January 23, 2009
Eric H. Holder, Jr., Esq., Attorney General-designate
Mark R. Filip, Esq., Acting Attorney General
The Honorable Robert M. Gates
Secretary of Defense
Re: Uighur detainees at Guantanamo Bay
My colleagues copied below and I are counsel to seventeen Uighur prisoners now in their seventh year of incarceration at the Guantanamo prison. We are relieved to see President Obama’s issuance of the Executive Order titled “Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities,” dated January 22, 2009 (the “Order”).
Pursuant to section 4 of the Order, we understand the Attorney General will direct an interagency review regarding all prisoners still held at Guantanamo. We understand the administration will promptly remedy, either by transfer or release, those imprisonments that cannot further be justified. Hundreds of prisoners will be subject to this process—to be completed, even as to the most difficult cases, in no more than one year—in which government officials will determine whether the prisoner should continue to be held.
We write because, as to our seventeen Uighur clients, there is no need to review whether they should be imprisoned. The executive branch, the judiciary, and members of Congress all have acknowledged that the Uighurs should be released. The issue for the Obama Administration is not whether the Uighurs should be released, but rather where they should be released.
We urge the government to release the Uighurs immediately in the only place they can be released—the United States. Not only would this be just, but it is in our national interest. By accepting the Uighurs, we would encourage other countries to accept the significant number of Guantanamo detainees who are cleared for release but who cannot be repatriated. Bringing the Uighurs here is thus an important early step toward carrying out President Obama’s Executive Order and removing a stain on our National character.
The Uighurs present a near-unique profile. The Uighur men at Guantanamo are all from a part of far-western China known as the Xinjiang Uighur Autonomous Region. Chinese persecution of the Uighurs has been notorious and well documented.1 The United States Congress has repeatedly noted and condemned Uighur oppression.2 The Department of State has long taken note of the China’s strategy of using the U.S. war on terror as a pretext to oppress independent religious leaders and “peaceful political dissent” by Uighur separatists.3
The material facts are the same as to each man. Our clients were sold to U.S. forces by bounty hunters and transported to Guantanamo. By the end of 2003, well before the institution of the Combatant Status Review Tribunals (“CSRTs”),4 our military had cleared most of the Uighurs for release. Despite their early clearances, the Government put the Uighurs through CSRTs in 2004 and 2005.5 In 2008, the D.C. Circuit closely reviewed the case of Uighur detainee Huzaifa Parhat. See Parhat v. Gates, 532 F. 3d 834 (D.C. Cir. 2008). The Court found the government’s evidence to justify his imprisonment utterly lacking, and vacated his enemy combatant classification. It ordered the government to “release Parhat, to transfer him, or to expeditiously convene a new CSRT.” Id. at 851. The government subsequently waived its re-CSRT option. Instead, the government sought, and was granted, the same judgment and release order against itself in four other Uighur DTA cases.6
In September 2008, the government formally conceded that none of the seventeen men is an enemy combatant. On October 7, 2008, U.S. District Court Judge Ricardo M. Urbina held that their continued imprisonment was indefinite and unlawful. He ordered the government to bring all seventeen Uighurs to his courtroom for release into the United States on appropriate conditions. In re Guantanamo Bay Detainee Litigation, 570 F. Supp. 2d 13 (D.D.C. 2008). At the hearing, the government advised Judge Urbina that it had no evidence that any of the men, if released, would present any risk to the public.7 All of this was consistent with military determinations that these men were no threat to anyone, as it was consistent with the efforts of our State Department over many years to resettle the men with allies.
Review has been undertaken by the military, the Department of Justice, and the courts, and has conclusively resulted in exoneration.8 There is literally nothing left to review. Accordingly, in these seventeen cases, the Executive should proceed directly to the “remedy” contemplated by the Order, i.e., transfer or release either by direct Executive action or by withdrawing the appeal of Judge Urbina’s order.
The State Department has, without success, attempted to resettle the men abroad since at least 2004, and possibly earlier. The Chinese government has actively undermined the State Department’s efforts. It has successfully pressured nations both strong and weak not to take the Uighurs. It apparently redoubled its efforts to thwart resettlement of the seventeen men at Guantanamo after five exonerated Uighurs were given asylum by Albania in 2006. Moreover, foreign governments have been unwilling to volunteer to take Guantanamo refugees so long as the United States has refused to do so itself. In light of section 3 of the Order, these seventeen men must be released into the United States no later than one year from today, unless a suitable country of resettlement is located. In light of the extensive resettlement efforts to date, prolonging their imprisonments to continue the futile search would extend a cruel and unlawful imprisonment to no purpose.
Fortunately, detailed resettlement arrangements have already been put in place and presented to Judge Urbina, as shown in the attached materials that previously were submitted to the Court. These include the provision of refugee services by religious and refugee organizations. We are amenable to the imposition of reasonable release conditions, such as, for example, monitoring, by the Court in consultation with the Department of Homeland Security.
