Saturday, May 09, 2009

The Latest Political Third Rail: Terrorists in our Neighborhoods

By William Fisher

As lawmakers amped up the outcry against releasing Guantanamo “terrorists in our neighborhoods,” France agreed to accept a “cleared” Guantanamo prisoner and human rights groups continued to press for release of 17 Chinese Uigurs who the U.S. government has declared to be no threat to American national security.

The Democratic-led House Appropriations Committee last week passed a bill to fund the wars in Iraq and Afghanistan but stripped more than $50 million that President Barack Obama had requested for closing the prison and starting the relocation of its 240 prisoners.

Lawmakers of both parties demanded that the Obama Administration present a plan for closing Guantanamo and detailing what would be done with its inmates.

Republican lawmakers said the issue is an example of Obama's weakness on national security and accused the president of endangering Americans. They proposed legislation titled the "Keep Terrorists Out of America Act," which would bar moving Guantanamo prisoners to any U.S. facility unless approved by the receiving state's governor and legislature.

"Our constituents don't want these terrorists in their neighborhoods," said House Minority Leader John A. Boehner, a Republican from Ohio.

Several Democrats have also joined Republicans in saying they do not want Guantanamo prisoners in their states or districts.

Administration officials have not said where the detainees would go, but they rejected the idea that Americans would face any risks from closing the prison by January.

"We are not going to put at risk the safety of the people of this country," Attorney General Eric H. Holder Jr. told a Congressional hearing.

Some observers said that, in the Congressional pushback against Guantanamo detainees, lawmakers appeared be conflating two separate groups of prisoners: Those who have been cleared for release because they do not pose a threat to U.S. national security, and others who will be detained in the U.S. to await trials in federal courts, or who can not be tried but are deemed too dangerous to release.

In the former category are 17 Chinese ethnic Uighurs who the U.S. says pose no security risk, but who have been detained without charge for over seven years at Guantánamo Bay. Their continued detention was found unlawful by a federal district court in January.

The court ordered the Uighurs released into the U.S. because they cannot be returned to China given the threat of torture there, and because no other country has agreed to accept them. But a U.S. Appeals Court reversed that decision when it held that federal courts have no jurisdiction over immigration law and thus are powerless to order the men released into the U.S. even if their continued detention is illegal.

The Uighurs’ lawyers, including the Center for Constitutional Rights (CCR), a legal advocacy group, has asked the Supreme Court to hear the case.

In a friend-of-the-court brief filed yesterday, the American Civil Liberties Union (ACLU) joined the CCR’s plea.

Jennifer Chang Newell, a staff attorney with the ACLU Immigrants' Rights Project, said, “The Constitution requires that where a federal court has found a detainee's imprisonment to be illegal, the court must have the power to order his release – including release into the United States when necessary to end the unlawful detention. Permitting the government to hold these men indefinitely violates the Constitution and threatens to render habeas corpus a dead letter."

Uighurs are a Turkic ethnic group living in Eastern and Central Asia.

In related developments, the government announced that two long-imprisoned GITMO detainees would soon be released.

As indicated by French President Nicolas Sarkozy during President Obama’s recent visit to Europe, France will take in one GITMO detainee -- an Algerian who has been held prisoner by the U. S. at Guantanamo since 2002. And the U.S. government agreed last week to release a Yemeni surgeon who reportedly treated al-Qaida wounded at Tora Bora in Afghanistan. That decision came as part of a new review ordered by President Obama to empty the Guantanamo prisons by January 2010.

The Algerian, Lakhdar Boumediene, 43, was arrested along with five other Algerians in 2001 in Bosnia, suspected in a bomb attack plot against the U.S. Embassy in Sarajevo. A U.S. federal judge ruled in November that the evidence against Boumediene was not credible and ordered him set free.

Boumediene is well known in legal circles because it was in his name that civil liberties attorneys argued at the U.S. Supreme Court the most recent case of prisoners’ right to seek their release through habeas corpus petitions. The court ruled in favor of the detainees in the case, Boumediene v. Bush.

The detainee the U.S. government has now agreed to release is Ayman Batarfi, 38, a Yemeni surgeon who reportedly treated al Qaida wounded at Tora Bora in Afghanistan. The government’s decision came as part of a case-by-case review ordered by President Barack Obama to empty the prison camps here by January 2010.

Batarfi had told a military review panel in 2005 that he was a humanitarian worker who found himself at the battle of Tora Bora in 2001 while Osama bin Laden was in the area, according to a Pentagon transcript. He said he did not respect the al Qaida leader, who he called "a coward."

Batarfi is the third detainee whose release has been ordered during the Obama administration. In addition to Boumediene and Batarfi, an Ethiopian-born British resident, Binyam Mohammed, was sent back to the U.K. a month into the Obama administration.

Along with five other GITMO detainees, Mohamed has filed lawsuits both in the U.S. and the U.K. In the U.S., he is suing a subsidiary of the Boeing company, Jeppesen Dataplan, for being complicit with the U.S. Central Intelligence Agency (CIA) in facilitating his rendition and torture. While the government invoked the so-called “state secrets privilege” to keep the case out of court, a federal appeals court has ruled that the suit should proceed.

His U.K. lawsuit charges that British intelligence services cooperated with U.S. authorities in his rendition and torture. The suit has caused a diplomatic furor in Britain, where the Foreign Secretary, David Miliband, intimated that evidence of British complicity had to be kept secret under threat from the U.S. to stop sharing intelligence with Britain if details were disclosed in court.

But the British High Court announced last week that it will reopen its judgment that details of the torture of the former Guantanamo Bay detainee must be kept secret.
Clive Stafford Smith, director of the legal charity Reprieve, one of Mohamed’s attorneys, told us, “It is long past time that this evidence was made public. How can it be that two governments that purport to uphold the rule of law be working together to cover up crimes committed against Binyam Mohamed?”

In the Batarfi case, a major factor in the decision of the Justice Department was a federal judge’s finding that the government improperly withheld important psychiatric records of a government witness who was used in a "significant" number of Guantanamo cases.

The judge said the government had censored parts of the records, showing that the witness, a fellow detainee, was being treated for a serious psychological problem. That witness provided information in the government's case for detaining Batarfi.

There are nearly 100 Yemenis among the approximately 240 Guantánamo captives. Bush administration officials never succeeded in negotiating a repatriation agreement for those who had been earlier approved for release.