Editore"s Note
Tilting at Windmills

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May 30, 2009
By: Hilzoy

Shameful

From the Washington Post:

"The Obama administration, picking up the argument of its predecessor, is opposing the release of Chinese Muslim detainees at Guantanamo Bay into the United States.

In papers filed with the Supreme Court late Friday, the administration says a group of Uighurs (pronounced WEE'-gurz) are being lawfully held at the U.S. Navy base in Cuba even though they are not considered enemy combatants. (...)

The Uighurs' "continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States," Solicitor General Elena Kagan told the court.

The men are held apart from the other detainees, in the least restrictive conditions, Kagan said. "They are free to leave Guantanamo Bay to go to any country that is willing to accept them," she said."

The administration's brief is here (pdf). One note: I think it's not quite accurate to say that the administration is "opposing the release" of the Uighurs in this brief; it is arguing that it cannot be compelled to do so by court order. That said:

I have no idea whether or not the administration's argument is correct as a matter of law. Moreover, I don't care. Whatever the law says about whether it can be forced to admit the Uighurs, the administration has the right to admit them voluntarily. If it cannot find another country that is willing to take them, then it should.

We set up a system that gave people incentives to turn over people they claimed were foreign fighters, whether they were or not. We then dismantled all our normal procedures for separating combatants from non-combatants. It should not surprise anyone that we ended up detaining people who were innocent.

I have no problem with the government taking some reasonable period of time to try to identify another country that is willing to take detainees who cannot be returned to their own countries. But these detainees have been held for seven and a half years. That's not a reasonable amount of time to tie up loose ends; it's a tenth of a normal lifespan.

We screwed up. We should step up to the plate and do what's right. Seven and a half years is too long.

And one other thing: the administration says this about the Uighurs: "Petitioners would like the federal courts to order that they be brought to the United States, because they are unwilling to return to their home country." (p. 11) As Registan notes, this is false. The reason we cannot send them back to China is not that they are "unwilling" to go back; it's that we believe, with good reason, that they would be tortured or killed if they were repatriated. That means that it would be illegal for us to send them back.

It's also a bit disingenuous for the administration to argue that the Uighurs are free to leave. The Bush administration has previously argued that they cannot be set free in Guantanamo, for the perfectly good reason that Guantanamo is a military base, and we do not normally allow people free access to military bases.

Hilzoy 7:11 PM Permalink | Trackbacks | Comments (25)

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Comments

I appreciate whatever profile you (Hilzoy) give this issue. And your focus on humanity and decency, instead of simply political arguments.

Posted by: flubber on May 30, 2009 at 7:27 PM | PERMALINK

Obama is playing a long game, one that we mere mortals cannot yet discern. All will be revealed to us in the fullness of time if we simply trust in him and not criticize his actions.

Posted by: Obamapologist on May 30, 2009 at 7:55 PM | PERMALINK

With all the nonsense the Republicans have been spouting about only the worst of the worst being sent to Gitmo, and 1 in 7 going back to terrorism, would you want to be released in the US? Do you think the Uighurs have been told about the media frenzy here? This isn't the same country it was when they were first abducted. It's not hard to imagine the Limbaughs, Gingriches, Giulianis, etc. handing out the pitchforks just to score cheap political points with braindead teabaggers. And let's face it, it would be disasterous for them if the Uighurs were released and received as victims.

Posted by: Danp on May 30, 2009 at 7:56 PM | PERMALINK

Cuba is really missing a golden opportunity for good PR with much of the world on this one. . .

Posted by: zeitgeist on May 30, 2009 at 7:59 PM | PERMALINK

I think I said this before but I went to school with a girl from China, she was cute and small and friendly even when she had disagreements with American politics and government.... but she became amazing angry over the Uighers. She hated them all, ALL as terrorists.

So... would China be angry if we let them live in the US?

Posted by: MNPundit on May 30, 2009 at 8:21 PM | PERMALINK

Dear President Obama,

Indefinite detention away from friends and family is torture.

Just think, if 25 years ago, we had provided for the public education and a couple of meals a day for all those Afghan and Pakistan poor kids, they would not have joined the Taliban today. They would all be plumbers and doctors, electricians and dentists, etc.

Missed the boat on that one. Now we have to level their villages to protect them from the Taliban. Chickens coming home to roost.

