell, the US detained people it encountered on the high seas, and tossed them in a prison camp. At least some of them were probably in craft that would have made it to US territory if not interfered with; at least some were probably unwilling to be picked up by the Coasties. The US did not release those people to go on their way, either on the high seas or from the place to which they had been removed, and the US did not consider those people to be under US jurisdiction for the purpose of making asylum claims. Nor did the US (and nor could it) repatriate them to their homeland. I still think that, leaving aside the abuse and the precise manner in which they were acquired, the parallel to the Uighurs is pretty darn close. And while people might be slightly less willing to have alleged terrorists released "into their neighborhoods", they weren't so hot on Haitian boat people, either.

Sapient, you appear to presume that the Uighurs indeed were seeking training in armed insurrection - meaning terrorism, because I believe the main form of Uighur insurrection has been random bombing. If we can prove that in a fair hearing, then we should probably just turn them over to China, even knowing their fate. That is, if we can prove that. My understanding is that they were Uighurs who had escaped over the border, and all else is allegation and rumor.

[RealitasMordet]

Allowing any Gitmo detainee to go free in the United States is so toxic that it is probably tantamount to political suicide (and it might still be even without the perpetual demagogic fear-mongering by the Republicans). It sucks, but that's the way things are. Obama has already shown political courage, but this goes beyond that into total political unconcern, which is too much to expect from any politician.

[Nell]

The prisoners are just not real people, full and equal human beings, to most commenters here -- and they're outright subhuman in the eyes of most Americans, apparently.

This is a line by Frederick Douglass about Abraham Lincoln with obvious application to the president who takes Lincoln as an avatar:

Viewed from the genuine abolition ground, Mr. Lincoln seemed tardy, cold, dull, and indifferent; but measuring him by the sentiment of his country, a sentiment he was bound as a statesman to consult, he was swift, zealous, radical, and determined.

It's the sentiment of my country that disgusts me. I'm not willing to shrug and accept that going along with it to the degree that Obama has done is the most he can do in practical political terms.

It's illuminating to watch those who believe he can't do more blaming the prisoners for their situation. Illuminating to the point of migraine.

[Point]

Props to Nell for the Douglas quote -- and for pointing out its relevance here.

[Sapient]

No one is "blaming the Uighurs" (just as one doesn't blame an athlete for suffering injuries, even though sports poses risks), and ideally they should be released at once. There are practical obstacles, politically and legally, in doing so. Trying to understand the obstacles (rather than pretend they don't exist) is a way to overcome them.

Lincoln proceeded slowly so that he would win. Obama is proceeding slowly so that he will win.

[Nell]

Sapient: I don't blame [Obama] for trying to [close Guantanamo] with the least possible political and foreign policy fallout.

He has gone about it in a way that virtually guarantees domestic and fp fallout: By failing from the beginning to make the case for the truth about the prisoners -- in fact by actively lying about them; by continuing the Bush administration's last-minute, petty appeal of the Urbina ruling; by failing to resettle any prisoners here, even the easiest cases; by doing nothing to prevent and much to encourage the display of shameful ignorance and cowardice in Congress until after they'd voted.

Speaking of Frederick Douglass: Obama on this issue is the perfect example of someone who wants crops without plowing.

Lincoln, at the comparable stage in his presidency, was still an enthusiastic proponent of shipping African-Americans to colonies in Africa.

Hard to imagine what it would take to move Obama to leadership on this.

[stonetools]

THe Uighurs were found in training camps in Afghanistan run by al Queda. Its doubtful that they are quite the teddy bears that hilzoy et al make them out to be. I'm with sapient on this. we can't just let them out in Virginia saying "Welcome to America guys". We also just can't take their say so that they won't take action against the Chinese Embassy in the US.

Obasma is wisely taking a long look at this. Lets give him the benefit of the doubt on this.

[Gary Farber]

"THe Uighurs were found in training camps in Afghanistan run by al Queda."

First of all, that's a lie.

