Centerfield

Broken link--the WaPo story is here.

Law and Justice are obviously not the same thing. Here we have a milder realization of what I highlighted as a potential problem with incorporating ICAT into US code--that we might be faced with the choice of holding hostile "enemy combatants" perpetually, or releasing them into the US under asylum, because the law might not permit us to return them whence they came. Except these guys aren't even hostile enemy combatants.

They may not be total innocents, they might even be hostile, but that's somewhat irrelevant--they're being held with no real basis to hold them any longer, simply because there's no existing legal procedure to let them go. They are either stateless and in Limbo, or dead.

Returning them to China is utterly out of the question--they would be excuted or imprisoned out of hand, and probably tortured first. No one will give them asylum elsewhere. Robertson's proposed solution (restricted asylum in the US) is the only real answer, but under his decision the courts can't do that. Which means the executive branch needs to.

Do you see any alternative, JD? Other than just holding them forever, which I think we completely agree is also unacceptable? We're going to face the same problem eventually with actual hostile enemy combatants as well. When they are determined to no longer be threats to us, what do we do with them if the only people who will take them will persecute, torture, and/or kill them? Give 'em a green card?

The executive ought to do something, but the executive hasn't. It could have done any number of things (like restricted asylum in the U.S.--even to a non-state territory, like the Northern Mariana Islands or Guam--or transfer to the detention camp for Haitian refugees within Guantanamo) even before Judge Robertson's ruling.

While it's true that there's a difference between law and justice, that difference is preserved in our judicial system in the separation of law and equity. And, as Judge Robertson observes in his memorandum opinion, habeas relief is equitable relief (not legal relief).

Transfer to another detention camp isn't a solution, it's just a shuffle. NMI would expose them to the Chinese at a single remove--there's almost as many Chinese immigrants and Chinese "guest workers" on NMI as there are natives. (I don't dislike the idea, I think the particular locale mentioned is problematical.)

Yeha, they coulda done something, but they didn't. Probably hoping someone would take the decision and action off their hands. But now they're the only line of action available, correct? (Unless the appeal goes an unexpected direction.)

Excuse me J.D., you want to release these people willy nilly on Asylum into the U.S.A.? Did you notice this quote from the judge?

These petitioners are Chinese nationals who received military training in Afghanistan under the Taliban.

So these Chinese muslims trekked all the way to Taliban zealot training camps in Afghanistan to learn how to kill people. They were indoctrinated by the Taliban to slay "infidel" governments everywhere and impose strict Islam.

Maybe these people who were trained by the Taliban to kill, only wished a seperatist fight in China, and they would be gentle as lambs where China is not involved. I don't think any community in the USA is eager to be the guinea pigs to find out. "Asylum" in the USA is right out, period.

Just because they don't fit the classification of enemy combatants, doesn't mean they are wonderful peaceful people who should be assimilated into any community.

They refuse to go back to the country they are from. We wouldn't send them there anyway since they'd likely be tortured -- you can see clearly why China would view them as a threat. Thus limbo.

You can also see why other countries aren't eager to accept people who attended Taliban training camps. It's asking a lot. Language is also an issue. Only a few countries have significant communities of Uighur chinese (Sweden and Turkey). I really doubt Turkey would ever take them, having been indoctinated by and associated with Islamists.

The petitioners counsel even himself said, "If they can't be repatriated to China, and they can't, then maybe they have to sit here while the problem gets solved." The judge says, "It appears to be undisputed that the government cannot find, or has not yet found, another country that will accept the petitioners."

So what is this "any number of things" that the government could be doing?

You want to indefinitely hold non-combatants not accused of any crime, Susan? If we lock up everyone in the world who isn't a sweetheart, we're gonna need an extra planet.

Well, obviously, the only solution is to put a bullet in them. I mean... it's better for us, better for China, better for... well, maybe not better for them, but they have become political inconviences, (along with things like rights and liberties), so we should do away with them?

Obviously this is a problem with almost no solution. Can we turn them over to the Afghan government? If they were trained by the Taliban for the Taliban, maybe they could be considered in violation of some law in the Karzai government?

