Refuse/Refuge

This dispatch from Le Monde will sober anyone hoping that the news of France's willingness to take in a Guantánamo detainee opened the way for global resettlement of inmates who cannot go home again:

According to the Paris paper's special correspondent in Luxembourg, French President Nicolas Sarkozy "did announce that 'France was ready to accept an ex-detainee from Guantánamo,'" but with the intention of "'putting him in prison.'" That kind of "acceptance" would mirror the fate of the 6 ex-detainees who stood trial in France after their release from Guantánamo in 2004 and 2005.

Still more sobering is the reporter's observation that only 4 other countries besides France -- Britain, Italy, Portugal, and Spain -- have shown any such inclination. "For the most part," he wrote, "the ministers of interior and justice from the 27 European Union countries meeting in Luxembourg showed reticence to accept ex-detainees."

No doubt complicating diplomatic efforts at resettlement is the United States' unwillingness so far to take in any detainees itself. Last October, as we posted, the U.S. District Court ordered the release into the United States of 17 Uighur detainees, Chinese Muslims whom the government admits are not enemy combatants but who are likely to be persecuted if returned to China. But the Court of Appeals for the District of Columbia Circuit overturned that decision in February, and so yesterday the matter found its way to the U.S. Supreme Court. The petition for certiorari in Kiyemba v. Obama raises the critical issue, as SCOTUSblog reporter Lyle Denniston's superb analysis points out, of whether it is "unconstitutional to continue to hold in some form of custody an individual who has been found not to be dangerous and who has not been charged with any crime." The answer to that question would affect not only the Uighurs, but potentially many more of the 241 persons remaining at Gitmo. (Indeed, if last week's opinion extending Boumediene to 3 Bagram detainees survives appellate review, its scope could be even greater.)

One hopes that the new administration will not wait for the Court to act, but rather will decide on its own to accept the Uighurs, as Attorney General Eric Holder hinted the United States might do. As a policy matter, this could make other detainees more welcome in more other countries, as IntLawGrrl Beth Van Schaack posted. As a legal matter, it would comport with our traditions, as I've written in a New York Times Room for Debate exchange:

These men cannot expect safety back home in China. No other country has welcomed them. It is time for the United States to do just that – to grant the Uighurs asylum within U.S. borders. We should learn that this result is a foreseeable consequence of denying such persons their rights under the law.

U.S. judge releases Gitmo detainees ...

... into the United States.
It's the 1st time ever for such a ruling. It concerns the 17 Guantánamo detainees who are Uighurs. The United States has conceded that they are not "enemy combatants"; even so, as we posted a year and a half ago, they cannot be returned to their home in northwest China because of the likelihood that they'll be persecuted there. (Human rights groups charge that China has conducted "a 'crushing campaign of religious repression' against this Muslim people.) (map credit)
Here's a taste of the reasoning that led the Honorable Ricardo M. Urbina (below) of the U.S. District Court for the District of Columbia to his decision, which the U.S. government appealed within hours:

At a hearing packed with Uighurs who live in the Washington area, Urbina rejected government arguments that he had no authority to order the men's release. He said he had such authority because the men were being held indefinitely and it was the only remedy available. ...
Urbina said in court that he ordered the release 'because the Constitution prohibits indefinite detention without cause.' He added, 'The separation of powers do not trump' the prohibition against holding people indefinitely without trial.

More details here, here, and here.

GTMOre news

With so much happening, where to begin a counterterrorism update? Let's start with these 5 items relating to executive detention, then move in due course to Globally Disappeared and Accountability at Home and Abroad.

Item No. 1. Another call for Gitmo closure -- this time from Colin Powell (below), U.S. Secretary of State when the camp opened in 2002 -- came yesterday on "Meet the Press":

If it was up to me I'd close Guantánamo, not tomorrow, but this afternoon. I'd close it. And I would not let any of those people go. I would simply move them to the United States and put them and put them into our federal legal system. The concern was, 'Well, then they'll have access to lawyers. Then they'll have access to writs of habeas corpus.' So what? Let them. Isn't that what our system's all about? And by the way, America has, unfortunately, 2 million people in jail, all of whom had access to lawyers and access writs of habeas corpus. And so we can handle bad people in our system. And so I would get rid of Guantánamo and I'd get rid of the military commission system, and use established procedures in federal law or in the Manual for Courts-Martial. I would do that because I think it's a more equitable way to do it and it's more understandable in constitutional terms.
But I would also do it because every morning I pick up a paper, and some authoritarian figure, some person somewhere is using Guantánamo to hide their own misdeeds. And so essentially we have shaken the belief that the world had in America's justice system by keeping a place like Guantánamo open and creating things like the military commission. We don't need it, and it's causing us far more damage than any good we get for it.
But, remember when I started this discussion, saying, 'Don't let any of them go. Put them into a different system, a system that is experienced and knows how to handle people like this.'

Item No. 2. As posted, the commissions of which Powell spoke were halted after 2 military judges held themselves without jurisdiction to hear cases brought before them. The ruling's fueled challenges in the U.S. Court of Appeals for the District of Columbia Circuit. The 1st is on behalf of Salim Ahmed Hamdan, an en banc challenge to the commissions (N.B. Judge Allred's issued a revised order linking dismissal in Hamdan to Judge Robertson's reasoning at 344 F. Supp. 2d 152, 156 (D.D.C. 2004). The 2d is on behalf of other detainees, challenges to the Combatant Status Review Tribunals designed to precede any trial proceedings. And even before the military judges ruled, the Supreme Court had invited a U.S. response to petitions, in Boumediene and Al Odah, for rehearing of the Court's decision not to grant immediate review of detainee challenges to channeling of habeas review implemented as a result of the Military Commissions Act of 2007. (Go-to sites for news and documents on these developments: SCOTUSblog and National Institute of Military Justice.)

Item No. 3. This morning the 4th Circuit granted habeas to Ali Saleh Kahlah al-Marri, the only known "enemy combatant" designee held on U.S. soil. Rejecting the Bush Administration's invocation of the MCA's habeas strip, the majority opinion by Judge Diana Gribbon Motz (left) remanded the case to the trial court

with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a reasonable period .... The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease.

Item No. 4. Habeas has been on Congress' agenda too: by an 11-8 vote late last week the Senate Judiciary Committee approved the Habeas Restoration Act (S. 185), which would undo the MCA's habeas strip. The bill is expected to reach the full Senate later in the month.

Item No. 5. Finally, Powell's catchall characterization of all detainees as "bad people" was off the mark. It's by no means an accurate label for all the 700 boys and men who've passed through Guantánamo (where, incidentally, a 4th suicide occurred 2 weeks ago almost without remark). A sad reminder of that fact is the fate of nearly 2 dozen Chinese nationals of Uighur ethnicity who, after years in executive detention, were found to pose no threat to the United States. But they couldn't be returned to China because of the possibility they would suffer harm there, and no country would grant them asylum save Albania, where life this last year has been "driving them to desperation." “Sometimes,'" 1 of them told the New York Times, "'we think it would be better to go die in our homeland than to stay here.'”