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Court Reverses Ruling Bringing 17 Detainees to U.S.

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Catherine Lotrionte
Asst Professor, Government and Foreign Service, Georgetown University
Wednesday, February 18, 2009; 2:30 PM

A federal appeals court this morning blocked the transfer to the United States of a small band of Chinese Muslims held at the U.S. military prison at Guantanamo Bay, Cuba.

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In a decision released this morning, the three-judge panel of the Court of Appeals for the D.C. Circuit reversed a lower court ruling that ordered the transfer. The 17 Chinese Muslims, all Uighurs, have been held at Guantanamo Bay since 2002.

Catherine Lotrionte, visiting assistant professor of Government and Foreign Service and associate director of the Institute for International Law and Politics at Georgetown University, was online Wednesday, Feb. 18, at 2:30 p.m. ET to discuss the ruling and its significance pertaining to a constitutional separation of powers.

A transcript follows.

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Catherine Lotrionte: Hi it is Catherine and I am looking forward to your questions. I wanted to give you a little background on myself. I am a professor at Georgetown University where I teach International Law and US National Security Law. Both my professional background and academic work and scholarship is in these areas of law.

I look forward to discussing with you all the recent court decision related to the 17 detainees at Guantanamo Bay.

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Washington, D.C.: Can you give us an idea about where these Uighurs live in China, and their alleged role in terrorist activities? Also, what do the Chinese think about their presence in Gitmo? Thanks.

Catherine Lotrionte: I am not sure exactly where in China these specific 17 detainees came from but there have been Uighur Muslins in the northwestern region of Xinjiang. But they were all captured in/near Afghanistan and had been training in al Qaeda training camps.

China has not made any official statements other than they have said they want these individuals back in China to question them further about their possible links to terrorists operating within China.

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Washington, D.C.: What does this mean for Barack Obama? I thought he was for closing up GITMO transferring the prisoners some place to be determined. What does this do to his position?

Catherine Lotrionte: President Obama can still stick to his plan for closing the prison. What the court of appeals ruled on was the fact that the lower district court did not have the authority to order the detainees into the United States. Rather the "political branches" (Congress and the Executive) only had that authority. So now it is up to the President (and possibly the Congress) to decide whether they want to order these detainees into the United States.

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Annapolis, Md.: Who is asking for the transfer -- lawyers for the detainees?

And who is seeking to block it? Was it the previous administration? Is it possible that the Obama administration will drop their objection to the transfer?

Catherine Lotrionte: Yes. The lawyers for the detainees have argued that if these 17 detainees were sent back to China they would be tortured by the Chinese government. Under international law if the U.S. believes this claim the U.S. would not be able to legally transfer them to China. One option is to being these detainees into the United States. There are some people within the United States (and Congress) who have argued that to bring these detainees into the U.S. to be free would be potentially dangerous to others living within the United States because individuals did receive training at al Qaeda training camps and are considered potentially dangerous.

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Arlington, Va.: Another dark day for the rule of law, eh? On what possible grounds can they be holding those poor guys for so long without a trial? So much for Obama changing our torture and abuses.

Catherine Lotrionte: Really this court decision doesn't fall on the shoulders of the president. The court is only saying that the lower court did not have the authority to order them into the U.S. President Obama still has the authority to order them into the United States.

These detainees are not facing any charges for any crimes. The holdup on releasing them back to their own country is that it is believed that China may torture these people if they are returned to their own country. The U.S. is forbidden to transfer them under these circumstances under international law. So there really are no legal grounds for holding these detainees once it was determined that they had not committed any crimes that they could be tried for.

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Washington, D.C.: If these people are no longer considered "enemy combatants" then how can we hold them anywhere?

What do we do with other foreigners who can't go home -- "men without a country?"

Catherine Lotrionte: The U.S. is in the process of trying to release these detainees from custody. The dilemma is that under international law the U.S. cannot release them to China or any other country that will likely torture these people. Their lawyers have argued that China (their home country) will torture them. Now the U.S. is stuck trying to find a country that will take these individuals, a country that will not torture them.