Although the Executive may choose to grant the men an immigration status, it may also choose not to do so. We do not believe that executive compliance with Judge Urbina’s release order would necessarily confer upon the men any immigration status. In such a situation, the men might be subject to removal to an appropriate country of resettlement should one later be found.
We are buoyed by the President’s prompt attention to the urgent problem of Guantanamo. Now is the time to press forward with action. We urge the President at long last to end these astonishing imprisonments. By doing so he will signal to the American people that the administration is determined to act, rather than merely speak, and to foreign governments that America will exercise responsible leadership in an area where international cooperation will be crucial to the achievement of the President’s one-year objective. And by doing so he would at last, in some small way, begin to do justice for these men.
A remedy can be affected in the first instance by moving to dismiss the appeal and vacate the stay in the Court of Appeals. This will return jurisdiction to the habeas judge. I copy Mr. Loeb and Mr. Henry, who have a deep knowledge of these cases and the pending appeal.
Very truly yours,
cc: Thomas Perrelli, Esq., Associate Attorney General-designate
Robert M. Loeb, Esq., U.S. Department of Justice, Civil Division
Terry Henry, Esq. , U.S. Department of Justice, Civil Division
Susan Baker Manning, Esq.
Neil McGaraghan, Esq.
Eric Tirschwell, Esq.
Michael Sternhell, Esq.
Seema Saifee, Esq.
Elizabeth Gilson, Esq.
George Clarke, Esq.
Angela Vigil, Esq.
Wells Dixon, Esq.
Emi MacLean, Esq.
(counsel to the Uighur petitioners)
1: See, e.g., Shirley A. Kan, U.S.-China Counterterrorism Cooperation: Issues for U.S. Policy, Congressional Research Service (CRS) Reports, No. RL33001 (updated Sept. 2008), available at http://assets.opencrs.com/rpts/RL33001_20080911.pdf.
2: In 1996, the House condemned the religious repression of Uighurs in Xinjiang. See H.R. Res. 461, 104th Cong. (1996). Both the Senate and House passed resolutions calling for the release of prominent Uighur dissident Rebiya Kadeer, who was then imprisoned and is now a U.S. asylee. See S. Con. Res. 81, 106th Cong. (2000); see also H.R. Res. 477, 108th Cong. (2003) (bill calling for Ms. Kadeer’s release). In 2007, two House bills were introduced condemning the oppression of the Uighurs. See H. R. Res. 497, 110th Cong. (2007); H. R. Res. 608, 110th Cong. (2007). Just this year, three resolutions were introduced in the Senate and House condemning human rights abuses of the Uighurs. See H.R. Res. 1370, 110th Cong. (2008); S. Res. 574, 110th Cong. (2008); H.R. Res. 1140, 110th Cong. (2008).
3: See, e.g., U.S. Department of State, China (includes Tibet, Hong Kong, and Macau), Country Reports On Human Rights Practices 2004 (released Feb. 2005), at http://www.state.gov/g/drl/rls/hrrpt/2004/41640.htm.
4: In June 2004, the Supreme Court issued its decision in Rasul v. Bush, 542 U.S. 466 (2004), concluding that federal district courts have jurisdiction over statutory habeas claims filed by Guantánamo prisoners. Nine days later, the Department of Defense issued an order establishing “Combatant Status Review Tribunals” (“CSRT”) to determine whether the detainees at Guantanamo—many of whom had already been imprisoned there for over two years—were properly held as enemy combatants.
5: Five Uighur men were determined by their CSRTs not to be enemy combatants, while the seventeen who remain imprisoned were all classified as enemy combatants. Given that the basic facts were the same as to all twenty-two, the classification as an enemy combatant or not seems to have been arbitrary. The five Uighurs who were cleared were sent to Albania in May 2006. Of the seventeen who remain imprisoned, at least two were initially determined not to be enemy combatants, but had their classifications changed after intense pressure from the Pentagon. See, e.g., In re Ali, No. 06-1194, (U.S. Feb. 13, 2007) (original habeas petition quoting declassified 2005 Pentagon memo: “16 of 22 Uighers have been classified as EC and the same criteria applied (per SPECIAL Uigher Chart) to them as well. Inconsistencies will not cast a favorable light on the CSRT process or the work done by OARDEC. This does not justify making a change in and of itself, but is a filter by which to look at the overall Uigher transactions since they are all considered the same notwithstanding a specific act. By properly classifying them as EC, then there is an opportunity to (1) further exploit them here in GTMO and (2) when they are transferred to a third country, it will be controlled transfer in status. The consensus is that all Uighers will be transferred to a third country as soon as the plan is worked out.”).
6: Judgment, Abdul Semet v. Gates, et al., Nos. 07-1509, 07-1510, 07-1511, 07-1512 (D.C. Cir. Sept. 12, 2008).
7: The government immediately appealed, and obtained a stay of Judge Urbina’s release order pending resolution of the appeal. The D.C. Circuit heard argument on the morning of November 24, 2008, but has not ruled.
8: The only issue left on appeal is whether the court had the power to order the release of the men into the United States over the objection of then-President Bush.
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