A Choice Between Two Incompatible Necessary Rights

We have been detaining non-terrorists, not-enemy combatants, non-threats to the United States or our allies for seven years. The U.S. Supreme Court, next year, will decide which principle of law will prevail; meanwhile the captivity continues.

Background

A group of 17 Muslim Uighurs, Chinese nationals, had fled oppression in Xinjiang province of far-west China and went to refugee camps in the mountains of Afghanistan. They were, to the Chinese certainly, considered terrorists in their country in that they were seeking independence, or at least autonomy in their homeland. It is undisputed that the Chinese government treated these people harshly and, by our standards, inhumanely. In any event, they were turned over to the U.S. military, reportedly by Pakistani officials who allegedly received a bounty of $5,000 a person.

They have been imprisoned in Guantanamo for more than seven years, and it wasn't until last October that the Uighurs finally had their habeas corpus petitions ruled on by a federal judge. He found they were wrongfully imprisoned. The government has admitted that the Uighurs are not enemy combatants. Whatever beef they have is with China, which is why the men cannot be returned there, where they would be tortured or executed.

The opinion of the District of Columbia Court of Appeals explains that, under the criteria of both the Bush and Obama administrations, these men are not "enemy combatants"

"....an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces."

When the habeas corpus case was finally heard in the U. S. District Court, Judge Ricardo Urbina had a problem. If these men were being held without reason and ought to be released, where should they be sent? Of course, they could have been just let out the door at Guantanamo and live in Cuba, but that would be impractical. At the time, no other country wanted them (since that time a number of the Uighurs have been accepted in other countries but not all of them). The Court felt there was no alternative but to direct their settlement into the United States where housing and employment assistance would be available from a Uighur community that had guaranteed such assistance.

This seems fair. We made them stateless, dragged them to Guantanamo and robbed them of six years of their lives before bothering to give them due process. Releasing them is the least we can do.

On appeal to the Circuit Court, the en banc opinion affirmed the holding that the petitioners were being held without justification and agreed that

...releasing petitioners to their country of origin poses a problem. Petitioners fear that if they are returned to China they will face arrest, torture or execution. United States policy is not to transfer individuals to countries where they will be subject to mistreatment.

However, the appellate court reversed that part of the decision that directed the entry into the United States; that was beyond the Court's authority. Determination of whom may enter the country and under what conditions were solely the province of the Legislative and Executive branches of government; the judiciary had absolutely no say in the matter.

The case is to be heard by the United States Supreme Court next year. In the meanwhile, the remaining Uighurs continue to be held in confinement until or unless the United States can convince another country to accept men whom it, itself, will not allow in!

Conflicting principles

Sir Edward Coke was probably the most brilliant and influential jurist of the 16^th and 17^th centuries in England; his commentaries on the law and his judicial opinions are reflected in the common law in America. One of his foibles was the creation of Latin phrases to restate principles of law that he had believed evident. The theory was that if he wrote, "It has been an established rule for generations..." and then express his rule in Latin, it would carry more authority. In an age before published law reports and commentary, he was likely correct. One such phrase: Ubi jus ibi remedium, means, "Where there is a right, there is a remedy." When a legal wrong has been done, the courts should be able to order some kind of relief.

If a court cannot enforce the "right" then it is illusory. It has no meaning.

Thus the first principle holds that the Uighurs ought not be detained any longer and that the Courts must enforce that "right" if no one else is about to step up to the plate.

The other conflicting principle is well expressed by the Court of Appeals. From the very creation of the United States and repeatedly thereafter, it has been the responsibility of the Legislature and the Executive branches of the government to fashion and apply rules for immigration and entry into the United States. Indeed the right to control and regulate those who would enter the country has always been considered a sovereign right of nations and subject to the Executive and Legislative authorities; courts have consistently refused to intervene.

How will the Supreme Court resolve the dilemma?

Obviously any attempt to second guess the Court would be foolhardy, but there are clues.

First, Courts, and in particular the U.S. Supreme Court, tend to avoid controversies whenever possible, preferring to focus on the most limited issue before it. Second, the determination by the Court to delay hearing on the Uighurs' case until next year rather than address the underlying issues now is telling. Why the delay?

The Circuit Court noted that the appellants had not "formally" applied for entry into the United States nor had they completed the forms the bureaucracy requires for a claim of asylum. This seems to me to be a weak position upon which to treat the Uighurs so shabbily. The other "hint" is this comment:

Diplomatic efforts to locate an appropriate third country in which to resettle them are continuing.

Four of the Uighurs have been "resettled" in Bermuda, 12 others on the Pacific Island of Palau; the remaining detainee was rejected by Palau on the ground that he was mentally ill and they had no facilities for him.

It seems clear that the delay by the Supreme Court indicates a hope that the Court will be able to treat the case as moot - if another nation will accept the Uighurs. In the meantime, the United States is holding the remaining non-terrorists, without cause or justification.

And that just isn't right.