In an extraordinary and unprecedented ruling in
a US District Court, Judge Ricardo Urbina has ruled that 17 wrongly imprisoned
Chinese Muslims at Guantánamo must be allowed entry to the United States.
It is, as the media has been reporting, the first time that a US court has directly
ordered the release of a prisoner at Guantánamo, and the first time that
a foreign national held at the prison has been ordered to be brought to the
United States. It is also a resounding blow to the administration's claims that
it can seize anyone it wishes as an "enemy combatant," and hold them
indefinitely, even if there is no evidence whatsoever to support their detention.
The road to Guantánamo
The 17 men – Uighurs (or Uyghurs) from Xinjiang
province in the People's Republic of China (known to the Uighurs as East Turkestan)
– have been a problem for the authorities since they were captured nearly seven
years ago. Refugees from Chinese oppression, 13 of the men had, by accident
or design, made their way to a run-down hamlet in Afghanistan's Tora Bora mountains,
where they spent their time making the place habitable, and indulging in futile
dreams of rising up against their historic oppressors. After the US-led invasion
of Afghanistan in October 2001, they were targeted in a US bombing raid, in
which several of their companions died. The survivors made their way to the
Pakistani border, where they were welcomed by villagers, who betrayed them soon
after, selling them for a bounty to US forces.
The other four Uighurs were caught up in similarly bleak scenarios. One had
fled from death and destruction in Kabul, and was caught as he attempted to
cross the Pakistani border, and three were randomly seized in northern Afghanistan
and imprisoned with several hundred foreign Taliban fighters in Qala-i-Janghi,
a fort run by General Rashid Dostum, one of the leaders of the Northern Alliance.
When Alliance troops, with support from US and British Special Forces, began
tying the men's hands behind their backs, some of the Taliban soldiers thought
that they were about to be executed, and rose up against their captors. In the
ensuing massacre – involving ground troops and bombing raids – the majority
of the prisoners were killed, but the Uighurs, along with 84 others, had stayed
in the basement, where they survived death by bombing, fire and flooding, and
they were part of a group of around 50 survivors who were eventually transferred
According to Chris Mackey, the pseudonym of a senior interrogator at the US-run
prisons in Kandahar and Bagram, which were used to process the prisoners for
Guantánamo, US forces realized almost immediately that the men were not
involved with al-Qaeda, but decided to hold them for their supposed intelligence
value. In his book The
Interrogators, Mackey explained that their arrival triggered a frenzy
of activity in the upper echelons of the administration. "The requests
for follow-up questions flooded in from Washington," he wrote, "and
every query that came in made it clear that US intelligence was starting from
practically zero with this group."
Transferred to Guantánamo, so that the
authorities could continue milking them for information about China, the US
authorities nevertheless persisted in identifying the men with al-Qaeda and
the Taliban, by claiming that they were associated with the East Turkestan Independence
Movement (ETIM), a Uighur resistance group. And when the administration sought
support from China for its invasion of Iraq – or, at least, a lack of opposition
– it obligingly designated ETIM a terrorist organization, and allowed Chinese
interrogators to visit Guantánamo, where, according to several of the
prisoners, they received threats that they would be killed if they ever returned
In 2004, when the Supreme Court ruled that the prisoners had habeas corpus
rights (in other words, the right to challenge the basis of their detention
in a federal court), the administration's cynical response was to introduce
military review boards at Guantánamo – the Combatant Status Review Tribunals
(CSRTs) – to assess whether, on capture, the prisoners had been correctly designated
as "enemy combatants," who could be held without charge or trial.
This was a hideously unjust process, as the prisoners were not allowed legal
representation, were confronted with often spurious allegations (frequently
produced through the torture or coercive interrogations of other prisoners),
and were also prevented from either seeing or hearing the "classified evidence"
against them, which could also have been produced in the same unjust, unprincipled,
and often illegal manner.
Lt. Col. Stephen Abraham, a veteran of US intelligence who worked on the
tribunals, caused a stir last year when he explained
how the information used in the tribunals frequently consisted of intelligence
"of a generalized nature – often outdated, often ‘generic,' rarely specifically
relating to the individual subjects of the CSRTs or to the circumstances related
to those individuals' status," and how the entire process was, essentially,
designed to rubber-stamp the prisoners' prior designation as "enemy combatants."
