This is just a follow-up to an item in the these pages on Christmas Day, 2005, here, a discussion of an Associated Press item two days before Christmas about the Chinese Muslims "in limbo" at Guantánamo.
Limbo? That would be this -
They were just out of luck, even if it was Christmas.
Washington, Friday, December 23, 2005 - Two Chinese Muslims can be held indefinitely in the U.S. military prison at Guantanamo Bay, Cuba, even though their confinement is unlawful, a federal judge ruled Thursday.
Abu Bakker Qassim and A'Del Abdu Al-Hakim, who were captured in Pakistan in 2001, had asked to be released after the government determined nine months ago that they were not "enemy combatants."
U.S. District Judge James Robertson, who has criticized the government for holding the two ethnic Uighurs, said their "indefinite imprisonment at Guantanamo Bay is unlawful."
At the same time, he said, the federal courts have "no relief to offer" the two men.
At the time there were others commenting, as in this item from "Hilzoy" noting that over four years ago these two were captured by bounty hunters and turned over to us for cash and finally, in early 2005, a military tribunal found that they were not enemy combatants after all. Someone just wanted some money and these two guys were sold to us as really, really bad guys. We paid, but we were had. It happens to us all. We buy something as advertised and when we get it home find out it doesn't work or isn't what they said it was.
The December 2005 count finding is here (PDF format), saying holding these two was clearly illegal - "The detention of these petitioners has by now become indefinite. This indefinite imprisonment at Guantanamo Bay is unlawful."
And then the finding is that, in this case, the courts just cannot do anything about this, even if it is illegal -
It seems no one thought that far ahead, or more precisely, who would "hate America" so much to think we needed a mechanism to manage any mistakes we made? We don't make mistakes. To propose that we might, and suggest procedures to fix them if the occur, is to give "aid and comfort" to the enemy.
In Rasul v. Bush, the Supreme Court confirmed the jurisdiction of the federal courts "to determine the legality of the Executive's potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." 542 U.S. at 485. It did not decide what relief might be available to Guantanamo detainees by way of habeas corpus, nor, obviously, did it decide what relief might be available to detainees who have been declared "no longer enemy combatants." Now facing that question, I find that a federal court has no relief to offer.
Hilzoy at the time suggested the judge should have ordered that we send them to Peoria or something -
But that won't work. They're Chinese nationals who received military training in Afghanistan under the Taliban, and China wants them back. They were, after all, in Afghanistan to learn all sorts of ways to fight to overthrow the Chinese government, and we're working on better relations with them - President Bush and Chinese President Hu Jintao met in Washington on Thursday, April 20, 2006. Don't tick off the Chinese. That would be the end of Wal-Mart, and they buy all those five and ten year Federal Notes that keep our economy afloat - you just don't tick off the folks holding the IOU's. And anyway, requiring their release into the United States, as the judge notes, "would have national security and diplomatic implications beyond the competence or the authority of this Court."
He cannot just order the government to open the gates of the camp at Guantanamo and let Qassim and al-Hakim walk free: they'd be walking out onto a military base, and judges do not have the power to order that someone be admitted to a military installation. No other country is willing to take them. The obvious solution is to release them into the United States.
The same week, Mark Kleiman, the public policy professor out here at UCLA, said the president ought to do something -
But the story faded away. Too much else happened to distract those unhappy with the president, and you have to wonder whether there's an administration strategy here - do so many outrageous things, like claiming the president has the authority to ignore any law he decides he should if you think about what the constitution really says, and no one will be able to focus on any one single "outrage" for more than a day or two. You just overwhelm your opponents be giving them too many good targets. They get all confused. It works.
Of course, the lack of power in the court to order a remedy for the Uigurs' wrongs shouldn't matter. When court of competent jurisdiction finds that an act of the executive branch is illegal, the President, having taken an oath to "faithfully execute" an office whose chief duty is to "take care that the laws be faithfully executed," is oath-bound to order that the illegal activity cease. His failure to do so is grounds for impeachment.
But we have a President whose word isn't worth the spit behind it, and a Congressional majority blinded by partisanship. So the illegal (and inhumane) action of holding innocent non-combatants prisoner will continue, forever or until we elect a better President, whichever comes first.
But this one issue was just resolved. The answer was Albania. Isn't it always?
Note this from Reuters -
Something is up when our government is publicly saying nice things about Albania, which used to be one of the two remaining hard-line old-style "Stalinist utopias" left in this world, Cuba being the other - although things in Albania have changed quite a bit as they really would like to join the European Union.
WASHINGTON, May 5 - The United States said on Friday it had flown five Chinese Muslim men who had been held at the Guantanamo Bay prison to resettle in Albania, declining to send them back to China because they might face persecution.
The State Department said Albania accepted the five ethnic Uighurs - including two whose quest for freedom went all the way to the U.S. Supreme Court - for resettlement as refugees.
The Pentagon said 17 other Chinese Uighurs remained at the prison for foreign terrorism suspects at Guantanamo Bay, Cuba, because, unlike the five sent to Albania, they were still deemed "enemy combatants."
