Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Coming to America
October 07, 2008 3:58 PM
Delivering a sharp rebuke to the Bush Administration, federal Judge Ricardo Urbina today ordered the government to immediately release into the United States 17 former suspected “enemy combatants” who have been imprisoned seven years at Guantanamo Bay, Cuba.
The ruling—allowing former terrorism suspects to move to the United States--is the first of its kind. Lawyers predicted it will have a broad sweep. Attorneys for about 60 other detainees who also are challenging their continued imprisonment at Guantanamo say they believe it will bolster their claims to bring those men to the United States.
The ACLU’s Jonathan Hafetz said the ruling was “a powerful blow to the lawless system in Guantanamo.”
In his ruling from the bench, Urbina rejected the administration’s arguments that he lacked authority to order the group, Chinese Muslims known as Uighurs (pronounced “WEE-gers”), brought into the United States. The Pentagon, Justice Department and State Department adamantly contended that federal judges cannot order detainees at Guantanamo released onto U.S. soil.
The administration could appeal today's ruling--setting the stage for a possible landmark Supreme Court battle.
"Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful," Urbina said, according to a report by the AP’s Hope Yen. Reporting from inside the courtroom, Yen said Urbina’s ruling “ brought cheers and applause from a standing-room only courtroom” filled with human rights activists and other members of the Uighur community.
Urbina ordered the detainees to appear Friday in his courtroom so he could question them individually. He scheduled another hearing for Oct. 16 for representatives of the Department of Homeland Security to address how the detainees will be transferred and monitored in the U.S.
It’s unclear when the men, known as Uighurs, will be released or where they will go. Their lawyers have suggested they could settle into a Uighur community in the D.C. area.
The men were captured in Afghanistan and Pakistan after Sept. 11th. They were designated enemy combatants because of alleged ties to an Islamic separatist movement with links to Al Qaeda.
They have been held nearly seven years in Guantanamo, but their legal status has put them in a no man’s land. The government no longer considers them enemy combatants, but it cannot send them back home to China, because they may be tortured there. No other country will take them.
“The Uighurs trained with al Qaeda to make bombs and engage in terrorism, but their objective was to attack China, not us,” said Morris Davis, the former chief prosecutor at Guantanamo who has become a critic of the Bush Administration. “So now, we’re looking at having trained terrorists who are probably a little miffed at us for locking them up for seven years running loose in the states.”
Davis told my colleague Dennis Powell that the situation in Guantanamo is akin to the “Pottery Barn Problem.” That was an analogy Colin Powell used to caution against war in Iraq: If you break it, you buy it.
“We scooped them up,” Davis said, “so now they’re our problem.”
My colleague Luis Martinez says a Defense Department official expects them to arrive at Andrews Airforce Base late Thursday or early Friday, when they will be turned over to U.S. Marshals and taken to federal court. After the hearing before Urbina, they no longer will be under DOJ control, this official said, but likely will be allowed to stay in Northern Virginia.
This official told Martinez that the men probably will remain with the local Uighur community until the hearing on the 16th, when the issue of Visas will be determined.
Urbina’s ruling stems from a recent decision by the D.C.-based federal appeals court, which ordered Huzaifa Parhat, one of the 17 Uighurs, released or granted a new hearing. The appeals court said Parhat had been wrongly classified as an enemy combatant.
There are about 255 detainees at Guantanamo. The Supreme Court ruled in June that they have a constitutional right to challenge their detention in federal court. Those cases are now in progress in Washington.
UPDATE: ABC’s Ariane de Vogue just spoke with George M. Clarke III, a lawyer for two of the Uighurs. Clarke was in court today, and described an emotional scene after Urbina read his order.
“The judge's tone was deliberate. It was clear that the court had spent time thinking about it,” Clarke said. “He gave his order for release and left the chambers for a break. After he left applause in the court room broke out.”
Clarke said his notes of the hearing reflect that after Urbina issued his order, the government asked for an immediate stay. He refused and, according to Clarke's notes, said: "All of this means more delay and delay seems to be the nature of the game in this case."
Clarke said he has not heard word that the Uighurs will be sent here. He also said he expects the Justice Department to ask an appeals court to block the order, which would keep the Uighers at Guantanamo while the case was on appeal.
Clarke said his clients have no interest in going back to China. His said his clients were picked up in Pakistan and that they "love the U.S." One has a cousin here.
“The US can't send them back to someplace where they would be tortured," Clarke said. "The U.S. picked them up, paid bounty hunters for them in Pakistan, and instead of leaving them in Pakistan, they brought them to Cuba. The U.S. caused this. They took people who did have a home and put them in Gitmo, and then they argued they wanted to leave them to rot there."
UPDATE 2: NOT SO FAST
The U.S. Department of Justice is filing an emergency motion for a stay pending appeal with the U.S. Court of Appeals for the D.C. Circuit to prevent the Uighurs from release here in the U.S. Here's the release from Justice Department Director of Public Affairs Brian Roehrkasse:
“Today, the U.S. District Court for the District of Columbia ordered that 17 Uighurs detained at Guantanamo Bay— individuals who have admitted to receiving weapons training at camps in Afghanistan— be released into the United States. Today’s ruling presents serious national security and separation of powers concerns and raises unprecedented legal issues.
