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October 09, 2008

So What's All This About Guantanamo Bay Detainees Being Released into the United States?

I've been meaning to write about this because the short version sounds pretty shocking:

A U.S. district court has ordered seventeen Guantanamo Bay detainees to be released into the United States.

The slightly longer version is also pretty shocking:

The military decided in 2003 that ten Guantanamo Bay detainees are not enemy combatants in the War on Terror, but held them for five years nevertheless. Five more were cleared in 2005, but held nevertheless. Another was cleared in 2006, but held. And another this year, but held nevertheless. Now a U.S. district court has ordered the military to release all seventeen into the United States.

The government held onto the detainees and insists that it should be allowed to continue to do so because it couldn't find a country willing to accept them (over 100 have been asked). The detainees are Chinese nationals and Afghanistan, where they were captured, doesn't want them back.

China has actually demanded their return. But there's a problem. The U.S. government won't repatriate the detainees because it believes there is a very good chance they will be tortured if they are returned. Muslim Uighurs are subject to particularly horrendous treatment by the Chinese government owing to their religious and political beliefs.

And there's another problem. Following the district court's decision, the White House announced that the Uighurs would be a security risk if released into the United States. The nature of the specific risk hasn't been disclosed.

So, really, as far as the U.S. government is concerned, these detainees have nowhere to go. The district court disagreed and specifically (and correctly, I believe) noted that the military has no authority to detain individuals who are not enemy combatants. The court gives the military some lee-way for "winding up" detentions and looks prepared to allow anywhere from six months to a couple of years. Five years, however, is too long.

The recent Supreme Court case, Boumediene v. Bush, which gave Guantanamo Bay detainees constitutional habeas rights, is taking a lot of the blame for this district court decision. It's true that the district court judge cites to Boumediene. But as flawed as that decision was, this same result would have occurred regardless. The blame lies with a few Supreme Court justices who consistently and persistently misread, misquote, and misapply U.S. and international law in order to reach politically-motivated results.

Justice O'Connor laid the foundation for this order in Hamdi v. Rumsfeld (2004), when she wrote that the AUMF 2001 only authorized detentions for individuals determined to have planned, authorized, committed, or aided the 9/11 attacks or harbored those who did. (I believe this part of her decision wasn't wrong.) However, Justice Stevens made it possible in Rasul v. Bush (2004) for non-citizen Guantanamo Bay detainees to seek relief in federal courts. And with that unprecedented (really) reading of the law, this case was inevitable.

At the moment, the district court order has been stayed so that an appellate court can consider the situation. It'll be interesting to see where they go with it. As far as I can tell, the court cannot force the government to alter its determination that China would torture the repatriated detainees. Nor can it force the military to consider them enemy combatants.

Instead, the court will have to reconcile two competing provisions of the Constitution. First, Congress' power over immigration, as it has been delegated to DHS and DOJ, would seem to forbid the detainees' admission into the U.S. Second, the detainees' habeas rights seem to require that they be released from military custody. Those rights are meant to curtail the power of the federal government, so unless the military manages to come up with an alternative to holding them at Guantanamo Bay, I expect we'll be seeing Uighurs in D.C. soon.

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posted by Gabriel Malor at 01:51 AM

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