Posted by: deejaayss on May 30, 2009 at 8:34 PM | PERMALINK

A quibble. Normally I find nothing objectionable in your posts Hilzoy (and I love to find reasons to object to just about everything) but I believe you are contradicting yourself with the phase "this is false". I don't see why these Uighurs should be at all anxious to jump out of the frying pan and into the fire. The fact that it would be both unethical and illegal to send them to China does not preclude the possibility that they don't want to go there. If they had an ounce of sense they'd hold out for being sent top somewhere where they wouldn't be either tortured or executed. Just saying.

Posted by: Peter G on May 30, 2009 at 9:26 PM | PERMALINK

Hilzoy - I basically agree with your points, but I think you are not going far enough. There is still this tone of "why don't those other countries take them" in your post.

We have held these people for 7 years. They are innocent. Now we OWN these cases. We have an obligation to offer them to come to the US, EVEN if another country now agrees to take them. Morally, not legally. Why is that so hard to say? Why do even normally sane people like yourself (or Matt Y. and Kevin Drum) think that somehow other countries should be pushed into accepting them and are partially to blame for the predicament. This is our problem alone. Stop talking about other countries in the context of the Uighurs. This is between us and them. Please.

Posted by: TS on May 30, 2009 at 9:28 PM | PERMALINK

"The Uighurs are to the Chinese what Al Quaeda is to America. Both were trained, equipped and funded to fight the Soviets in Afghanistan, and then went on to bite their former patrons. They are both jihadi groups."

Provide a source for this assertion. A legitimate source, mind you, to prove that you didn't pull it from Rush Limbaugh, Fox "News", or your ass.

Posted by: Shade Tail on May 30, 2009 at 9:41 PM | PERMALINK

So let me get this straight. After the GOP reduces the whole issue of Guantanamo down to the argument that Obama is going to release Guatanmo prisoners into American society, we should release the Uighars straight into American society. After all, they cannot be tried; they are probably not guilty of much; they cannot go back to China and nobody else wants them.

For the last few months, we have been arguing that releasing people into American society is NOT what was going to happen, now it is.

Do you think that the GOP did not see the question of Uighar release on the horizon when they started their campaign against closing Guantanamo?

Once again, we are in the position of criticizing our President for not walking into a political trap.

Releasing the Uighars now would sabotage all chances of closing Guantanamo anytime soon.

Posted by: Tom in Ma on May 30, 2009 at 9:42 PM | PERMALINK

Tom, if we start allowing rightwing hysteria to limit our options, we will soon find ourselves without any.

Posted by: gussie on May 30, 2009 at 10:04 PM | PERMALINK

fucking hell. Obama, this is not change I can believe in. This is bullshit.

Posted by: Ben on May 30, 2009 at 10:30 PM | PERMALINK

I nominate Tom in Ma as the next person who gets sacrificed so that Obama can avoid pissing off the Republicans.

Posted by: Disputo on May 30, 2009 at 10:51 PM | PERMALINK

I see that the mod has removed the asinine comment by the racist Jake, but since his post was quoted, and in case anyone is unclear on the concept, the Uighurs are an ethnic group, not a terrorist group, though is easy to see why the racist Jake doesn't distinguish between the two.

Posted by: Disputo on May 30, 2009 at 10:57 PM | PERMALINK

Tom:"For the last few months, we have been arguing that releasing people into American society is NOT what was going to happen, now it is."

Tom, who is "we"? And who is "people"? All of the detainees, or some of them? If anyone in the Obama administration suggested that NONE of the detainees should be released into society in the US, that was an incredibly stupid thing to say.

I understand that the Uighurs are an internal political problem in the US, and that is would be convenient if other countries resolved the problem for us. But we should be able to say what is morally right in this case, without constantly triangulating. Both bloggers and commenters.

Or, if you want to hear a pragmatic argument, it may make sense for the Obama administration to triangulate. And it makes sense for bloggers and the base to widen the base of that triangle in our direction, to give them more space to operate.

Posted by: TS on May 30, 2009 at 10:59 PM | PERMALINK

Oh, and btw, conservative anti-commie groups have been pushing for the Uighurs to be released for the last several yrs; someone as skilled at political ju jitsu as Obama is should be able to use that to inoculate himself from harm.

