an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yesterday, Reuters reported here that Albania has agreed to accept five Uighur detainees who have been held for years in a nightmarish limbo at Guantanamo. Two weeks ago, another Reuters report indicated that “nearly 30 percent of the Guantanamo detainees have been cleared to leave the prison but remain jailed because the U.S. government has been unable to arrange for their return to their home countries,” according to the Pentagon.
Just how nightmarish the limbo has been became clear in the opinion U.S. District Judge James Robertson issued last December. Hardly concealing his frustration, Robertson detailed incredible duplicity and stonewalling by government lawyers opposing the Center for Constitutional Rights' suit on behalf of the Uighurs. The Uighurs had been wrongly imprisoned for four years, then exonerated -- but the government still insisted on its right to take its good-natured time ("all deliberate speed", anyone?) before releasing them. Displeased though he was, Judge Robertson eventually concluded that the law affords the Uighurs no remedy. They appealed, and the case was about to be argued before the D.C. Circuit; perhaps the timing of the Uighurs' release to Albania is not a coincidence.
These detainees have been trapped by a Catch-22. They faced Combat Status Review Tribunals (CSRTs) – the panels set up by Paul Wolfowitz (under Supreme Court pressure) to determine which of the Guantanamo detainees are actually “enemy combatants” – and were found to be "NLECs" -- No Longer Enemy Combatants. This by itself is noteworthy, because the CSRTs are notoriously slanted against the detainees. In other words, if you’re cleared by a CSRT, you are really cleared. Why, then, are they still in Gitmo?
According to the government, the detainees couldn’t be repatriated because they face the prospect of torture in their home countries. The Uighurs, for example, belong to a Muslim ethnicity in western China that has for years been locked in a violent struggle against the Chinese government. Article 3 of the Convention Against Torture forbids returning, expelling, or extraditing people to countries where they face a substantial likelihood of torture. The United States is, of course, a party to CAT, and a federal statute (the FARR Act, sec. 2242(a), 112 Stat. 2681-822) declares non-return to be a “policy” of the United States government, and instructs federal agencies to come up with regulations implementing it.
Now, one of the oddities of the U.S. refusal to return the Uighurs to China (obviously the right decision if they face torture there) is how wildly inconsistent the rationale is with the U.S. practice of extraordinary rendition. Yesterday, State Department legal advisor John Bellinger appeared before the U.N.’s Committee Against Torture and testified that Article 3 (the non-return clause) doesn’t apply to people captured and held outside of U.S. territory. (The written version is scheduled for release Monday.) Bellinger’s statement made explicit what many had assumed: that this interpretation of Article 3 forms the legal rationale for extraordinary rendition. (See Marty Lederman's post on this blog last August.) If they’re captured outside the United States, and held outside the United States, sending them to another country doesn’t count as “returning” them and doesn't violate the Torture Convention. This is the kind of loophole legalism we have come to know and love in the Bush Adminstration’s detainee policies. However, the FARR act declares non-return of people to face torture to be U.S. policy "regardless of whether the person is physically present in the United States" - a detail that Bellinger ignored. But perhaps he believes that mere "policy" doesn't rise to the level of legal obligation, even when it is written into law.
Given that the administration doesn’t concede a legal obligation not to send extraterritorial detainees back to face torture, their rationale for keeping the Uighurs detained for years after the CSRT cleared them is presumably public relations: it would look bad to send innocent people to their doom at the hands of the Chinese government. And, according to government lawyers, the U.S. could not find any other country willing to accept them, until Albania agreed to do so.
Well, good for Albania (as long as it is truly making a humanitarian gesture, and doesn’t plan to slap them in prison the moment their plane touches down in Tirana). I can’t imagine, though, that a lifetime in Albania – a partially lawless, clannish place where the Uighurs’ appearance will make them stand out like sore thumbs, and where they very likely don’t know the language – is exactly a consolation prize.
In the case of detainees cleared by the CSRTs – who U.S. processes found not to pose a danger to the United States – mere decency requires us to offer them another option: green cards, or at least political asylum, if they want it. We’ve imprisoned them for years “by mistake” – maybe an honest mistake. So why not apologize by giving them the option of immigration to the United States? By now, they probably have picked up at least as much English as many immigrants from non-English-speaking countries. It seems obscene to say, “Well, now we know they aren’t our enemies. If we can't find anyone else who wants them, we’re going to keep them in Gitmo iindefinitely because they would be in danger in their home country. But heck, we sure won't let them into the United States!” They’re good enough for Albania, but not for us: a nice slap in the face to the Albanians.
Maybe the exonerated detainees don’t want to live in the United States. Maybe their all-expenses-paid tropical holiday in Gitmo has not exactly endeared the United States to them. Maybe, just maybe, they want to be as far from the United States as possible. But we owe them the right of refusal. Posted
by David Luban [link]