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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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Posted by: Reflect08 | Nov 20, 2008 2:13:32 PM

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