Posted by: Disputo on May 30, 2009 at 11:01 PM | PERMALINK

It's not the GOP that is preventing Obama from releasing the Uighurs. The Chinese have been telling anyone who will listen that granting asylum to people they consider terrorists will be deemed an unfriendly act. We now desperately need Chinese money to finance our budget deficits. Thus, the Uighurs continue to rot in Gitmo. It really isn't that hard to figure out, folks, just take off those rose colored glasses.

Posted by: Texas Dem on May 30, 2009 at 11:10 PM | PERMALINK

We now desperately need Chinese money to finance our budget deficits.

And the Chinese desperately need us to buy their goods. We're locked in a mutual dysfunctional relationship with the Chinese; they're not about cut off their left arm to spite our pinky finger.

Posted by: Disputo on May 30, 2009 at 11:37 PM | PERMALINK

Anyone know how long the Constitution can be subservient to (1) immigration law, (2) political procrastination, or (3) bureaucratic diddling? Because if we're not allowed to hold these people indefinitely, then they have to go somewhere, and I don't think "Uh, we can't figure out where to send them" is a sufficient legal defense to a successful habeas corpus lawsuit.

Or, if it *is*, then congratulations, the law doesn't protect you either.

Posted by: Chris on May 31, 2009 at 12:31 AM | PERMALINK

release them. release them now. we've disrupted their lives for no reason long enough. we can't make up for lost time but we can prevent this from getting worse. let them go. it's the right thing to do.

Posted by: mudwall jackson on May 31, 2009 at 2:16 AM | PERMALINK

So... would China be angry if we let them live in the US?

That's the reason they haven't been released yet -- China is kicking up a huge fuss over the idea that they be released to anyone but them so they can execute them. Germany had agreed to take them because they have a large Uigher community that will welcome them, but after the past couple of weeks of Republicans and idiot Democrats having the vapors over the very idea of TERRA-ISTS!!! in our SuperMax prisons, Germany is now refusing to take them, on the very sensible grounds that if the US thinks everyone at Gitmo is too dangerous to allow onto US soil at all, they don't want to put their own people at risk.

We especially can't piss off China right now because North Korea has been rattling its sabers, and China's pretty much the only thing keeping them in check. Think what will happen if North Korea decides to try and invade South Korea and China refuses to intervene.

So, basically, we had a chance to sneak past the diplomatic dilemma we're stuck in and get them settled in a neutral country where China can't reach them, and Congress on both sides of the aisle fucked it up with their scaremongering. Thanks a lot, morons.

Posted by: Mnemosyne on May 31, 2009 at 2:34 AM | PERMALINK

Australia is now being approached (again) to take these Uighurs. There is a certain Australian knee jerk attitude in supporting the US alliance that may acquiesce to the US demand but there is a huge majority against this. This is not about repudiating a longstanding alliance with the US. It is about requiring the US behave according to its own founding principles. The US captured these Uighurs illegally, held the for years illegally, perhaps treated them illegally and in the end declared them totally innocent in all respects. So why should the world take these men? The United States has an obligation moral and legal to take these men in, and the United States should. What is so difficult to understand? Do the right thing America. Or SHAME ON YOU.

Posted by: Lightflyer on May 31, 2009 at 6:27 AM | PERMALINK

Or, put it another way: you broke it, you own it. Don't shove it on to friends and allies. Its yours, own it!

Posted by: Lightlflyer on May 31, 2009 at 6:29 AM | PERMALINK

Think what will happen if North Korea decides to try and invade South Korea and China refuses to intervene.

Paleez. That will never happen (China refusing to intervene). Do you have any idea how interlinked the Chinese and SKor economies are? China and SKor are both effed by war on the peninsula; they have a shared interest in stability.

Posted by: Disputo on May 31, 2009 at 5:03 PM | PERMALINK

Thus far, it seems like every Bush policy Obama has defended has been shot down.

The courts didn't change that much and I just plain don't believe that Obama's legal team is so much less effective than that of Bush.

I find it at least plausible that Obama pursues these fights with a mind to establish court precedent. If he doesn't pursue these cases, a future Cheney-esque despot may restore these clear Constitutional affronts.

Obama may be defending these practices so he can deliberately throw the fight.

If you suspect elaborate subterfuge by the government design to benevolently impose freedom on our people, do we still call it a "tin foil hat conspiracy"?

Posted by: toowearyforoutrage on June 1, 2009 at 10:26 AM | PERMALINK




 

 

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