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Randallstown, Md.: Is not the U.S. doing these 17 suspected Islamic terrorists a favor by not deporting them back to China -- their place of birth and citizenship?

Do you agree with today's court decision that the judicial branch does not have the authority to let foreigners into this country?

Catherine Lotrionte: The U.S. is obligated under international law not to return these people to China (their home country) because their lawyers have claimed that China will torture these people. And the U.S. believes that the Chinese will likely torture them.

The decision was right based on U.S. constitutional separation of powers. The political branches and not the courts decision issues related to who does and does not get to immigrate into the U.S. Now it is time for those two branches (Congress and the president) to make a decision about these individuals. Will they order that these detainees can come to the United States and live as free men.

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Arlington, Va.: Do we know for sure they were training in al Qaeda camps? I thought the news program I saw the other week (60 Minutes? Frontline?) basically said they were just innocent guys in the wrong place at the wrong time turned in by bounty hunters.

Catherine Lotrionte: Always when relying on third parties there is some uncertainty that will exist about the true facts. However, the U.S. believed those who provided these individuals over to the U.S. authorities that these individuals had been training in al Qaeda training camps. So, you can say, U.S. intelligence believes these men to have been training in these camps.

I suppose we may never know with 100 percent certainty.

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Detroit, Mich.: Seems like a bit of a sticky situation. We could send them to China, but we don't want to send them anywhere they could be tortured.

It is equally hard to imagine we could just release them on the streets of the U.S.

Catherine Lotrionte: Absolutely. Tough decision either way. If they have been trained using terrorist tactics and they were willing to use terrorist tactics against the Chinese regime do we really want these people in the United States even if their goal was not to attack the U.S. or U.S. troops but their own government.

And what will the U.S. need to do to convince some country to take these individuals. A country that will not torture them.

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Tampa, Fla.: Isn't ETIM recognized as a terrorist group by the U.S? Wouldn't it be against international law to give safe haven to militant members of a terrorist group, even if their current professed enemy is not the U.S.?

Catherine Lotrionte: I don't believe the U.S. has declared these individuals to be part of a U.S. recognized terrorist group. It would really depend upon the full facts to access the legal issues about allowing certain groups to stay within the U.S. It is not that it would be necessarily illegal under international law but IF the U.S. was protecting, harboring terrorists who had attacked another state then the U.S. could be opening itself up to a self-defense justification by that other state in coming after the U.S. (like the U.S. argued with respect to the Taliban in Afghanistan). But that is a BIG IF because I don't believe these individuals have been declared to be members of a terrorist group.

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Dunn Loring, Va.: Whose reasoning is more persuasive regarding if GITMO is subject to constitutional protections: Judge Randolph's citations to two congressional acts, and Justice Kennedy's "excise of control" standard he made up in Boumediene?

Catherine Lotrionte: Not sure depending on what you mean by persuasive. Bottom line -- the Boumediene decision is the law of the land now. And I believe it will have a great impact -- for good or ill.

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Boonsboro, Md.: Just a contrary position to the usual posters on these chats: Anybody that thinks bringing these people into the U.S. is a good idea should have their head examined. They were at al Qaeda camps, not Girl Scout camps.

Catherine Lotrionte: Good point.

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Take China at their word: Why can't we just ask China to promise not to torture these guys, and send them home? I'm sure China will say they don't condone torture.

Catherine Lotrionte: Well. Under international law and U.S. domestic law, the U.S. could get written assurances from the Chinese that they will not torture these individuals. Under the law there is not even a requirement that China agrees to give up torture altogether but just that they will not torture these individuals if the U.S. gives them over. However, based upon the number of court cases and allegations by individuals that the U.S. handed over to other countries in the War on Terror and who were tortured even after giving the U.S. those assurances most people believe that China would torture these individuals. So the U.S.'s. actions would be seen as fake and disingenuous.

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Baltimore, Md.: If we aren't "holding them" for any reason, how and where are they being "housed?" I'm assuming that they have asked not to be returned to China?

Catherine Lotrionte: Yes their lawyers have asked for them not to be sent to China.