... State Department spokesman Sean McCormack said Albania's resettlement of the men was an important humanitarian gesture, and expressed U.S. appreciation.
And Reuters does mention the "back story."
This was not exactly humanitarian - on April 17th the Supreme Court had "declined to consider" whether a federal judge actually could just free these two, as their detention was flat-out illegal, but the issue was far from over -
Well, if Albania has any need to suck up to China, they could jail these guys and torture them - make the eat the local cuisine (think stewed goat and garlic) and listen to Albania folk music (excruciating). But we asked them not to do that, as the Pentagon spokesman said - "The United States has done the utmost to ensure that the Uighurs will be treated humanely upon release. Our key objective has been to resettle the Uighurs in an environment that will permit them to rebuild their lives. Albania will provide this opportunity."
Barbara Olshansky, a lawyer for the New York-based Center for Constitutional Rights representing the two men, said their case was due to be heard again in court on Monday. Olshansky said the U.S. government's decision to send them to Albania was made "to avoid having to answer in court for keeping innocent men in jail."
"We had no idea they were going to Albania. We didn't have any time to get anything on the ground to assist them with resettlement or to find out about whether they are trying to send them into some kind of detention," Olshansky said.
Everyone should have a second chance in Albania.
The Chinese are pissed, and their foreign ministry on April 20 said the United States should "repatriate Chinese-nationality terror suspects" as quickly as it can be arranged - and a Pentagon spokesman shot back - "The United States has made it clear that it does not expel, return or extradite individuals to other countries where it believes that it is more likely than not that they will be tortured or subject to persecution."
There's no small irony in what the Pentagon spokesman said. The same day we sent the two Chinese "mistakes" off to the good life in Albania we were getting hammered in UN hearings about torture and rendition (discussed here - we blustered and denied, and were met with known facts and logic, and what could be called derision).
In any event, it would be wise to remember the core issue, and what's happening.
Hilzoy says this -
Yep, the administration dodged a bullet. Thank you, Albania, all is forgiven.
Arguments in the Uighurs' appeal were scheduled to be heard on Monday morning. (I was going to go to DC to hear them.) I wish I could think it was just a coincidence that after over a year of searching, the administration found a country willing to take the Uighurs today. But I can't. This administration has built up quite a track record of freeing people (or, in Jose Padilla's case, bringing unrelated charges) just in time to render their appeals moot, thereby preventing the courts from finding their conduct illegal or unconstitutional.
The first amendment attorney Glenn Greenwald says this -
How does that thing about trail lawyers go - if you can't argue the facts, argue the law? And if you can't do that, bamboozle the jury with emotional appeals and jingoistic patriotism - but then that Moussaoui fellow didn't get the death penalty, did he? And when, as in this case, you face a panel of judges and not twelve untrained, rube jurors, and you have exhausted your options - and the president himself is going to lose the one key gonzo power that makes him very, very happy - off course you send the plaintiffs to Albania. The problem goes away. Or it goes away until the next case, and you hope Albania will be again the land of opportunity - where folks can rebuild their lives.
The administration has repeatedly claimed that it has ample legal justification for all sorts of extremist measures - from indefinite detention of American citizens in military prisons without a trial, to its use of torture and rendition policies, to its eavesdropping on American citizens without warrants - but it then invokes every possible maneuver to prevent judicial adjudication of the constitutionality and legality of its conduct.
The two most transparent and truly outrageous instances of these evasive maneuvers, as Hilzoy points out, were in the cases of Yaser Hamdi and Jose Padilla - two American citizens whom the administration abducted (in Padilla's case, on U.S. soil) and threw into a military prison without bringing any charges or even allowing them access to a lawyer or any contact with the outside world. The administration held them there for years, claiming - based solely on George Bush's secret decree - that they were such dangerous terrorists that they had lost the constitutional right not to be imprisoned by the U.S. Government without a trial.
But when the U.S. Supreme Court ruled that Hamdi had a right to challenge Bush's decree and that the administration therefore had to prove the validity of its factual allegations against him, the administration simply released Hamdi from its custody altogether. And in Padilla's case, the administration - one week before its brief was due to the Supreme Court, which was to rule on the legality of Padilla's 3 1/2 year lawless incarceration - suddenly and finally brought criminal charges against him, and then told the Supreme Court that there was no longer any need to rule on Padilla's claims that the administration had violated his constitutional rights, thus (yet again) avoiding a judicial determination of the legality of its conduct.
And now, they have done the same thing in the case of the Uighur detainees.
... Of all the abuses and excesses engaged in by the administration, the one that I am endlessly amazed can prompt defenses - even from the most zomibified Bush followers - is the administration's claim to have the power to incarcerate - indefinitely - U.S. citizens without any charges. Even the administration knows that much of their conduct is indefensible, which is why they abandon their efforts when they are forced to defend the legality of their behavior.
The whole thing stinks, of course, but this may be the start of a new tourist campaign - "Come to Albania, the land of fresh starts." Heck, they could even build a fancy statue at the port of Vlorë with some words at the base about giving Albania those huddled masses yearning to be free. The French gave us one. Maybe they'd like to build another.