by James Oliphant
In a stinging rebuke to the Bush administration, a federal judge Tuesday ordered the Pentagon to immediately release a small group of Chinese Muslims from Guantanamo Bay into the United States.
U.S. District Judge Ricardo M. Urbina said in a landmark ruling that it would be wrong for the Bush administration to continue holding the 17 detainees, known as Uighurs, since they are no longer considered enemy combatants.
The Uighurs have been in custody for almost seven years and have been cleared for release since 2004, but the government has not been able to find a country willing to take them in. Bush administration lawyers argued Tuesday that Urbina did not have the authority to order the Uighurs released into the United States.
Urbina called the detention unlawful saying the Constitution prohibits indefinite imprisonment without charges. The detainees are to be placed into custody of a small, immigrant community of Uighurs in the Washington, D.C. area.
The detainees at issue are Muslims from western China, picked up in Afghanistan after the Sept. 11 attacks on suspicion of having ties to the Taliban. Some Uighurs (pronounced WE-goors) are part of a movement that seeks separation from China to form their own Islamic nation.
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The Chinese government considers Uighurs a threat to the country's security and is accused of widespread human-rights abuses in their home province of Xinjiang. The U.S. State Department would not return Uighur detainees at Guantanamo to China because of fears that they will be imprisoned or tortured.
But the U.S., too, had more recently branded Uighur separatists as terrorists, even though a decade ago they were cheered by conservatives such as the late Sen. Jesse Helms for opposing the Chinese government.
The Guantanamo Uighurs scored a major victory in June when he became the first one, Huzaifa Parhat, became the Guantanamo detainee to have his detention ruled invalid by a U.S. federal appeals court. Since then, his lawyers have been trying to free him and other Uighurs from the naval prison, but the Bush administration has resisted, arguing, in essence, that even though there is no longer any basis to hold him as an enemy of the state, it still has the power to decide how, where, and when to let him go.
His lawyers went before Urbina seeking a court order providing an extraordinary remedy. They wanted Parhat to come to the U.S. to testify that he poses no threat. And after that, they wanted him released in the U.S. to live until another home can be found for him.
"The Uighurs are really the poster boys for what happens when you exclude judicial review from something like Guantanamo," said Jason Pinney, a Boston-based lawyer for Parhat, in an interview last month. "You get abuse."
The Justice Department would not allow Parhat to even set foot in this country. Atty. Gen. Michael Mukasey has long resisted any efforts to allow detainees inside the country, even for court hearings.
But cases such as Parhat's will grow increasingly common as the Pentagon pushes to empty Guantanamo and resettle detainees who are no longer deemed to be enemy combatants or guilty of war crimes. And the results of his litigation could help establish whether, at some point, the government forfeits control of its captives' movements.
Parhat's situation provides a little insight into the Pentagon's grounds for holding some of the detainees in the first place. In Parhat's case, a three-judge panel held that there was simply no evidence in the record to support a finding that he should have been held as an enemy combatant. The government had argued that it was enough that Parhat was a Uighur, that he had been "affiliated" with a Uighur independence group, and that the group had been "associated" with Al Qaeda and the Taliban.
While details of his capture and imprisonment are murky, it is known that Parhat traveled from China to Afghanistan in 2001. There, he lived briefly in what his lawyers say was a Uighur refugee camp but what the government terms a terrorist training site. He was turned over to American forces in 2002.
Still, the Defense Department has produced no evidence that Parhat was looking to wage war against the U.S., and Parhat told interviewers that his enemy is China. Parhat's lawyers suggest that Parhat and about 20 other Uighurs were held at Guantanamo because the U.S. wanted to enlist China's support for the invasion of Iraq in 2003.
Pinney said the Bush administration branded a Uighur separatist group a terrorist organization only after the Uighurs were imprisoned at Guantanamo, noting that the Pentagon gave access to Chinese interrogators to speak to the detainees. "If you connect the dots, it does not look good," he said. "The government knew it did something wrong, picked up the wrong people."
But the Pentagon denies the Uighurs were held to curry favor with China. "This assertion is categorically untrue," said Cmdr. J.D. Gordon, a Defense Department spokesman last month. "For years, we have been hard at work with the international community in resettlement options for the Uighurs at Guantanamo, as we do not repatriate detainees to countries which cannot provide credible assurances of humane treatment."
The State Department says that more than 90 countries refused to accept the Uighurs. "They want to blame the international community. They won't accept these poor Uighurs," Pinney said. "You've brought them here and you have labeled them terrorists. The worst of the worst. Cold-blooded killers."
That leaves resettlement in the United States as perhaps the most workable option for the Guantanamo Uighurs. About 2,000 Uighurs live in the U.S., and their status as enemies of the Chinese government makes them eligible for political asylum here.
Tuesday, it appeared, that option will be utilized. Although the government can, and probably will, appeal.
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