They are still at GITMO but in a facility that is nicer than where the other prisoners are still being kept.

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Arlington, Va.: What judges comprised the panel in this case? The D.C. Circuit seems to consistently issue decisions adverse to the detainees (only, of course, to eventually be smacked down by the Supreme Court). Are any of the usual suspects involved here?

Thanks for doing this chat.

Catherine Lotrionte: Not the usual suspects this time. And this decision really wasn't about the rights of the detainees but about the U.S. constitutional separation of powers between the three branches of the government.

You're welcome. An interesting case.

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Alexandria, Va.: So is this ruling today likely to be taken up by the higher court, the Supreme Court, and it really won't matter what was decided for today? How long would that process take?

Catherine Lotrionte: Not sure if the parties have decided to appeal yet. And no way to know if the Supreme Court would even take it up. The dilemma that the detainees are in is novel (arguing for the Supreme Court likely to take it up) however the constitutional separation of powers issue is not so novel and therefore the Court may not take it up for a decision.

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Seattle, Wash.: How do we know that we have not been torturing these people too? Can we actually believe our own government on this issue, since for the past eight years they committed International war crimes repeatedly?

Catherine Lotrionte: Valid question. I suppose the only way to know for certain is when and if the detainees talk publicly about their treatment while in U.S. custody once they are released.

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Arnold, Md.: If I were a Muslim in China, I could probably be convinced that I needed to join a jihad somewhere. It's not like they have freedom of religion or even a free press.

I'd be interested to know how they feel about the U.S. I wouldn't have a problem with them living here if they didn't have a problem with us.

Catherine Lotrionte: Not sure that they have said anything publicly about their feelings towards the U.S. specifically. I imagine that while in custody under questioning they answered that question. What does seem clear was that they were training to fight against their own regime and not the U.S.

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Arlington, Va.: You seem a lot more sympathetic to the government than I am inclined to be. We are the ones who imprisoned these people without charges for several years. We have a moral responsibility to do the right thing. If they have committed no crime then we cannot continue imprisoning them based on what you speculate they MIGHT do but have apparently shown no inclination to actually do, which is somehow harm the USA. We sent their comrades to Albania where they are quite isolated. If the Uighur community in the U.S. is prepared to house them and integrate them that seems like the best possible solution, no?

Catherine Lotrionte: Good point. My position is that under international law the U.S. in now in a tough spot with respect to these particular individuals. And I am not sure what size of a Uighur community there is here for them. Will they assimilate? Maybe. Will they put their training behind them and change their lives. Maybe. This issue is one that is larger than just them. It is also part of a larger immigration debate within the U.S. government. But your point is a good one.

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Arlington, Va.: Well, isn't it merely ALLEGED that these men were trained at these camps? No one has proven that, have they? Whatever happened to the rule of law, standards of evidence, etc.?

Catherine Lotrionte: According to the USG, based on intelligence information these individuals were at training camps.

During times of war there is not the same rules of evidence that is involved in a criminal civilian courts. Under international law the law of armed conflict was not meant to be based on the same evidentiary findings that are required when you are charging someone in a criminal civilian court. What has been determined while they were in custody is that the intelligence shows that they were not training to harm the U.S. and therefore the U.S. has no legal grounds to charge them or hold them if they pose no harm to the U.S.

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Annapolis, Md.: So we can't send them home to China because they might be tortured, but we can't harbor them in the U.S. because they might be terrorists?

Can we just send them to the Hague and let them figure it out?

Catherine Lotrionte: Actually, we can let them into the United States. Even if they are members of a violate group the U.S. can allow them in. This only may complicate our relations (politically) with the country (China) that wants them back.

What is illegal is for the U.S. to send them back China if we believe that they will be torture.

Sending them to the Hague is a valid option and one that I have been talking about and trying to get an op-ed written about but no one is picking it up for publication.

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Mount Rainier, Md.: Did I miss something? Aren't U.S. military bases overseas considered sovereign U.S. territory? Embassies too? So how can a judge ruling on detainees held at a U.S. military installation be bringing them into sovereign territory if they are already being held on sovereign territory?

