samedi 5 mai 2007


Uighur Cases Highlight Legal Wrangling Over Guantanamo Detentions

Guy Taylor 18 Apr 2007 World Politics Watch Exclusive

U.S. NAVAL STATION GUANTANAMO BAY, Cuba -- The recent conviction of Australian kangaroo-skinner turned globetrotting jihadist David Hicks may, at least temporarily, bring an end to years of judicial power struggles that have surrounded the creation of a special war crimes tribunal here.

However, while the special tribunal will bring some form of justice for men like Hicks and other high-profile detainees -- including admitted Sept. 11 plotter Khalid Sheikh Mohammed -- the fate of hundreds of lesser-known prisoners is still undetermined.

As Hicks inked a deal in late-March to plead guilty to providing material support for terrorism in exchange for a nine month prison term to be served in Australia, Brig. Gen. Cameron A. Crawford, the deputy commander the Guantanamo prison, told World Politics Watch that military officials have evidence to build future cases against only about 80 of the some 390 men held here.

It remains to be seen what will become of the 310 or so others -- men classified by the Defense Department as "enemy combatants" in the war on terror -- who don't get charged with war crimes. Away from the headlines in the Hicks case, an Olympics of legal wrangling over the issue is ongoing, being contested in U.S. federal courts by human rights, Pentagon and U.S. Justice Department lawyers.

'A Difficult Problem'

For a window into the depths of these legal battles, one need look no further than the case of 17 ethnic Uighurs (pronounced "Weegurs") who have been imprisoned at Guantanamo since shortly after the detention facility opened in early 2002.

The Uighurs hail from a cluster of Muslim towns and villages in Western China's Xinjiang province -- the Uighurs call the area East Turkistan -- where a separatist faction has for years been engaged in a low-intensity struggle for independence from Beijing.

They were detained in the mountainous Pakistan-Afghanistan border region during the weeks following the U.S.-led invasion of Afghanistan in late 2001.Military officials argue the Uighurs are being kept at Guantanamo because they are enemy combatants who associated with al-Qaida in Afghanistan after traveling there from western China prior to the U.S. invasion.

Human rights advocates and pro-bono civilian lawyers, on the other hand, argue the Uighurs went to Afghanistan because they were fleeing torture in their homeland at the hands of Chinese authorities, who are looking to quell the separatist movement in East Turkistan and see the Uighurs as terrorists.

The men ended up at Guantanamo, the lawyers argue, after Pakistani mercenaries seeking cash payouts from U.S. agents rounded them up and handed them over to U.S. forces invading Afghanistan.

During the years since, the Uighurs have presented a difficult challenge for U.S. defense and diplomatic authorities. Initially, there were 22 of them brought to Guantanamo, but after an early review of their status, the Pentagon concluded that five were not enemy combatants. Releasing the five was problematic, as U.S. authorities grappled with the realization that sending them to China would almost guarantee their prosecution -- and potentially execution -- by the Chinese government as separatist terrorists.

As then Secretary of State Colin Powell acknowledged in August 2004, the Uighurs presented the United States with "a difficult problem" and were "not going to be sent back to China." While the men remained imprisoned at Guantanamo, U.S. authorities spent the next two years searching for somewhere to send them. Last May, the State Department finally settled on an arrangement for the five to be released to a United Nations refugee center in Albania.

It's unclear whether the U.S. government is now looking for somewhere to send the 17 Uighurs who remain at Guantanamo, and how similar their backgrounds are to the five who were released. The State Department referred all questions on the matter to the Defense Department, which offered only scant details on the men.

"Over a dozen Uighurs are being held at Guantanamo, Camp Delta," said Navy Cmdr. Jeffrey D. Gordon, a spokesman at the Pentagon. "They are all considered enemy combatants".

'No Country Will Take Them'

Critics of Guantanamo contend the difficulty encountered by the United States in finding a home for the five Uighurs who were deemed not to be enemy combatants explains why the Pentagon now classifies the remaining 17 as enemy combatants.It has become impossible for the United States to find a country willing to take them, says Sabin Willett, a Boston-based attorney with the law firm Bingham McCutchen, which is trying to win the Uighurs a status hearing in U.S. federal court.

It's a problem compounded, according to Willett, by an ongoing "propaganda" campaign being waged by the administration of U.S. President George W. Bush to convince the world that Guantanamo is a place reserved for serious war criminals. "No country will take them," says Willett, "because either they've read all the newspapers printing claims by U.S. authorities that Guntanamo is a place where the worst of the worst are being held, and they believe that it's true, or, these countries say, 'Well if these guys are innocent, then why don't you, the United States, take them? Why won't you take them if they're not bad guys?'"

"And the U.S. doesn't really have a good answer for that," adds Willett, who says his goal is to get the Uighurs "out of Guantanamo, either to a foreign country that will give them asylum, or the United States."

Legal Limbo

In the aftermath of Sept. 11, the United States has detained hundreds of men, classifying them as enemy combatants unworthy of some of the protections accorded to traditional prisoners of war under the Geneva Conventions. In response, dozens of civilian lawyers such as Willett have fought for the detainees to be handled as international criminal suspects with the right to have their detention reviewed by judges in the U.S. federal court system.

