Late Friday the Administration filed a brief (pdf) in opposition to granting the Uighurs housed at Guantánamo Bay a Supreme Court hearing challenging the government's refusal to release the seventeen men into the United States.
In 2008 a district court judge ordered the men, non-enemy combatants all released into the United States on the basis that their current detention is unlawful, that they could not reasonably be returned to their home country of China, and that no other country has been willing to take the unlawfully detained men.
The judges order was overturned by the Court of Appeals in February of this year. The crux of the argument cited by the appeals court is that it is not the place of the court to supercede the judgement of the legislature and executive to regulate entry into the sovereign territory of the United States. The Obama Administration Friday asked the Supreme Court to let the court of appeals decision stand.
Marc Ambinder describes the problem facing the Administration this way:
It's a dilly of a pickle in some ways: the government is forced to justify the conditions that the Uighers live in at Guantanamo -- they're in comfortable housing and can leave for any other country when they want -- but must, at the same time, acknowledge that the Guantanamo holding facility is not where the Uighers will end up after Gitmo closes next January (providing Congress appropriates the money.) That's the heart of the Uighers' case -- that if the U.S. government, which was responsible for their detention, cannot find a place for them to go, it must either hold them indefinitely -- which it cannot do -- or it must release them into the United States, where the Uighers will be protected from torture and persecution. Keeping them at Gimto until the government figures out what to do with them is tantamount to indefinite detention.
The Department of Justice argues, with some precedent, that there is no constitutional relief available to aliens demanding entry into the United States outside of the normal immigration laws enacted by Congress and enforced by the Administration.
The Administration is attempting through "high level negotiations" to find a country or countries willing to accept the Uighurs. These attempts to settle the Uighurs, men seized without any lawful basis and allegedly abused by their American captors on behalf of the Chinese government, have been complicated by the United States' refusal to settle any of the Uighurs on American soil.
Senator Lindsey Graham is one of those opposed to releasing any of the men in the United States:
Lindsey Graham, a South Carolina Republican senator, and Joseph Lieberman, an independent senator from Connecticut, also introduced legislation that would block the release of the Uighurs into the US.
"Former enemy combatants should not be released into the general population of the US," said Mr Graham. "Any decision to do this will put Americans at unnecessary risk."
Mr Graham told the FT there was "huge" support for the legislation. Asked whether any lawmakers were arguing on behalf of releasing the Uighurs in the US, he said: "The Uighur caucus is pretty small."
As long as the United States refuses to accept at least some of the men into the country, there is little incentive to other nations to do so, according to Human Rights Watch.
The Obama administration would like other governments to help resettle these men, but, understandably, few countries want to resettle detainees from Guantanamo so long as the United States is unwilling to admit any itself.
"The Uighurs are a subset of the Guantanamo detainees who cannot be returned to their home countries because there are credible fears they will be tortured there," said [senior counterterrorism counsel Jennifer] Daskal. "The Obama administration should jump-start a broader resettlement effort by acting quickly to resettle the Uighurs in the United States."
Ms Daskal is correct. The Obama Administration created its own deadline of January 2010 for resolving the case of the Uighurs, and it could help itself meet its obligation by working with Congress to settle at least some of the unlawfully detained Uighurs in America.
Instead the Administration continues to kick the can down the road in the hope that someone else will take these men off their hands with no expenditure of the political capital necessary to educate the American public that, contrary to the assertion of Sen Graham, these men were never "enemy combatants," a legal fig-leaf that even the Pentagon admits was inappropriately applied to the Uighurs.
We cannot expect other nations to fix what we broke. The power, and the responsibility, to end the on-going detention of the Chinese Uighurs begins with us. As long as both Congress and the Administration continue to treat these men's lives as a political football to be kicked around a playing field, we cannot say that we are accepting responsibility for the abuses of the last seven years.
We must be the Uighur caucus.