"Its doubtful that they are quite the teddy bears that hilzoy et al make them out to be. I'm with sapient on this. we can't just let them out in Virginia saying 'Welcome to America guys'."

Quite a chain of reasoning: I assume that you believe that everyone found to be in the same place as any suspected criminal should be locked up, because "we can't just let them" out to wander America freely?

If not, what's the distinction you use to separate the two cases?

The Uighurs have been found by the U.S. government to not be enemy combatants, and no danger to the U.S.: why do you disagree? What facts are at your command that the U.S. lacks?

Truth: "Twenty-three Uighurs--members of an ethnic group that dominates China's desert northwest--were captured in the border region between Pakistan and Afghanistan and detained by U.S. authorities at Guantanamo in 2002."

Not "at training camps."

In 2003:

[...] In late 2003, the Pentagon quietly decided that 15 Chinese Muslims detained at the military prison in Guantanamo Bay, Cuba, could be released. Five were people who were in the wrong place at the wrong time, some of them picked up by Pakistani bounty hunters for U.S. payoffs. The other 10 were deemed low-risk detainees whose enemy was China's communist government -- not the United States, according to senior U.S. officials.

More than 20 months later, the 15 still languish at Guantanamo Bay, imprisoned and sometimes shackled, with most of their families unaware whether they are even alive.

They are men without a country. The Bush administration has chosen not to send them home for fear China will imprison, persecute or torture them, as the United States charges has happened to other members of China's Muslim minority. But the State Department has also been unable to find another country to take them in, according to U.S. officials and recently filed court documents.

Other detainees cleared of terrorism charges have also languished for years at Guantanamo Bay, but all have been sent home or are in the process of being transferred. For the Chinese Uighurs (pronounced WEE-gurs ), there is no end in sight.

[...]

All 15 Uighurs have actually been cleared for release from Guantanamo Bay twice, once after a Pentagon review in late 2003 and again last March, U.S. officials said.

Hundreds of other detainees have been sent home from Guantanamo: are you worried about them? Why are you worried about this handful of people? It can't even be that they have special Guantanmo cooties, since you're not objecting to the release of anyone else from there.

"Its doubtful that they are quite the teddy bears that hilzoy et al make them out to be."

Nice use of the passive voice to avoid stating that you're doubtful, which you're avoiding because you can't state any reason.

If you can state a reason, and support it with facts, go ahead and do so.

"We also just can't take their say so that they won't take action against the Chinese Embassy in the US."

Because why? I think we can't take your say so that you won't attack the Chinese Embassy: let's lock you up. It's doubtful you're quite the teddy bear you make yourself out to be, after all, given the way you advocate lawlessness.

[Sapient]

Just to clarify: I don't know whether the Uighurs are teddy bears or terrorists (against the Chinese). I'm pretty confident, from what I've read, that they aren't going to harm the United States, therefore I wouldn't mind the Uighurs living in Virginia.

I do question whether anyone seeking "refuge" in the Afghanistan/Pakistan border can really have expected to have the serene and comfortable lifestyle of a middle class Washington D.C. suburbanite. Not that I'm against them having that (in fact, I'm all for it) but realistically, if I chose to go live in that area of the world, I might expect to have unusual (and bad) things happen to me. That absolutely doesn't excuse the fact that the U.S. government is the agent that perpetrated wrongs against the Uighurs. The question now is, what do we do in light of the fact that there are legal and political problems involved in releasing them.

The legal issues are what I originally was writing about. I don't think the government's legal position is taken in bad faith. There may be legitimate reasons extending beyond the rights of the particular Uighurs as to why the government is taking the position it has assumed, and I am trying to figure out what those reasons are before I condemn the government.

[Sapient]

Oh, and again to clarify: I'm not "blaming" the Uighurs. I admire people who take personal risks to fight for their principles. But in doing so, they can get caught up in complicated situations. (And I'm not counting torture, shackling, etc., in the list of "complicated situations" that they should have expected to encounter in the hands of the United States.)