(Washington, DC) - A federal appeals court ruling that US courts lack authority to order the release of a group of Uighur detainees into the United States is a major setback to the prohibition against arbitrary detention, Human Rights Watch said today.
The 17 Chinese Uighurs, all of whom are in military detention at Guantanamo Bay, were cleared of the "enemy combatant" designation, but the United States has been unable to resettle them elsewhere. In October 2008, a US federal court ordered that the men be released into the United States.
Today's appellate court decision, while acknowledging that the men are wrongfully detained, holds that only the executive has the power to order their release into the United States.
"The Obama administration should act immediately to bring these men to the United States," said Jennifer Daskal, senior counterterrorism counsel at Human Rights Watch. "The Uighur community in the US has promised to provide housing, language and job training, and any other support they may need."
The US court ruling comes on the same day as a Swedish court ruling in favor of the asylum claim of another Uighur who was held at Guantanamo until early 2006.
Most of the 17 Uighurs who remain at Guantanamo were turned over from Pakistan to the United States for bounties in late 2001. The US government cleared nearly all of them for release in 2004, but they were not returned to China due to credible fears that they would be tortured upon return. For several years, the US government has tried to convince other countries to resettle the Uighurs. Albania took in five in 2006, but no other country has offered to take in the remaining 17, in part because the United States has failed to resettle any detainees itself.
In June 2008, a US federal appeals court ruled that one of the detained Uighurs, Hazaifa Parhat, had been improperly classified as an "enemy combatant." It ordered the government to either reassess his status, release him, or transfer him out of Guantanamo. In response, the Bush administration conceded that Parhat - as well as the other 16 Uighur detainees - were "no longer enemy combatants," but maintained that it could continue to hold them at Guantanamo unless and until another country was willing to accept them.
The Uighurs challenged this claim, arguing that if they were not enemy combatants, then the United States had no basis for continuing to detain them at Guantanamo. In October 2008, a US federal court ordered that the 17 Uighurs be released into the United States because the government had been unable to resettle them elsewhere. Members of the Uighur community in the US and refugee resettlement groups promised to provide the men with housing and language and job training.
In today's decision, Kiyemba v. Bush, the Court of Appeals for the DC Circuit nullified the release order and concluded that only the executive - and not the courts - has the authority to admit noncitizens onto US soil. Under this reasoning, detainees who win their suits for habeas corpus and have been found to be wrongfully detained must stay in Guantanamo unless the Obama administration negotiates their transfer elsewhere or decides - on its own - to release the men into the United States.
"What's the point of adjudicating these cases, if the federal courts have no power to order the men's release?" said Daskal. "Even the Bush administration conceded that the Uighurs were wrongly held as ‘enemy combatants,' yet they remain locked up."
The Uighurs - as well as approximately 40 other detainees who cannot be returned to their home countries due to fears of torture or persecution - pose an ongoing hurdle to Obama's stated goal of closing Guantanamo by January 2010. 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 Daskal. "The Obama administration should jump-start a broader resettlement effort by acting quickly to resettle the Uighurs in the United States."
Human Rights Watch said the Swedish court decision is a positive development. Adel Hakim, a Uighur former detainee, was released from Guantanamo in 2006, and then joined his sister and her family in Sweden in December 2007. He applied for asylum in Sweden at that time, an application that was supported by a coalition of 10 nongovernmental organizations (NGOs), including Human Rights Watch.
Hakim has lived in Sweden peacefully, and benefitted from strong community support. In January 2009, the town council of Sundyberg, the suburb of Stockholm where he lives, issued a proclamation calling on the government to grant Hakim refuge in Sweden. Hakim's wife and two children remain in China.
Although the Swedish Migration Board denied Hakim's initial asylum application in June 2008, the Swedish Migration Court of Stockholm granted his appeal in the opinion issued on February 18. The court ruled that Hakim did not choose to be resettled to Albania, that he had strong family ties to Sweden, and that after the years of abuse he suffered at Guantanamo Bay, he was exceptionally deserving of humanitarian protection in Sweden.
"The Swedish authorities have acknowledged Adel Hakim's suffering, granted him safe haven, and provided him the opportunity to rebuild his life," said Daskal. "The Obama administration should now do the same for the 17 Uighurs still imprisoned at Guantanamo Bay."