As a result, only 38 of the 558 prisoners were cleared for release after the
tribunals, and on a few occasions, when the result of the tribunal displeased
the administration, further tribunals were held until the desired result was
This happened to at least two of the Uighurs, Anwar
Hassan and Hammad Mohammed, but others were among the lucky 38 who were
found to be "No Longer Enemy Combatants" after the CSRTs, and five
of these men were finally released in May 2006, when Albania stepped forward
as the only country in the world prepared to risk the wrath of China by giving
the men a new home – albeit one with no Uighur community, no work prospects,
and no chance for them ever to be reunited with their families.
While these men struggled
to survive in Albania, the other Uighurs – who were all eventually cleared
for release after further review boards – remained in severe isolation in Guantanamo.
Like the majority of other cleared prisoners from human rights-abusing regimes
and Uzbekistan), few of the men were held in Camp 4, the only block that allowed
the prisoners to share dorm-like facilities, and the majority continued to be
held in maximum security cellblocks for 22 or 23 hours a day, prohibited from
meeting each other and with little, if any outside stimulation to break the
corrosive monotony of their existence, or their fears that they would never
be released or would, in fact, be surreptitiously returned to China.
In March, a letter from Guantánamo by one of the prisoners, Abdulghappar,
the suffering of the men in painful detail. He wrote: "Being away from
family, away from our homeland, and also away from the outside world and losing
any contact with anyone is not suitable for a human being, as, also, is being
forbidden from experiencing natural sunlight and natural air, and being surrounded
by a metal box on all sides." He also reported that one of his compatriots
had embarked on a hunger strike in protest, but was being punished for it, and
asked, "In the US Constitution, is it a crime for someone to ask to protect
his health and to ask for his rights? If it does count as a crime, then what
is the difference between the US Constitution and the Communist Constitution?"
This impasse over the Uighurs' plight was finally
broken in June, after the Supreme Court, dismayed that the habeas rights it
had granted the prisoners in 2004 had been removed in subsequent legislation,
stamped its authority by ruling
that the prisoners had constitutional habeas rights. This unblocked a queue
of contested habeas cases that had been on hold pending the Supreme Court's
ruling, and when the first of the cases, Parhat v. Gates, reached the
Court of Appeals in Washington, the judges' explosive ruling led directly to
Judge Urbina's historic ruling on Tuesday.
The three Appeal Court judges – noticeably, two Conservatives and a Liberal
that the CSRT's decision that Huzaifa Parhat, one of the Uighurs, was an "enemy
combatant" was "invalid," and "directed the government to
release or transfer" him (or to hold a new tribunal "consistent with
the Court's opinion"). In a savage denunciation of the CSRT decision, they
lambasted the government for the flimsy and unsubstantiated allegations and
associations it used to conclude that Parhat was an "enemy combatant,"
and in a memorable passage compared the government's argument that its evidence
was reliable because it was mentioned in three different classified documents
to a line from a nonsense poem by Lewis Carroll, the author of Alice's Adventures
in Wonderland. As Chief Judge Merrick B. Garland explained, "Lewis
Carroll notwithstanding, the fact the government has 'said it thrice' does not
make an allegation true."
With the Parhat ruling, the government's attempts to insist that any
of the Uighurs were "enemy combatants" were clearly no longer tenable.
At a hearing in August, when the idea was first floated that they should be
released into the United States, Judge Urbina "hinted," as the Washington
Post described it, "that he was intrigued by the detainees' proposal,"
and stated, "I don't understand why that would not be a viable option."
The Justice Department did not respond directly to Judge Urbina's comments,
but its lawyers argued in court that only the President had the authority to
allow the men into the United States. However, the Post explained that,
although the issues were "complex," legal scholars "generally
disagreed with the government's position, saying the judge has the ultimate
authority" to decide whether to bring the men to the US mainland.
The Justice Department also insisted that the judge was legally prevented from
ordering the Uighurs' entry into the US if they had ties to terrorist groups.
