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November 28, 2008

Kafka and Uighurs at Guantánamo

by Ray McGovern

"There is no right to due process for an alien who is not here," insisted the 44th Solicitor General of the United States, Gregory G. Garre, proudly representing the President of the United States, George W. Bush.

Garre is a teacher of the law, you see, and was attempting to show a three-judge panel of the US Court of Appeals for the D.C. Circuit why one of their colleagues in a lower court had overreached.

Garre claimed that US District Judge Ricardo Urbina had exceeded his authority on Oct. 7, 2008, in ordering that 17 men held in Guantánamo for almost seven years be brought to his court for a fair hearing on the modalities of their release.

Urbina wanted government lawyers to face the 17 prisoners and present the government's argument as to why they should remain in detention.

"Aliens have no rights," Garre kept repeating. And they REALLY have no rights, he seemed to be saying, if they are "not physically in the United States."

And that, of course, was precisely the reason former Defense Secretary Donald Rumsfeld and his clever band of Mafia lawyers wanted to keep such "aliens" offshore in the prison created at the US naval base in Guantánamo, Cuba.

Garre was determined to prevent their feet from "touching our soil," as he put it, on the chance they might then persuade some judge to let them appear before an impartial court.

NON-Enemy-Combatants

Never mind that the detainees had been deemed NON-enemy-combatants; never mind that the US government had already conceded that, despite initial suspicions that they were terrorists, the US government could adduce no evidence to support that accusation.

Never mind that they had been unlawfully incarcerated for almost seven years. Garre spoke of "unlimited Executive power" in these matters. He kept insisting, "We have the authority to detain them." Garre added that the Justice Department had tried hard to find a country willing to accept them but failed.

The unfounded suspicion of terrorism, for which the US was responsible, did not make them attractive candidates for immigration. And besides, no country wanted to risk antagonizing China.

You see, these prisoners are Uighurs, a Turkic people of Central Asia (pronounced WEE'-gurz), five million of whom live in China's northwestern province of Xinjiang. The Han Chinese have suppressed the Uighurs, their culture and their strong sense of nationalism for decades.

The Chinese government is fond of referring to Uighur nationalists as "terrorists," and has been pleased to use the US-led global "war on terrorism" as an additional pretext to suppress them.

An ancient and gifted people, Uighurs created a "Uighur empire" that stretched from the Caspian Sea to Manchuria and lasted from 744 to 840 CE. They considered trying to conquer China, but chose instead an exploitative trade policy to drain off its wealth into Uighur coffers.

Compared to Europeans of the time, Uighurs were considerably more advanced. Documents show, for example, that a Uighur farmer could write down a contract, using legal terminology.

Some western scholars contend that acupuncture was not a Chinese, but rather a Uighur discovery. Famine and civil war brought down the Uighur Empire in the middle of the 9th century, and they were then overrun by other central Asian peoples.

Wrong Place, Wrong Time

So how did Uighurs get to Guantánamo?

Fleeing Chinese oppression, many Uighurs found their way to Afghanistan where they were living in a self-contained camp when the US attacked in October 2001. They were captured in the wake of the fighting, many of them by Pakistani bounty hunters who proceeded to sell them to US forces.

Twenty-two Uighurs ended up in Guantánamo, joining others with the undeserved Rumsfeldian sobriquet "the worst of the worst." After "interviewing" them extensively by late 2003, US interrogators had concluded that few, if any, were a threat.

Under international law, the only country required to accept displaced persons is their country of origin. But China had been making a practice of incarcerating Uighurs with little if any proof of any involvement in violent acts. The Uighurs in Guantánamo did not want to trade one prison for another.

No third country, however, would accept them – except Albania, which welcomed five in 2006.

Some American judges have agreed with the two senior U.N. investigators, who have said that, under international law, the US must immediately release the Uighur detainees.

In December 2005, District Judge James Robertson ruled unequivocally in favor of releasing the Uighurs, asserting, "This indefinite imprisonment at Guantánamo Bay is unlawful." He wanted them released in the US, but ended up deciding that existing law did not give him "the power to do what I believe justice requires."

It was not until almost three years later that Judge Ricardo Urbina, on Oct. 7, 2008, took the bull by the horns and ordered the 17 Uighurs brought to the Washington, D.C. area where local Uighur families were prepared to shelter them, and Lutheran churches were eager to assist in the resettlement process.

