White House and Congress can still do right by the Uighurs

Wednesday, October 21, 2009

THERE IS only one way for the White House and Congress to read the Supreme Court's decision on Tuesday to take up the case of Chinese Muslims wrongly imprisoned at the U.S. Naval Base at Guantanamo Bay, Cuba: Either provide real and meaningful freedom for the Uighurs now or risk that the justices will do it -- and possibly in a manner that could reach well beyond these cases.

The Bush administration determined -- in some cases as long as six years ago -- that the Uighurs were not America's enemies; a federal judge ordered all of them released last October. But some remain in captivity. Congress, with breathtaking cowardice and hypocrisy, has blocked any of these 17 detainees from being freed into the United States.

The administration has been working hard but has not yet been able to find suitable homes for all of the detainees. They cannot be returned to their Chinese homeland for fear of persecution. Four Uighurs are now living and working in Bermuda, and the island nation of Palau has signaled its intention of taking in 12 of the remaining detainees. Palau has declined to take in Arkin Mahmud, who suffers from serious mental health issues because of his detention and lengthy periods of solitary confinement. Arkin's brother, Bahtiyar Mahnut, has declined Palau's invitation in order to stay by his brother's side. Unless another country accepts the brothers, they could remain in custody indefinitely -- a prospect that is unconscionable and that no doubt informed the justices' decision to hear the matter.

The legal question before the justices is a difficult one: whether a U.S. federal judge has the power to order the release of detainees into the United States. Traditionally, only the executive and legislative branches have had the authority to admit foreigners. Judicial intervention in this area raises issues regarding separation of powers and could pose delicate questions about the judiciary's proper role in all manner of immigration matters.

But the moral and ethical imperatives are clear and compelling. The Uighurs find themselves subject to detention not because they tried to enter the country illegally but because they were snatched in Pakistan and Afghanistan after the United States' 2001 invasion of Afghanistan and forcibly taken to Guantanamo. The United States has complete control over the fate of these men and should take full responsibility in righting the situation. That should include narrowly crafted legislation that would allow Mr. Mahmud and Mr. Mahnut into the United States, where they could remain together and Mr. Mahmud could get the medical help he needs.

The Supreme Court will probably hear the Uighurs' case in February and is likely to render a decision by June. Lawmakers and the White House should craft a diplomatic and political remedy that makes that court decision unnecessary.

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