The U.S. Supreme Court delivered a double-ruling on the matter in 2004, finding that while the Defense Department was authorized to detain and interrogate prisoners at Guantanamo without charges or trials, the detainees could also file challenges to their detention in the U.S. civilian courts.The ruling supported dozens of filings that had been made in the civilian courts on behalf of Guantanamo detainees, the Uighurs included, who sought habeas corpus hearings -- essentially reviews of the legal and evidentiary justification for their detention.

But the filings, referred to by Bush administration lawyers as a "regime of habeas litigation," were brought to a standstill by aggressive appeals filed by the administration, which sought to win the legal authority to open the special military-run war crimes tribunal at Guantanamo to try the detainees.

The subsequent battle over the legal status of the detainees has been shaped by three developments in Washington. First, in 2005, with a push by Republican Sen. John McCain, who was tortured as a prisoner of war in Vietnam, Congress passed the Detainee Treatment Act, barring cruel, inhumane and degrading treatment of prisoners held by the U.S. military.

Next, in 2006, the Supreme Court ruled that the Bush administration's design for the special war crimes tribunal, which had been authorized by an executive order in the aftermath of Sept. 11, was unlawful and violated the U.S. Uniform Code of Military Justice as well as the 1949 Geneva Conventions.

The third development came late last year, in response to the Supreme Court's ruling, when Congress passed the Military Commissions Act of 2006. The act authorized the Bush administration to move forward with a modified version of the special tribunals at Guantanamo.

It also included a key provision barring the right of detainees to challenge their detention in U.S. federal courts -- contrary to the Supreme Court's 2004 ruling, which had granted such rights.
As a result, the dozens of pending habeas corpus filings that had been made in federal court on behalf of the detainees were quashed.

With the new law in place, in February of 2007, the U.S. Court of Appeals for the District of Columbia Circuit ruled that civilian courts no longer have the authority to consider whether the military is illegally holding foreigners at Guantanamo.

The ruling, however, has not stopped human rights lawyers from seeking a civilian court remedy for the detainees. Specifically, Willet is pushing ahead with a lawsuit filed in the appeals court on behalf of the Uighurs, arguing that the circumstances surrounding their detention are unique and deserving of a federal court review.

Beating a Dead Horse?

Willett's suit, which is currently pending with a hearing scheduled for mid-May, homes in on the so-called Detainee Treatment Act of 2005, which included a key provision designating the appeals court as the final arbiter should disputes arise over the process through which the Defense Department determines that individuals are enemy combatants.

After the Military Commissions Act of 2006 had stripped the rights of detainees to file habeas corpus petitions in federal court, Willett argues, the Detainee Treatment Act became "the last remedy left" for the detainees.

His lawsuit alleges that military officials failed to follow the Defense Department's own procedures during a series of prisoner status hearings given to the Uighurs at Guantanamo. The proceedings, called Combatant Status Review Tribunals (CSRTs), consist of a panel of military officials who offer each detainee a chance to declare his innocence before the officials review classified evidence against him to decide whether he is being correctly categorized as an enemy combatant.

"Each [Uighurs'] CSRT was inconsistent with the standards and procedures specified by the Secretary of Defense, because none appropriately applied the definition of 'Enemy Combatant,' Willett's lawsuit asserts. "

The CSRT Procedures defined an 'enemy combatant' as: 'an indidvidual who was part of or supporting the Taliban or al-Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.'"The suit claims that military officials conducting the CSRTs failed to consider case files that had been compiled from interrogations of the Uighurs at Guantanamo and prior to their being shipped to the prison. The files, the suit alleges, "showed that interrogators had concluded that they were innocent of involvement in military or criminal activity."

In an interview, Willett added that the Uighurs' status review tribunals were legally inconsistent. "Some of [the Uighurs] were deemed to be non-combatants," he said. "Others, for arbitrary reasons, were deemed to be enemy combatants, although the last time I checked, the United States was not at war with dissidents from communist China."

Last week, the Defense Department, represented by a team of Bush administration lawyers including Assistant Attorney General Peter D. Keisler, filed a response to Willett's claims. The administration argues he is beating a dead horse since Congress recently passed, and the appeals court upheld, a law barring Guantanamo detainees from challenging their detention in the civilian courts.While the response acknowledges the appeals court as the final arbiter of disputes over the legitimacy of the CSRT process, Keisler's team asserts that Willett is really trying to "recreate the habeas regime that Congress recently abolished."

The team points out that all of the Uighurs represented by Willett were previously involved in "a habeas case in district court that [the appeals court] recently dismissed." Ultimately, the team argues, Willett's current case boils down to a simple question: "[Should] detainees captured on a battlefield during a time of war, be given unprecedented access to our nations courts and to classified information, even after Congress emphatically rejected such an approach?"

