The Bush administration is clearly getting desperate: Monday, it sent the Solicitor General of the United States to federal court to try once again to justify its detention of 17 innocent Uighur detainees held for the past six years at Guantanamo Bay. The administration's top litigator, Greg Garre usually spends his time at the Supreme Court, but the administration dispatched its big gun to the DC Circuit courtroom to make its best possible case that no court in the land has the power to tell the Bush administration what to do. It will not go down in history as one of Garre's finest moments.
To take pity on the SG, Garre had a tough assignment as the lawyer for the Bush administration, which still adamantly refuses to admit that it might, once in a blue moon, be subject to judicial oversight. As backdrop: last month, a federal district court judge ordered that the government bring the Uighurs, a group of Central Asian Muslims hailing from western China, to the US, where they would be released into the American Uighur community until the rest of their status could be resolved. The Uighurs have languished for nearly seven years in Cuba because, even though they have been found not to be enemy combatants, everyone agrees, if they return to China, they will be persecuted.
Unfortunately, thanks to the Pentagon's description of the Uighurs as a threat to the public, the State Department can't find another country willing to take them, despite nearly four years of trying. As Judge Ricardo Urbina concluded last month, their only real option is to come to the US. But the Bush administration sees that order as a huge affront on its exercise of executive power and its desire to be free of judicial meddling. So it has argued that only the political branches of government have the authority to decide whether aliens can enter the country or not.
To make that case, Garre reached back to another paranoid, xenophobic era of American history: the 1950s, when the Communist Red Scare produced a body of law not unlike that of the war on terror. The government is relying on a 1952 decision known as Mezei v Shaughnessy to argue that it has the power to detain the Uighurs forever, even though they've never been charged with a crime, much less taken up armed combat against the US (even when they had the chance in Afghanistan). In 1950, a man named Ignatz Mezei found himself in a situation rather like the Uighurs. He was born on a boat in the straits of Gibraltar and came to the US in 1923, where he lived until 1948. On hearing the news that his mother in Romania was sick, he left the US and went to Hungary, where he tried to get a visa to travel to Romania. She died before he succeeded, so while in Hungary, Mezei procured a visa to the US and sailed to Ellis Island.
When he arrived, the government refused to let him in based on secret evidence that he was a Communist. Because he had no citizenship elsewhere, no other country would allow him in after the US determination, so he was essentially stuck at Ellis Island, a man without a country. Like the Uighurs, Mezei filed a writ of habeas corpus to challenge his detention. And as with the Uighurs, a lower court judge recognized the injustice of his situation and ordered him released. (He went to Buffalo.) But the Supreme Court eventually reviewed the case after the government argued that releasing Mezei constituted a threat to national security, because it would allow other enemies of the US to get spies onto American soil simply by depositing them at Ellis Island and refusing to take them back. In a 5-4 decision, the court came down on the side of the government and sent Mezei back to Ellis Island in a decision that was heavily criticized at the time and since then. (President Eisenhower eventually paroled Mezei after four years of imprisonment at Ellis Island, shortly before Ellis Island was closed, and he lived in the US for many years after.)
But you can hear echoes of the Uighur case in the elegant dissent from Barack Obama hero Justice Robert Jackson, who noted the difference between simply keeping someone out of the country and detaining him indefinitely. He wrote, "It is evident that confinement of respondent no longer can be justified as a step in the process of turning him back to the country whence he came. Confinement is no longer ancillary to exclusion
It is an end in itself." In the same dissent, Jackson said, "It is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone."
At the DC Circuit in the Uighur case, at least one of the judges hearing the arguments, Judith Rogers, seemed to channel Jackson. She wasn't buying the Mezei argument, and she spent a great deal of time sparring with Garre about whether the Uighurs could apply for asylum in the US and why the Department of Homeland Security wasn't involved in this case on the immigration front. Garre, who was clearly not having his best day, managed to elicit his only laughs when, in response to a question about whether Guantanamo is in fact a prison, he said, "We can debate whether any facility operated by the Department of Defense is a prison," suggesting that the government does not actually consider the Uighurs to be imprisoned.
Indeed, Garre went on to suggest that they had actually been "conditionally released" because they live in practically lush accommodations at the naval station, where they have separate quarters from the other detainees and "have access to DVDs and special libraries." And of course, he noted, they are entirely free to return to China, which Uighur lawyer Sabin Willett noted would be the equivalent of "putting a bullet to their heads." (Willett also told the court that it was hard to imagine that Guantanamo was not a prison given that when he meets with his clients, the military chains them to the floor.)
Garre also provoked Rogers' ire towards the end of the hearing when he offered, in response to a question from Randolph, that the men had been training in terrorist camps and would not in all likelihood be allowed into the US as refugees if they tried to go that route. Rogers cut him off with a surprisingly ferocious outburst, saying, "You can not make those representations here! Let's be very careful here before we taint people without evidence." She noted that the government had never challenged the Uighurs' legal briefs stating that they were innocent of those charges, and that when specifically asked by the federal court to provide evidence of their connection to terrorism or weapons training, the government failed to do so.
Rogers, though, may be in the minority on the panel. It seems clear that the Supreme Court is going to get a chance to revisit its opinion in Mezei and declare whether or not it really thinks the president has the power to detain innocent people forever and a day, provided it continues to "look" for somewhere else for them to go. As Willett said last week in an interview, the government's argument is basically that "as long as we try really hard to find [the Uighurs] somewhere to go, they can hold them indefinitely." As such, the case creates a judicial power problem because the Supreme Court has said that the detainees have the right to challenge their detention in federal court. But if those same courts can't order some of the detainees released, he asks, "What's the point?"