In another late Friday court filing, the Obama administration urged the Supreme Court to reject the appeal of 17 unlawfully detained Chinese Muslims--the Uighurs, who were determined to be innocent back in the Bush administration. The Uighurs have requested a SCOTUS review of a Circuit Court decision overturning a lower court which ruled that the Uighurs be released in Washington, DC, where a community of Uighur immigrants is prepared to take them in.
The administration is arguing [pdf] that it is the role of the political branches of government--the executive and legislative--to determine who to let into the country. Ambinder discusses:
The question at hand is very important: do federal courts have the authority to order the executive branch to release detainees into the United States? The Uighers say yes -- no other country will take them, and they fear repression if they're returned to their native country. The U.S. government agrees, but it contends that "the Political branches" bear the burden of deciding whether to let them into the country because they are aliens, not citizens.
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.
This is playing against the backdrop of the cynical political game being played out in Congress over the release of Guantanamo prisoners, the fearmongering, and the growing reluctance of our allies to provide asylum to the prisoners when we won't take them ourselves.
In reaction to that news and to the growing political problem of dealing with the detainees, the Constitution Project and nine prominent conservatives released a statement calling on the administration to end the detention of the Uighurs and to recognize its responsibility in resettling detainess.
The statement [pdf], signed onto by Stephen E. Abraham, Mickey Edwards, Richard A. Epstein, Thomas B. Evans, Jr., David Keene, William H. Taft, IV, Don Wallace Jr., John W. Whitehead, and Lawrence B. Wilkerson, reads in part:
"The courts, the United States military, and the former administration under President Bush have long recognized that these men are not "enemy combatants," and do not pose a threat to the United States. After nearly seven years, there are no legal or moral grounds for holding these men one day longer. We call upon the U.S. government to end the unlawful detention of these men, release them into the United States, and recognize the United States' obligations to resettle some Guantanamo detainees in our country in order to encourage other nations to share in this responsibility."
The administration has renewed its efforts to find someplace that will take them, and has turned to Australia to take six of the men. Australia twice rejected Bush administration requests to take them.
The administration might have a solid legal basis for arguing that the courts don't have authority over immigration policy. But the continuing legal limbo of these men--who have been held since 2001 and were cleared for release in 2004--is unacceptable. Morally, the United States has both a responsibility and an obligation to allow some of these detainees to be resettled in our country. Our country's willingness to take them in could be the essential key to getting some goodwill from our allies on this issue, and to secure their cooperation in accepting those detainees who are going to be released by the time Guanatanamo closes next January.