Directly to the Supreme Court

While the Supreme Court's 2004 ruling clearly stated that Guantanamo detainees could file challenges to their detention in the U.S. civilian court system, the court has since declined to weigh in on Congress' subsequent passage of the Military Commissions Act of 2006, which, according to the Bush administration's argument, all but nullifies the ruling.But, in what can best be explained as an added wrinkle to the Uighurs' case, another group of lawyers representing one of the 17 Uighurs held at Guantanamo has recently filed a petition directly to the Supreme Court. Known as an "original petition for habeas corpus," the filing was evidently motivated by a desire to circumvent the impasse over the Uighur issue in the lower courts.

Filed on behalf of an individual identified only as "Ali," the petition was initially classified because it draws from sensitive Defense Department documents related to Guantanamo. An unclassified version obtained by World Politics Watch argues that the military officials who conducted Ali's initial CSRT in 2004 found him not to be an enemy combatant -- only to have their finding overruled by more senior officials at the Pentagon who ordered that Ali's status be "reconsidered."

The petition cites a chain of internal Defense Department emails in which military officials write the following about the Uighurs:
16 of the 22 Uighurs have been classified as [Enemy Combatants]. . . . Inconsistencies will not cast a favorable light on the CSRT process. . . . By properly classifying them as [Enemy Combatants] there is an opportunity to (1) futher exploit them here in [Guantanamo] and (2) when they are transferred to a third country, it will be controlled transfer in status. The consensus is that all Uighurs will be transferred to a third country as soon as the plan is worked out.
The petition also claims that in directing that Ali's classification be reconsidered, then-Deputy Assistant Secretary of Defense for Detainee Affairs Matthew Waxman "noted that '16 other Uighurs with identical circumstances were determined to be [Enemy Combatants]." Shortly afterwards, in 2005, the petition states that Ali was given a new CSRT review and determined to be an enemy combatant.

The Ali filing is presently pending before the Supreme Court.It remains to be seen what legal strategy the Defense Department will embrace in its response. Asked about the overruling of Ali's classification as a non enemy combatant, Navy Lt. Cmdr. Chito Peppler, a spokesman at the Pentagon who specializes in the CSRT process, said it is not against the Defense Department's rules for for military officials in Washington to send the initial findings of a CSRT back to Guantanamo for "further deliberation."

"This is something that happened only a small number of times," said Peppler, who responded to questions by email and declined to say precisely how many times it has occurred, or to discuss the Ali case specifically. "In the majority of cases which were returned for further deliberation, the original CSRT decision remained the same," Peppler said. "Where original decisions changed, they changed in both directions (e.g. from [Enemy Combatant] to [No Longer Enemy Combatant] and from NLEC to EC)."

Diplomatic Poker Chips?

For his part, Willett says the Ali filing exposes the extent to which the legal proceedings being conducted by military officials at Guantanamo are little more than "a Kangaroo court."Willett' suit alleges that the Defense Department's continued detention of the Uighurs has been motivated by a desire to use them as strategic pawns in a murky game of U.S. diplomacy in the global war on terror.

The suit outlines how, shortly after the attacks of Sept. 11, 2001, Chinese authorities began ramping up rhetoric against the Uighur separatist movement in Xinjiang province, claiming the "East Turkistan Islamic Movement" was a terrorist organization whose existence warranted aggressive tactics to quash it.

Prior to Sept. 11, and to the subsequent capture and transfer to Guantanamo of the Uighur detainees, the U.S. State Department did not recognize the East Turkistan Islamic Movement as a terrorist organization. That changed when the United States began preparing to invade Iraq.

In an effort to win support for the invasion from the Chinese, who carry significant diplomatic sway in the Middle East and hold a permanent seat on the U.N. Security Council, the State Department not only added the group to its list of recognized terrorist organizations but also allowed Chinese agents to visit Guantanamo and interrogate the Uighurs, the suit claims."

The Uighurs -- and specifically the Uighurs in Guantanamo -- became a diplomatic chip in this high-stakes game, a quid pro quo for Chinese acquiescence in the Administration's Iraq policy," the suit alleges."

This astonishing episode in U.S. diplomatic history -- the United States welcoming agents of a communist government to its secure military facility at Guantanamo, granting them prisoner access that it has strenuously denied the U.S. courts, Congressmen, the United Nations, and the Press, and branding as 'terrorist' an 'organization' it had previously determined not to be a terrorist organization -- points up the urgency, at the time, of the Iraq issue," the suit claims.

"This was a naked political deal to help secure China's tacit acquiescence in the Iraq invasion being planned in 2002."Ultimately, the document acknowledges, it didn't work -- the United States failed to build a consensus among world powers to overthrow Saddam and instead opted to enter Iraq with a "coalition of the willing."

Willett contends that political motives underlie U.S. dealings with all of the detainees at Guantanamo, regardless of whether they are well-known terrorists like Khalid Sheikh Mohammed or David Hicks. "These people will be released when and if there is a political deal with some country to take them, just as [Australian David Hicks] pled because there was a political deal with Australia," he said. "Neither one has anything to do with truth. Neither one has anything to do with your actual status as an enemy or as a criminal. It's all politics here at Guantanamo."

Guy Taylor is World Politics Watch senior international editor.

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