As Parhat v. Gates showed, however, neither Huzaifa Parhat nor, by extension,
the other 12 men seized with him had ties to terrorist groups, and as the weeks
passed the government fatally undermined its own arguments: first it announced,
in belated response to the Parhat ruling, that it would not arrange a new trial
for Parhat and that it would "serve no purpose" to continue trying
to prove that he was an "enemy combatant"; then it did the same for
four of his compatriots; and on September 30 it added the last 12 Uighurs to
its list of non-combatants.
Welcome to America
As a result, Judge Urbina came to work on Tuesday
facing a stark but simple decision: to obey the US Constitution or to turn his
back on all he had been brought up to believe in.
He chose to obey the Constitution. Ordering the 17 men to be brought from Guantánamo
to the courtroom on Friday, he indicated that he would release them to supporters
in the United States – in Florida, and in the Washington DC area – who would
look after them while the government worked out if it could come up with another
solution that did not involve their continued imprisonment.
"I think the moment has arrived for the court to shine the light of constitutionality
on the reasons for detention," Judge Urbina stated, adding, "Because
the Constitution prohibits indefinite detentions without cause, the continued
detention is unlawful."
He also explained, as the New
York Times described it, that "the men had never fought the United
States and were not a security threat," and impatiently rejected a government
request to stay his order to permit an immediate appeal. "All of this means
more delay," he said, "and delay is the name of the game up until
this point." Drawing on the historic right of a judge to demand that a
prisoner be brought before him (the core, in fact, of habeas corpus, which means,
literally, "you have the body"), he added, "I want to see the
When the government suggested that immigration officials might detain the men
on arrival in the United States, Judge Urbina snapped, "I do not expect
these Uighurs will be molested by any member of the United States government.
I'm a federal judge, and I've issued an order." Crucially, as the Times
put it, he "underscored the significance of his ruling with repeated references
to the constitutional separation of powers and the judiciary's role," rejecting
arguments put forward by the Justice Department as "assertions of executive
power to detain people indefinitely without court review," which, he said,
were "not in keeping with our system of government."
As the judge rose to leave the bench, the crowded courtroom burst into applause.
Members of the Washington DC Uighur community, who settled here in the 1980s,
when they fled Chinese oppression and were regarded as anti-Communist heroes,
had come to lend support, and their offers of help – and those offered by community
leaders from Tallahassee, Florida, who have also been involved in plans to welcome
the Uighurs – were credited with helping the judge make his decision.
Nury Turkel, a D.C.-based aviation lawyer, explained,
"Our community said, 'We are here to help. Release them into our custody.'
We have people offering them places to stay, English training, employment. We
don't want anyone to think they will be a burden on society."
Although the government immediately pledged that it would appeal Judge Urbina's
ruling, and the White House's press secretary, Dana Perino, claimed, somewhat
hysterically, that it "could be used as precedent for other detainees held
at Guantánamo Bay, including sworn enemies of the United States suspected
of planning the attacks of 9/11, who may also seek release into our country,"
no decision had been made by the close of business on Wednesday.
reported, the government had filed an emergency motion, reiterating its argument
that "only the executive branch, not the courts, may decide whether to
admit an alien into the United States," and insisting that Judge Urbina's
"threatens serious harm to the interests of the United States and its
citizens by mandating that the government release in the nation's capital 17
individuals who engaged in weapons training at a military training camp."
In response, as the Associated
Press reported, the prisoners stated that Judge Urbina had "made the
right decision in ordering their release since they are no longer considered
enemy combatants," and their lawyers argued that delaying their release
would mean that "the government would prolong by months, and perhaps years,
an imprisonment whose legal justification it has conceded away."
In the hope that justice will prevail, I leave the final word – for now –
to Sabin Willett, a Boston-based lawyer who represents some of the Uighur prisoners.
Willett and his colleagues have campaigned assiduously for their clients, and
after arguing the case before Judge Urbina, he stated,
with a dignity sorely lacking from the government's rhetoric, "In the history
of our Republic, the military never imprisoned any man so harshly, and for so
long, let alone men who are not the enemy. We have broken faith with the rule
of law, and been untrue to the generosity of spirit that is our national character."
Note: Early on the morning of October 9, Reuters reported that a federal
appeals court temporarily blocked the Uighurs’ release, granting the government
a stay until October 16, in order to give the court more time to consider the
dispute. The three judges added, however, that the stay “should not be construed
in any way as a ruling on the merits” of the government's request.