Civil Liberties

We'll Let You Go As Long As You Settle Somewhere Other Than Earth

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On Wednesday a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously overturned a federal judge's order telling the government to release 17 Uighur Muslims from China who have been held at Guantanamo Bay since 2002 and allow them to settle in the United States. The Pentagon no longer maintains that the men are "unlawful enemy combatants," but it says they cannot be sent back to China because they might be persecuted there, no other country is willing to accept them, and allowing them into the U.S. is too risky because they trained in Afghanistan to fight the Chinese government. In October, U.S. District Judge Richard Urbina said there was no justification for holding the Uighurs and the U.S. government had an obligation to admit them if there was no place else for them to go.

The appeals court said Urbina's order exceeded his authority. "Never in the history of habeas corpus," two members of the panel said, "has any court thought it had the power to order an alien held overseas brought into the sovereign territory of a nation and released into the general population." The third judge said habeas corpus review for such prisoners would have no teeth without that power, but she said Urbina did not adequately consider whether there was a justification for barring the Uighurs under immigration law. One of the detainees' lawyers said the appeals court's ruling means innocent people "can spend the rest of their lives in prison even though the U.S. knows it's a mistake."

The Obama administration can still decide on its own to let the Uighurs into the country, a move that might encourage other countries to accept Guantanamo detainees who have been cleared for release and help the president follow through on his commitment to close the prison. Last month I welcomed that decision but noted that Guantanamo is not so much a place as a state of mind, according to which the president has the unilateral, unreviewable authority to lock up enemies of the state and throw away the key. Yesterday I noted that the Obama administration is reserving the option of indefinite military detention for terrorism suspects, although it's not clear what criteria will be used to determine who receives that treatment.

The D.C. Circuit's decision is here (PDF).