Uighur Release is Welcome, but Leaves Fate of Remaining Detainees Uncertain

June 14, 2009

This week, four of the Uighurs previously detained at Guantánamo Bay were resettled in the British territory of Bermuda, and the President of Palau announced that he will allow the temporary resettlement in his country of at least some of the Uighurs remaining at Guantánamo.  This is undoubtedly good news, at least in the short term, for the Uighurs who will be released-but the news is more mixed when it comes to the ultimate fate of the remaining 200-plus Guantánamo detainees.

The release of the Uighurs, who are members of a Chinese ethnic minority, is long overdue.  It has been nearly six years since the U.S. military first determined that the Uighurs are not "enemy combatants."  Nonetheless, important questions remain with respect to the future of this particular group of detainees.  For one, we do not yet know whether Palau will accept all of the remaining Uighurs.  Nor do we know what restrictions will be placed on the Uighurs' freedom in their new home countries, or what will become of the Uighurs in Palau once their temporary status expires.  

Additionally, while the decision by Bermuda and Palau to accept the Uighurs is certainly generous, it would have been better-for both the Uighurs and for the U.S. plans to close Guantánamo-if the U.S. itself had accepted these detainees.  Until the U.S. begins accepting Guantánamo detainees who are not considered "enemy combatants," we cannot fairly expect other countries to follow Bermuda and Palau's example and volunteer.  The Uighurs were ideal candidates for resettlement in the U.S.  They were never "at war" with the United States and they pose no security threat to the country.  There are Uighur communities in the suburbs of Washington D.C. that can assume responsibility for the detainees and ensure their successful integration.  (From the Uighurs' perspective, it would be much easier resettle in communities that share their language and customs-communities that exist in the U.S. but not Bermuda or Palau.)  The failure of the U.S. to accept the Uighurs and thus trigger other countries to step forward is a major opportunity lost-one that may not present itself again for a long time, if Congress is successful in its efforts to prevent the transfer of any detainees to the U.S.  

Furthermore, it is unclear how the resttlement of the Uighurs will affect ongoing litigation on behalf of the Uighur detainees (the case of Kiyemba v. Obama).  Currently, there is a petition pending before the Supreme Court to review a D.C. Circuit opinion blocking a district court from ordering the release of the Uighurs into the U.S.  The Brennan Center filed an amicus brief arguing that the D.C. Circuit ruling should be overturned. The D.C. Circuit's decision sets a dangerous precedent for those who are unlawfully detained outside the United States: at Guantánamo Bay, Bagram Detention Center in Afghanistan, or elsewhere.  The district court had granted the habeas petition of the Uighur detainees on the ground that there is no lawful basis for their detention and ordered their release into the U.S. (the only remedy available).  The D.C. Circuit did not dispute that the detainees were being unlawfully held, but nonetheless concluded that no court has the authority to order their release.  As the Brennan Center argued in its amicus brief, the right for detainees held outside the United States to challenge their detention through habeas corpus petitions, as provided for in Boumediene v. Bush, is a hollow right if no remedy is available.   It is critical that this decision not be allowed to stand.

The problem of Guantánamo has become symbolized, in recent months, by the case of the Uighurs.  But the problem is much bigger than these 17 detainees.  While we welcome their imminent return to freedom, we should not forget that there is still much that our government and our courts need to do to bring the saga of Guantánamo to a successful and just conclusion.