But US government lawyers appealed, arguing that letting them come to the US would set a bad precedent with respect to others still held at Guantánamo, and the appeals court stayed Urbina's order.

On Monday morning a three-judge appeals court met to hear arguments as to whether or not Urbina's decision should be overturned. Judge Judith W. Rogers, appointed by President Bill Clinton, had objected strongly to the stay, pointing out, "The government can point to no evidence of dangerousness" from the Uighurs.

At the hearing, she subjected Barre to strong questioning. Her colleagues Karen Henderson and A. Raymond Randolph, both appointed by President George H. W. Bush, seemed much more sympathetic to the government's position that the Uighurs should not set foot in the United States.

It was the tone of the Solicitor General's argument that hit me strongest. Here is an unmitigated tragedy for which the US (together with Pakistani bounty hunters) is responsible.

Small wonder that on Oct. 7, Judge Urbina shouted, "Enough. Six-plus years is enough. Bring them here and let the government defend its extraordinary position."

There has been no information on what the three-judge panel that met on Monday will eventually decide, or when. It may take weeks, we were told.

Meanwhile? For the Uighurs, more languishing in Guantánamo. Don't be overly concerned, though, said Barre. He told the court that they had been moved to a "less restrictive part of the prison in Guantánamo, where there are amenities like DVD players."

Aliens Have No Unalienable Rights?

I thought the Declaration of Independence was what we were all about as Americans:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness…"

Where does it say "except for Uighur aliens?"

When we were a younger country and much closer to our roots, France decided to mark the centenary of the Declaration of Independence by giving us the Statue of Liberty to watch over the streams of immigrants coming to our shores.

Aliens like my grandparents were not turned back – so long as they were found to be sound of body. The statue was not actually emplaced until October 1886, less than two years before my grandparents arrived in New York from Ireland.

My grandparents were aliens – but fortunate ones. They could go to Liberty Island; they could read Emma Lazarus's sonnet and rejoice at the words:

"…Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!"

Guantánamo an Abomination

Maybe we need to pause this Thanksgiving. The Uighur prisoners should be at table with us, not in confinement watching DVDs. What has happened to us? Have we lost our soul?

Guantánamo is an abomination – a violation of the spirit and letter of the Constitution bequeathed to us and to our children. A negation of the Judeo-Christian heritage many of us claim. It could hardly be clearer:

"You shall not violate the rights of the alien." (Deuteronomy 24:17)

My friend and mentor, Dean Brackley, S.J., distilled the Bible, long before he left for El Salvador to take the place of one of his brother Jesuits slain in November 1989, into this observation:

"It all depends on who you think God is, and how God feels when little people get pushed around."

Thanksgiving?

Yes, there is still much to celebrate this Thanksgiving.

A new President-elect, a lawyer with a sense of justice – and a new beginning. A person who not only claims to be, but also seems, so far, to be what he claims – a follower of Jesus of Nazareth, who was tough on hypocrisy: "How terrible for you teachers of the law and Pharisees, you hypocrites…" (Matthew 23: 13ff)

What we can be grateful for is a Constitution that provides for a change in government on a periodic basis, so that even when a President is allowed by cowardly politicians to ignore that precious gift of our Founders and amass king-like power, he can be dethroned by vote of the people.

We can be thankful for Barack Obama's pledge to close the Guantánamo prison, and for the fact that we are free to keep pressing him to proclaim liberty to captives and set free the oppressed – including, of course, Uighurs and others in similar circumstances.

As the National Lawyers Guild has urged, Obama must ensure that all prisoners at Guantánamo are released, repatriated, resettled, or (if there is probable cause to believe any have committed a crime) brought to trial, in strict accordance with international and national law, and the principles of fundamental justice regarding criminal proceedings.

I would add the suggestion that we as a country make an open apology and ask the rest of the world for forgiveness for our straying so far from the ideals upon which our country was founded. Then there can be true thanksgiving for real closure, and an end to a particularly disgraceful chapter in our country's history.

And then we shall ALL be set free – not only the Uighurs.


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Ray McGovern's Bio

Ray McGovern was a CIA analyst for 27 years – from the John F. Kennedy administration to that of George H. W. Bush.

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