At the very least, guilty of no crime, accused of no crime, convicted of no crime, our choices are limited. In a perfectly just world where the law truly was blind, they would be released into the US, and we would have to pay the consequences of our mistakes. But maybe a more practical solution would be a minimum security prison? At the very least, something that is not Gitmo?

Thank you, Susan, for putting words into my mouth. I said the Administration could have provided restricted asylum to non-state territory. I enumerated it as a possible outcome, not a preferred or desired outcome. But even if I had, it's not as though the United States doesn't grant asylum to persons who have trained to overthrow an autocratic regime in their home country and who would be persecuted there if captured by their government. We call some of the folks in this queer subspecies "Cuban exiles."

Tully, in this case, there is a difference between where they are and where they could be detained on Guantanamo. As my November post indicated, there is a relatively luxurious encampment of Haitians administratively detained there; a veritable Club Med, where those detained are not, for example, chained to the floor of a window-less cell. The United States District Court for the District of the District of Columbia can't order the military to make the transfer, because it lacks the power to interfere with a base commander's oversight of his installation. But the Administration could certainly order such a change. There is legal difference, after all, between enemy combatant detention (or non-enemy-combatant detention in identical quarters as enemy combatants) and immigration detention.

Tully, I did not advocate holding them indefinitely.

I asked what alternative is there to the government holding them while looking for a country to take them? J.D. says the government ought to be doing "any number of things". What are those things they ought to be doing? Everyone agrees the status quo is bad, but is criticism warranted without a credible alternative?

What do we do, waive the laws that say we can't send them back home to the China, and send them against their will where they'll be tortured? Secretly deposit them in Pakistan and let them slip across the border back to China? Pakistan and China might not be happy about that. Pay Sweden a huge sum of money to take them, even though they were trained by the Taliban to kill? The judge discussed the possibility of transferring them to an alternate facility, but he commented that each viable option (including the Haitian detention one) is actually inferior to the status quo at Guantanamo.

Susan,

Yes, criticism is warranted without credible judicial alternative. To say that the court lacks legal authority to grant relief is not the same thing as saying the executive is without more favorable options than the status quo.

Moreover, Judge Robertsonn did not say that the Haitian option is inferior. He said that he lacked authority to compel the commander of a military installation to transfer detainees (or anyone) from one part of his installation to another. See page 9 of the slip opinion. Obviously, the president has that authority.

As my November post indicated, there is a relatively luxurious encampment of Haitians administratively detained there; a veritable Club Med

This detention facility you are talking about on Guantanamo no longer exists. The Camp Delta prison complex was built right on top of the former Haitian detention center in February 2002. The last Haitian migrants departed from Guantanamo on Nov. 1, 1995.

However, a kilometer from the main prison Camp Delta, is a "Camp Iguana" facility used to house the most priveleged detainees. Some of these 38 declared non-combatants are already being held here. They have TV, air conditioning, refrigerator, sofa, two beds in a bedroom + small living room. They should improve conditions further and expand the facility to move all 38 there. The judge totally dismissed the idea of releasing these foreign nationals into the general population of Guantanamo, a secured military complex.

I hope Sweden takes them, because I doubt many of these Taliban training camp graduates will ever be released into the general population of this country. Nor should they be. That includes Guam , which surely wouldn't be eager to have them as neighbors either. Nice try comparing them to Cuban exiles, you're a good lawyer.

You said detainees at Guantanamo are chained to the floor in windowless cells. This is not how they spend their days. They have all day access to an exercise yard, communal meals and recreational activities, and can mill about freely in their prison bay with other detainees. They are only chained when they have non-detainee visitors like a lawyer, for safety reasons.

Though the haitian detention center is gone, I do see information now on the Migrant Operations Center in Guantanamo. Certainly seems like a really major step up from Camp Iguana. Does seem like a much more appropriate environment. Hm.

No judicial authority to handle them. No executive movement to do so. Hmmm...there seems to a branch not heard from yet...but that leads us right back to that authorities dogfight.

Susan, unless they have a release date or some prospect of same, they're being held indefinitely.

What do you suggest be done?

Me? I don't know. "Bit of a stickey wicket, eh?" Insufficient data. But I would think you'd have to assess how dangerous their release on limited asylum would be to US safety.

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