From the Washington Post:
“The Obama administration, picking up the argument of its predecessor, is opposing the release of Chinese Muslim detainees at Guantanamo Bay into the United States.
In papers filed with the Supreme Court late Friday, the administration says a group of Uighurs (pronounced WEE’-gurz) are being lawfully held at the U.S. Navy base in Cuba even though they are not considered enemy combatants. (…)
The Uighurs’ “continued presence at Guantanamo Bay is not unlawful detention, but rather the consequence of their lawful exclusion from the United States,” Solicitor General Elena Kagan told the court.
The men are held apart from the other detainees, in the least restrictive conditions, Kagan said. “They are free to leave Guantanamo Bay to go to any country that is willing to accept them,” she said.”
The administration’s brief is here (pdf). One note: I think it’s not quite accurate to say that the administration is “opposing the release” of the Uighurs in this brief; it is arguing that it cannot be compelled to do so by court order. That said:
I have no idea whether or not the administration’s argument is correct as a matter of law. Moreover, I don’t care. Whatever the law says about whether it can be forced to admit the Uighurs, the administration has the right to admit them voluntarily. If it cannot find another country that is willing to take them, then it should.
We set up a system that gave people incentives to turn over people they claimed were foreign fighters, whether they were or not. We then dismantled all our normal procedures for separating combatants from non-combatants. It should not surprise anyone that we ended up detaining people who were innocent.
I have no problem with the government taking some reasonable period of time to try to identify another country that is willing to take detainees who cannot be returned to their own countries. But these detainees have been held for seven and a half years. That’s not a reasonable amount of time to tie up loose ends; it’s a tenth of a normal lifespan.
We screwed up. We should step up to the plate and do what’s right. Seven and a half years is too long.
And one other thing: the administration says this about the Uighurs: “Petitioners would like the federal courts to order that they be brought to the United States, because they are unwilling to return to their home country.” (p. 11) As Registan notes, this is false. The reason we cannot send them back to China is not that they are “unwilling” to go back; it’s that we believe, with good reason, that they would be tortured or killed if they were repatriated. That means that it would be illegal for us to send them back.
It’s also a bit disingenuous for the administration to argue that the Uighurs are free to leave. The Bush administration has previously argued that they cannot be set free in Guantanamo, for the perfectly good reason that Guantanamo is a military base, and we do not normally allow people free access to military bases.