January 2, 2006
There's No Way Out of Here
". . . when you come in, you're in for good." That's a lyric that about covers what's happened to Abu Bakker Qassim and Adel Abdu Hakim, two detainees now in their fourth year at the Guantanamo Bay detention facility.
"So what, Ilyka?" Well, so they're not enemy combatants.
"Says who?" Well, we do: Our military does. Our government does. U.S. District Judge James Robertson does.
Judge Robertson also says there's nothing he can do about it.
Abu Bakker Qassim and Adel Abdu Hakim are Uighurs originally from western China; they were picked up by the U.S. in Afghanistan four years ago. They can't go "back home," for they will likely be tortured or killed there. They can't be allowed into the United States, or at least, no judge appears to have the authority to order it; it'd be like giving them free green cards. They can't be allowed to wander free around the Guantanamo facility, because that's a military installation, and obviously we don't allow foreign nationals to hang out at those. And no other country will grant them asylum, for fear of angering China.
They're stuck.
Occasionally people on the political right will get a little chest-thumpy about Guantanamo Bay and the rights, or lack thereof, of its detainees. "Screw 'em, the lousy terrorists," is about the attitude you'll see some places. This case, however, is a textbook example of the importance of habeas corpus.
It's a black mark on us every day that these men remain wrongfully imprisoned, and we ought to work on getting them freed with just as much speed and passion as we've brought to our other efforts in the war on terror.
I do not support removing the right of Guantanamo detainees to file habeas corpus petitions. That doesn't make me unpatriotic or weak on terror; that makes me a believer in protecting the innocent in the course of trying to punish the guilty. Unfortunately, Senator Lindsey Graham (R-S.C.) thinks it's more important to cut down on paperwork and reduce "frivolous" petitions:
An amendment sponsored by Sens. Lindsey O. Graham (R-S.C.), Carl M. Levin (D-Mich.) and Jon Kyl (R-Ariz.) eliminates detainees' ability to challenge the condition of their detentions through habeas corpus petitions. Graham, asserting that U.S. courts have become clogged by "frivolous" claims on behalf of nearly 300 detainees in Cuba, favored denying foreign terrorism suspects the same rights in federal court that are afforded to U.S. citizens.Instead, he proposed allowing the U.S. Court of Appeals for the District of Columbia Circuit to review the Combatant Status Review Tribunal decisions, in which detainees are ruled "enemy combatants" or "no longer enemy combatants."
Those who are considered enemy combatants can be held indefinitely. Detainees convicted by military commissions -- of which there have been none completed in the four years the Guantanamo Bay prison has operated -- are afforded federal court review.
Got that? Instead of being able to petition the courts, prisoners must now wait for the U.S. Court of Appeals to review the decisions made by the military commissions, who aren't making very speedy decisions, and in fact have yet to make even one.
It's not a position I'd like to find myself in. Would you?
(Via Right Side of the Rainbow, who has a link to the .PDF of Judge Robertson's decision, for you legal types.)
Posted by at January 2, 2006 5:41 AM | PROCURE FINE OLD WORLD ABSINTHE
What are two Chinese nationals doing in a war zone in Afghanistan? If we rule they are not a threat to the US, send them home or drop them off where we pickeed them up. Not our problem.
Francis is right, bad facts make bad law. Remember bleeding hearts causes blood loss to the brain, generally resulting in utterly erroneous conclusions.
Posted by: Roberta at January 2, 2006 8:22 AMsend them home or drop them off where we pickeed them up. Not our problem.
I'm not the one reaching "erroneous conclusions," but then, I've actually taken the time to read the decision. Fatiguing as such an activity might be for you, I suggest you do likewise:
It appears to be undisputed that the government cannot find, or has yet not found, another country that will accept the petitioners. Thus, the only way to comply with a release order would be to grant the petitioners entry into the United States. Although, as noted above, the immigration/alien exclusion cases are not strictly applicable, a strong and consistent current runs through them that respects and defers to the special province of the political branches, particularly the Executive, with regard to the admission or removal of aliens.
Just dropping them off and saying "not our problem" isn't an option. But don't let that stop you from playing the bleeding-heart card; I assure you that will always be easier than learning things.
Posted by: ilyka at January 2, 2006 8:54 AMWhy would the government of Afghanistan "torture and kill" them?
Posted by: Daniel Upton at January 2, 2006 9:53 AMThe proper response, given the courts' appropriate deference to the political branches here, would be for Congress to pass and the President to sign a private bill granting these two at least temporary conditional residency in the US. It's not common but nor is it hardly unheard-of.
Posted by: Dave J at January 2, 2006 11:04 AM
This one goes under the old maxim that "hard cases make bad law."
It would be unacceptable to fuzz the rules concerning war detainees, for practical and legal reasons both. However, these two unfortunates seem to deserve special treatment. If the facts are as stated, they don't belong in Camp X-Ray; indeed, they sound like perfect cases for a compassionate grant of permanent residence. But to concede that a federal court has the authority to override their status unilaterally, and outside the rules of review, would open the floodgates for unqualified certiorari challenges of war-detainee status now and forever.
There doesn't seem to be an acceptable solution under which everyone gets his just deserts and the security of the country is properly served. Well, we knew war has horrors that aren't confined to the battlefield.
Posted by: Francis W. Porretto at January 2, 2006 4:12 AM