Thursday, October 16, 2008

“Unchartered Territory”: A Remedy of Release into the U.S. for GITMO Detainees

On October 7, 2008, District Judge Ricardo M. Urbina issued an oral ruling calling for the release of 17 Guantánamo Bay detainees. The 17 men are Uighurs (Turkic Muslims) who said that at the time of their capture they were in Afghanistan seeking refuge from oppression in China. Although a Combatant Status Review Tribunal had ruled that the men were “enemy combatants”, the D.C. Circuit concluded that the government’s information that formed the basis for its conclusion was unreliable. The government admits that these individuals are “no longer enemy combatants” – implying that they were “enemy combatants” at some time – and urges the court to grant the Executive broad leeway in detaining these individuals indefinitely.

The Supreme Court recently held in Boumediene v. Bush that Guantánamo Bay detainees have habeas corpus rights, but left unclear what remedies are available to these detainees. The difficulties of the Uighurs case stem from the government’s inability to release the 17 individuals outside of the United States. As the government’s attorney stated, “there is no willing country and their own home country is one that U.S. policy prevents us from returning them to . . . forcibly because of humanitarian concerns.” The government presented the familiar argument that although the detainees have habeas corpus rights, there is no remedy for a violation of these rights. (The Bush administration raised this argument when it concluded that even if the Geneva Conventions applied to “enemy combatants” in the “war on terror,” the federal courts could not enforce the Conventions or provide a remedy.)

The government continues to argue its right to detain individuals based on their presumed guilt: “For the Court now to say that such individuals, individuals who have received paramilitary training on AK-47, Kalashnikov assault rifles, to be released into the United States because their original basis for detention is one the Government is no longer contesting would fundamentally alter and frankly chill the effective waging of war by the Executive.” This disingenuous argument ignores that the D.C. Circuit ruled that the government lacked sufficient evidence to conclude that these individuals were “enemy combatants.” In addition, the government relies heavily on principles akin to the political question doctrine, arguing that foreign policy issues are committed to the Executive branch and that the government must speak with one voice.

Although recognizing that “[n]ormally . . . the Court would have no reason to insinuate itself into a field normally dominated by the political branches,” Judge Urbina recognized that “[t]his is a problem that the Government’s making.” For almost seven years these individuals have been held in detention, and the government has not shown that they are “enemy combatants.” Judge Urbina applied a new test for determining the constitutionality of continued detention and concluded that (1) the Uighurs detention was effectively indefinite, (2) it is reasonably certain that the Uighurs will not return to the battlefield to fight against the United States, and (3) the government has not provided an alternative legal justification for their continued detention. Judge Urbina ordered the Uighurs immediate release into the United States.

The government unsuccessfully sought a stay in the District Court pending appeal of the court’s ruling. The government threatened that without a stay the Department of Homeland Security could detain the Uighurs upon their entry into the United States. Judge Urbina responded harshly that a threat “that [the Uighurs] may be descended upon by I.C.E. officials, arrested and taken into custody, that’s not how the three branches of government work together. That is not how things work.” In a one-page order, the D.C. Circuit granted the government's request for a stay on October 8th and set a deadline of October 16th for additional filings.  It is uncertain when the D.C. Circuit will decide the issue.

Judge Urbina's ruling is not without problems.  It potentially pits the Judiciary against the Executive generally and the Department of Homeland Security specifically.  In addition, the supervision and management of the conditioned release of 17 individuals may present difficulties that the court is ill-equipped to handle.  And although the D.C. Circuit has said that the government cannot support its contention that these men are "enemy combatants," they may nonetheless present security concerns.  Is it fair and desirable to allow individuals into the country that we would not otherwise if it were not for the government-created situation at Guantánamo?

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