The Meaning of Freedom

Tuesday, September 29, 2009

MORE THAN one year after it decided that detainees at the U.S. Naval Base in Guantanamo Bay, Cuba, had a right to challenge their detentions in federal courts, the Supreme Court is being asked to deal with the latest controversy: Do federal judges have the power to order detainees released into the United States?

The question is far from academic, as illustrated poignantly by the case of brothers Bahtiyar Mahnut and Arkin Mahmud. As reported by The Post's Del Quentin Wilber, the brothers are Uighurs, Chinese Muslims who face oppression, intimidation and often worse treatment in their homeland because of their religion. In 2001, Bahtiyar traveled to Afghanistan, where he bunked down with other Uighurs and received rudimentary arms training. At the behest of his mother, Arkin went to Afghanistan in search of his younger brother. Both men were captured after the U.S. invasion of Afghanistan and have been held in Guantanamo since 2002. The Bush administration years ago conceded that they were not enemy combatants and that they should be freed. But the men cannot be returned to China for fear they will be tortured.

It has been nearly one year since a federal judge in Washington ordered the release of the brothers and some 15 other Uighur detainees into the United States, citing this country's failure to find third countries willing to take them. An appeals court reversed the ruling and concluded that only the legislature and the executive had the power to allow the men into the country.

On Tuesday, the justices are being asked to take up this case to definitely answer the question. They should do so, despite significant advances during the past few months in finding new homes for the Uighurs.

Much has been made of the success of detainees in challenging their incarceration in federal courts. Of the 38 habeas corpus cases adjudicated to date, detainees have prevailed in 30. Yet 20 men who've been ordered released by federal judges remain behind Guantanamo's wire because the United States has been unable to find suitable homes for them. The island nation of Palau recently announced that it would be willing to take 12 of the remaining Chinese Muslims at Guantanamo -- all but Arkin Mahmud, who since his detention and prolonged solitary confinement at the naval base has suffered from serious mental health problems. Bahtiyar Mahnut has turned down a chance at freedom in Palau so he can stay with his brother. Because Congress has essentially forbidden the men from entering this country, the brothers could face indefinite detention if no other country comes forward. This prospect is unconscionable.

Congress could rectify this injustice by crafting a narrow exception to allow the brothers into this country, where there is a sizable Uighur community and where Arkin could get the kind of medical treatment he needs. In the meantime, the justices should take up the case to determine how much power federal judges have to deliver real and meaningful freedom.

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