Friday, October 10, 2008

No Way Out

When Innocence Is No Defense.

If we can just pry our eyes away from the disaster that is the US economy, I'd like to bring your attention back to the equally disastrous US 'justice' system. The story began with some good news, as reported on Tuesday by the BBC:
Anger over Guantanamo Bay ruling

The White House has reacted angrily after a judge ordered that 17 Chinese Muslims held at Guantanamo Bay should be released into the United States. District Judge Ricardo Urbina said the US could not hold the 17 as they were no longer considered enemy combatants. The Uighurs were cleared for release in 2004 but the US says they may face persecution if returned to China.

The White House said the ruling could set a precedent that would allow "sworn enemies" to seek US entry. The government says the 17 also pose a security risk if released into the US. Lawyers for the Bush administration have argued that federal judges do not have authority to order the release into the US of Guantanamo detainees.

Analysts say the ruling is a rebuke for the US government and could set the stage for the release of dozens more detained at the military jail in Cuba.
They have been held at Guantanamo for nearly seven years. The judge said there was no evidence that they were "enemy combatants" or a security risk.

"Because the constitution prohibits indefinite detentions without cause, the continued detention is unlawful," he said.
So the good news was that finally these 17 detainees - who in 2004 were found NOT to be enemies of the United States, who had NEVER been charged with any crime - were ordered released from their Kafkaesque imprisonment at the infamous Guantanamo Bay prison facility, aka America's Gulag. Never mind the outrageous fact that these people had been captured and detained without cause to begin with in 2001, never mind that they had been illegally held for nearly seven years. They were ordered to be released, and that was good news not just in itself, but because it demonstrated that the Constitution still held sway in America, and the rule of law had some force.

I mean really, any legal system that would tolerate someone being confined for seven years for no reason whatsoever is not worthy of the name. Any judge who would countenance such a thing is not fit to administer a traffic court. Which is why anyone with a conscience should have been outraged to the max to read the follow-up story on Wednesday, reported by the BBC and Reuters.
WASHINGTON (Reuters) - A federal appeals court on Wednesday temporarily blocked the release of 17 Chinese Muslims held at the U.S. military prison at Guantanamo Bay in Cuba.

The appeals court granted the Bush administration's emergency request for a stay of a federal judge's order that the members of the Uighur ethnic group be released into the United States at the end of this week.
The three-judge panel said it granted the stay only to give the appeals court more time to consider the dispute. The court ordered that briefs be filed by both sides on various dates through October 16.
Lawyers for the detainees opposed the request and said granting the stay would prolong the imprisonment of the Uighurs "by months and perhaps years." They said, "The government has delayed long enough."
There are two elements of this case that merit further examination. The first is the problem, "if we release these people, where do they go?" And that problem arises from the circumstances of their capture. The Bush administration has maintained that if they cannot be returned home and no other country will take them, they should stay at Guantanamo. (BBC article)
The 17 Uighurs had been living in a camp in Afghanistan during the US-led military campaign that began in October 2001. They fled into the mountains and were held by Pakistani authorities who handed them over to the US. Beijing has demanded that all Uighurs held at Guantanamo be repatriated to China. Many Muslim Uighurs from Xinjiang in western China want greater autonomy for the region and some want independence. Beijing has waged a campaign against what it calls their violent separatist activities.
These people are from China, and were not in Afghanistan or Pakistan legally. So they can't be returned there, and they can't go back to China because they would probably be executed for their 'violent separatist activities.' The Bush administration refuses to recognize their responsibility for the Uighurs' current circumstances and continues to maintain, in the absence of any evidence whatsoever, that they would be a security risk if released on US territory. (There is apparently a small Uighur community in the US willing to take them in.)

The second element that should be examined concerns the merits of the administration's argument, "that federal judges do not have authority to order the release into the US of Guantanamo detainees." WTF!?! If federal judges don't have the authority to determine the legality of actions taken by the military the country can only be described as being under martial law. There is some indication here that the Bush White House considers the courts to be intruding on his 'unitary executive' powers as the Commander in Chief During Times of War. The problem is, the constitution makes it plain that only Congress has the authority to declare war, which it has not done. Even if it had, there is ample precedent from prior wars that the courts do indeed have authority over the president when the latter's actions are unconstitutional, as they clearly are here. So if there is a Separation of Powers issue here, the intrusion is purely on Bush's behalf.

There is another related story that makes this not only infuriating but terrifying.
From Raw Story:
The US military was using the same procedures employed at the controversial Guantanamo Bay prison at other facilities inside the United States where US citizens and legal residents were detained, according to documents released Wednesday.

At least one Navy officer was concerned that a detainee was being slowly driven insane by the policies, which prohibited detainees from having items such as shoes or socks, according to 91 pages of e-mails between officers at military brigs in Virginia and South Carolina released Wednesday by the American Civil Liberties Union.

"These documents are the first clear confirmation of what we've suspected all along, that the brig was run as a prison beyond the law. There was an effort to create a Gitmo inside the United States," Jonathan Hafetz of the ACLU's National Security Project in New York told the Associated Press, using the slang word for the U.S. naval facility in Cuba.
“Guantánamo was designed as a law-free zone, a place where the government could do whatever it wanted without having to worry about whether it was legal,” said Jonathan Freiman, an attorney with the Lowenstein Clinic at Yale. “It didn’t take long for that sort of lawlessness to be brought home to our own country. Who knows how much further America would have gone if the Supreme Court hadn’t stepped in to stop incommunicado detentions in 2004?”
Ask not for whom the cell door clanks. It could very well clank for you.
UPDATE:Glenn Greenwald discussed the Uighur case with Jonathan Hafetz of the ACLU HERE.

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