“The government advised the court in its submissions that these Uighurs were captured near Tora Bora by the United States and its allies following military operations against al Qaeda and the Taliban, that the Uighurs were receiving weapons training in Taliban-controlled Afghanistan at the time of the Sept. 11, 2001 attacks, and that, although the United States no longer treats these Uighurs as ‘enemy combatants’ of the United States and has been seeking to transfer them out of Guantanamo Bay and to appropriate foreign countries willing to accept them, the government does not believe that it is appropriate to have these foreign nationals removed from government custody and released into the United States.
“Following today’s ruling, the government moved to stay the decision to enable the government to consider its appeal options and to consider how such a release might be effected. The court denied the motion, and ordered the government to bring the 17 Uighurs from Guantanamo Bay to the court in Washington, D.C., by Friday, October 10. The court also set a hearing for Thursday, October 16, to determine the conditions of release and ordered that an official of the Department of Homeland Security be present. During the time between the presentment of the Uighurs on October 10 and the hearing on October 16, the court ordered that the government have no supervision or oversight of the released individuals.
“In response to today’s ruling, we are filing an emergency motion for stay pending appeal tonight with the U.S. Court of Appeals for the D.C. Circuit.”
October 7, 2008 | Permalink | User Comments (21)
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“I saw no evidence of a radical streak, either overt or covert, when we were together at Harvard Law School,” said Bradford A. Berenson, who worked on the Harvard Law Review with Mr. Obama and who served as associate White House counsel under President Bush. Mr. Berenson, who is backing Mr. McCain, described his fellow student as “a pragmatic liberal” whose moderation frustrated others at the law review whose views were much farther to the left.
Posted by: Reason | Oct 7, 2008 4:19:23 PM
Another day - another joke in America .. just look at their last names (judge and ACLU head) and you'll understand why!!
Posted by: Cindy | Oct 7, 2008 4:28:28 PM
Why would Barack Obama and the DNC File a Motion to Delay Delivery of Obama’s Citizenship Documents?
Well, I’ll take a wild guess. Maybe he doesn’t have any that haven’t been Photoshopped.
It seems that Obama’s team assumed that this case would be dismissed by now. But the judge is taking his time; not sure what that means…
In the meantime, Berg’s original Request for Discovery, or “Production of Documents,” filed on Sept. 15, gave Obama until Oct. 15 to cough up citizenship documents, including a valid Birth Certificate.
Now, reasonable people — you know all those folks who called us conspiracy theorists — are starting to wonder why Obama doesn’t just hand over the damn documents. Berg has even stated for the record that he would drop the lawsuit if Obama will present certified evidence of his sole US citizenship and birth record.
How simple and quick it would be for most of us to produce official copies of basic records related to our existence. But apparently this is not the case for Obama.
Well, none of the writers for this blog are surprised.
Meanwhile, Berg filed his own motion today, as he seeks to amend his original complaint based on new information related to Obama’s Indonesian citizenship and “other pertinent facts,” his office reported to me.
Many people across the spectrum dismiss Philip Berg as the “9/11 nut.” Well, let them. I haven’t analyzed Berg’s professional history in detail. But I can tell you this, and I’ll stand by it: Whether this particular lawsuit survives at the trial court or proceeds to appeal — It has merits. And ultimately, one way or another, the issues will be heard and the outcome will not be favorable for Mr. Obama.
Stay tuned.
UPDATES:
Atlas Shrugs posted an interesting addendum to this story, in which she nails Factcheck.org for stealth-editing their COLB image. Incidentally, the TD Blog still gets hits from that bogus “Born in the USA” article by Factcheck, which I responded to immediately with this post.
ALSO, Berg updated his site Monday to express outrage at the Obama/DNC delay tactic, proclaiming that “It is believed Obama is an ‘illegal alien’.” Indeed it is, Mr. Berg, as WE believe that’s probably true too. Otherwise, why wouldn’t Obama produce the birth certificate, declaration of citizenship, and other essential identity documents? I’ve had to produce more for some jobs I’ve sought than this guy has offered as a presidential prospect.
Posted by: JED | Oct 7, 2008 4:37:33 PM
I love seeing these people on here just foam at the mouth every time something doesn't quite go their way. I also enjoy people who think typing in all caps is going to get their points across. Newsflash, just because they were in Guantanamo, doesn't mean that they're any danger to you.
Posted by: Sompaq Chowpthou | Oct 7, 2008 4:45:01 PM
My guess is not many...
Posted by: Jazz | Oct 7, 2008 5:05:19 PM
Here we go again with some Federal Judge making decisions about Prisoners of War. When is Congress going to step in and tell these wacko Judges and their liberal Attorneys the decisions on Prisoners of War are made by the Senate and Executive Branch as referenced in the US Constitution and not the Judicial Branch. Apparently these wacko Judges and their liberal Attorneys should not have licenses in their field to work if they fail to adhere to US Constitutional laws. The basic intent is not to clutter the Judicial Branch with War Time activities based on the publics opinion of a given war - plain and simple the typical US Citizen does NOT want these people released in the US. Is this part of George Soros's plan to change the face of America and have unwanted terrorists released on US Soil to create terrorisum here.
