Saturday, May 30, 2009

Kiyemba Kraziness Kont'd

I just got through the first week of the Hell on Earth that is studying for the Virginia Bar Exam. Due to the fact that it has basically taken over my life blogging will be somewhat light this summer, but don't worry, I will not stop my quest to keep the 5 people that read this blog informed of developments in the arena of national security law. Today's post is concerned with yesterday's filing of the government's brief in opposition to the Kiyemba cert petition. Remember this case is the one about the 17 Uighurs being held at Gitmo who have won their habeas cases, but continue to be held nonetheless because they can't be sent back to China and no other country is willing to take them. The crux of the government's argument is basically this: a federal court cannot force the Executive branch to release the Kiyemba petitioners into the U.S. outside of federal immigration law. The government cites the fact that since the petitioners have not been brought into U.S. sovereign territory they do not have the right to be released into the U.S. It also argues 1) that it doesn't matter that the Uighurs were brought into U.S. custody involuntarily; and 2) that habeas corpus merely grants the right to simple release not a right to release into the U.S.

The government says that the Uighurs' situation is not distinguishable from several other immigration cases holding that aliens in U.S. custody outside of U.S. sovereign territory did not have the right to challenge their detention and gain entry into the U.S. I disagree that the Uighur case can't be distinguished. I think the fact that the Uighurs were captured and brought into U.S. custody at Gitmo because they were pegged as enemy combatants (mistakenly so) is a lot different than previous cases. The brief cites a case involving the apprehension of Hatians at sea who were trying to get to the U.S. who were not allowed entry into the U.S. and instead held at Gitmo until they could be repatriated. The difference here is that the Uighurs weren't attempting to gain entry into the U.S., they were wrongly apprehended and dragged to Gitmo where they have been wrongly held for years. Furthermore, that case wasn't even a habeas case. Those Haitians were trying to enter the U.S. illegally and were caught and held. They never got habeas relief like the Uighurs here have.

Also, I think the argument that habeas simply grants release for the Uighurs and not release into the U.S. is ridiculous in this situation. First of all, without an ability to obtain release the right to habeas corpus means nothing. The goverrnment argues that the Uighurs are free to leave anytime they want if they can find a country that will take them. It says that the Uighurs don't want to go back to their native China because of the treatment they will recieve there so they are basically choosing not to leave Gitmo. This argument is completely absurd and a little bit infuriating. Even if the Uighurs wanted to go back to China I'm not sure the U.S. can release them to China because of the certainty they will be treated inhumanely there. Furthermore, the reason they can't find a country that will take them now is because their incarceration at Gitmo has permanently tagged these guys as dangerous terrorists. Yes, the Uighurs have gone to terrorist training camps, but it is the illegal actions of the U.S. government that imprisoned them and caused them to be left them without a home anywhere in the world.

Finally, I don't completely buy the argument that Gitmo is not part of U.S. sovereign territory. The Court in Boumediene did find that Cuba maintains ultimate, de jure sovereignty over Guantanamo Bay, but it also found that the base at Gitmo is under de facto sovereignty of the U.S. and that the U.S. maintains ultimate jurisdiction there. That is a major factor that weighed in giving Gitmo detainees the right to habeas proceedings. So what does that mean? I don't know. I guess it means we have sovereignty and we don't at the same time. I guess it means that we have sovereignty enough to allow for habeas rights, but not to the point that we have to provide them with the relief habeas requires.

The ideological side of me is pretty outraged at the argument to keep the Uighurs locked up. The notion that they have received the relief they are entitled to is totally absurd. They are still in prison. The right to a court proceeding is not what habeas is about. It's about a right to be released and the people that put you in jail have the obligation to let you out if it is found you are being wrongfully incarcerated. The pragmatic side of me knows that we can't let the Uighurs be released into the United States. There is no doubt in my mind that these guys harbor some serious ill will towards this country. They are in fact trained terrorists and letting trained terrorists into a country that they despise is a phenominally bad idea. We're essentially stuck between a rock and a hard place here.

Will the Court hear this case? I don't know. In one sense if I were the Court I wouldn't want to get withing 1,000 miles of this thing, but in another sense the legal question the case presents is so serious and unsettled that it would look like the Court is trying to hide from it if they deny the cert petition. In the end, if they hear the case, I think the only choice the Court has is to rule against the Uighurs. If the Court ruled for them and released terrorists into the U.S. there would be a public outcry of biblical proportions and it would set precedent for others held at Gitmo that win their habeas cases to be released here which would only increase public safety concerns.

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