Posted by: Sammy | Oct 7, 2008 5:18:06 PM
Not many Jazz: Would not one be to many, like maybe a family member of your, GOD forbid. You people are like lambs going to the slaughter!
Posted by: bombem | Oct 7, 2008 5:54:31 PM
Um, Sammy, these are not lawful prisoners of war...the article states at least twice that the United States does not consider them enemy combatants. They are held because they can't be safely sent home. They should, perhaps, be sent to a third country, but the judge is not going to let it take another seven years for the Pentagon to get around to it. And rightly so. Also, notice that some people who were considered enemy combatants and imprisoned at Guantanamo have actually turned out to be falsely accused. To hear the military and Bush tell it, everyone there is a ruthless terrorist unworthy of a trial. That's our America--guilty until proven innocent, and even then you stay in jail anyway.
Posted by: Heliocracy | Oct 7, 2008 6:34:52 PM
Crawford Texas is a good place for them to settle down.
Posted by: mary | Oct 7, 2008 7:07:44 PM
Just like liberals let the terrorist go so they can kill are families. STUPID LIBERALS. When are you going to learn. What if it is your kid that gets killed in a terrorist attack? Oh thats right we can talk to them. NOW NOW you guys cant do this... Least we forget the Jimmy Carter years. He tried to negotiate with these people and that just got more Americans killed. I am almost assamed that I ever srved my country to defend the rights of you morons.You get what you deserve.
Posted by: Mike | Oct 7, 2008 8:35:55 PM
karin, you forget the mexican president cowboy boots, paid with tax maney
Posted by: ronaldo | Oct 7, 2008 8:42:32 PM
Sammy asks: "Would not one be too many, like maybe a family member of yours?"
Nobody thinks it would be good to release them and have them commit some kind of terrorist act. But this is a nation of laws. We can't just throw out the law and keep everyone in jail forever just because they MIGHT commit another crime. Our legal system isn't perfect, but it shouldn't be disregarded whenever we disagree with the outcome.
By Sammy's logic, shouldn't we outlaw automobiles, because isn't just one person killed on a highway too many, especially if it's your family member?
Posted by: Stutz | Oct 7, 2008 9:02:00 PM
Ummmm yeah I am peeved that things dont go my way when we are facing the prospect of trained terrorists living free in our communities. Yeah thats something that would upset me a little. I guess you liberals feel that taking a chance on a bunch of wholesome terrorists is worth the risk I however do not. They are not American citizens and do not qualify as having those rights. If they are not considered enemy combatants anymore then send them back to China. They chose their course in life and made killing innocent people whether it be in China or the U.S. their goal in life. If the Chinese government chooses to torture them or kill them so what. They apparently had the same goal to do to others.
Posted by: rob | Oct 7, 2008 10:38:55 PM
Like most Americans, I do not like the idea of terrorists running free in my neighborhood. How will this ruling affect other Gitmo detainees? Most of these terrorists locked up in Gitmo will not be released back into their original country for fear of torture (Iraq, Afghanistan, Saudi Arabia, Pakistan, etc). So where will we send all the Gitmo detainees that we do not have enough evidence to hold? I do not like the idea of these terrorists being released into the U.S. because no other country will take them. We are just asking for trouble. They might be accepted in San Franciso, but I don't think the rest of the country will be too overly joyed to have a trained terrorist living next door.
Posted by: Patriot | Oct 8, 2008 3:49:24 AM
Great! And about 7 years too late.
Posted by: Hank | Oct 8, 2008 4:26:45 AM
The comment by "Cindy" above regarding last names got to me. Would she limit all judgeships to people named "Smith"? Newsflash: They were immigrants too. In fact being anti-immigrant is the ultimate unAmerican sentiment.
Posted by: Scranton | Oct 8, 2008 5:55:47 AM
Some of you need to read up on the existing case law in re: Rights of foreign detainees on American soil. You see, Bush didn't- if he had, he would have known NOT to bring them to American soil to be detained. If he left them in a prison overseas, they would not be afforded the rights they are getting now. Simple twist of fate, brought about by a bumbling idiot.
Posted by: Ferguson | Oct 8, 2008 6:41:11 AM
Judge - King George ain't gonna listen to you. He ain't been listening to the American people the last 8 years. He's in his own neocon world
Posted by: Bob | Oct 8, 2008 8:17:11 AM
So, let me get this right, a person who applies the the Constitution is now considered a liberal? Wow. And I thought people who strictly applied the constitution were conservatives. Funny how it all depends on what issue is being discussed. I'm not really sure if these people really do have any rights by our Constitution, but I do know that if US citizens were being held indefinitely & not charged with anything people would be all over our state department to do something.
Posted by: Sharon | Oct 8, 2008 10:35:17 AM
a judge that respects the constitution??? what in the world? neocons must be foaming at the mouths puttin on their white hoods and gettin ready to attack! there is no bigger terrorist than a neocon.
Posted by: Sherry Cooper | Oct 8, 2008 11:35:01 PM
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