Catherine Lotrionte: There is a difference between de jure and de facto sovereignty under international law. Guantanamo Bay, Cuba (the U.S. military base) does not possess the same status as the territory of the United States.

But the appeals court ruling said that the lower court does not have this authority anyway -- it is the authority of the other two branches to determine who gets to immigrate into the U.S. Clearly, the individuals do not want to stay at a military prison but they want to be free in the United States.

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Washington, D.C..: Two key corrections to your first response, which makes it sounds as if these guys were in the middle of fighting the U.S. when they were captured.

1. They were not captured in Afghanistan, but taken into custody by Pakistani authorities in Pakistan.

2. They were not in an al Qaeda training camp, but an Uighur training camp (associated with the "Eastern Turkistan Islamic Movement"). On page two of the opinion, the court notes that it had previously found no evidence of a connection between the Eastern Turkistan Islamic Movement and al Qaeda. The U.S. only labeled their organization among those considered a terrorist organization, three years AFTER their imprisonment. Even the U.S. does not contend they were associated with al Qaeda (which is why they are designated non-enemy combatants).

It seems the D.C. Circuit panel has fallen back on the view that because these men are at Guantanamo, and Guantanamo is outside the U.S., they have no rights. Wasn't that the previous position of this court and weren't they overruled (repeatedly), but the Supreme Court on that very point already?

Catherine Lotrionte: These individuals were provided over into U.S. custody by the Pakistani intelligence services. They were training at terrorist training camps and learning terrorist tactics. There have been links found between al Qaeda and other groups like those fighting the Chinese regime. But there has been no factual determination made by anyone on whether these particular individuals had links to al Qaeda. This is exactly why China wants to question them more.

The important point about the court decision is that the court DID NOT rule on the issue of the rights of these individuals. It only ruled that the executive or legislative branch of the USG decides who gets to live within the U.S. These men do have many rights as the Supreme Court has clearly ruled on. That does not mean they have the right to live within the U.S. until the political branches of the USG (not the courts) decide they can live here.

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Arlington, Va.: I'm not sure I understand the court's argument. How is this about separation of powers? Are we not holding these men without charge? How else are they to gain relief if not through the courts?

Catherine Lotrionte: There is no plan to charge these individuals for any crimes. They are only being held until there is a place that the U.S. can release them to. Under international law, at the end of hostilities or when prisoners are determined not to be a threat they can be repatriated to their own country. But in this case under international law they can't be sent back to China. The U.S. would be able to legally release them anywhere that would take them as long as that country won't torture them. No country is jumping up to accept these people.

The court clearly stated that the U.S. president or Congress can decide to bring these people into the U.S. to live here as free men. They would be in the U.S. as free people. They are not going to be charged before any court in the U.S.

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Philadelphia, Pa.: What are the physical differences in where these prisoners are held? Are there worries they can escape? Are there many escapes from these type facilities? If this is a worry, wouldn't it be better to search for them on American soil than if they slip into Cuba?

Catherine Lotrionte: It has been reported that where they are staying are in much nicer facilities then when they were with the general prison population. The base is very secure so don't think there is much chance of escape. No reported escapes so far.

The U.S. is not interested in searching for them or capturing them because they are not going to be tried for anything. In fact, the discussion about bringing them into the U.S. is about letting them walk free in the United States.

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Washington, D.C.: The Kiyemba decision is an utter joke; it constitutes a judicial approval of slavery under false pretenses.

Catherine Lotrionte: Well, the court is recognizing the limitations of the courts' authority. It is saying that the political branches need to decide this one. But if the political branches sit on this and do nothing then you are right -- it would look like the U.S is holding individuals with no intention of bringing them to trial.

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Washington DC: Professor Lotrionte -- I am counsel for these men. Contrary to your very first comment, it is not true that these men were ever in an al Qaeda training camp. The government has never accused them of being in an al Qaeda training camp. The D.C. Circuit vacated the "enemy combatant" classification of several men specifically because there is zero evidence that they were in any way associated with our enemies. Please get the facts right.

Catherine Lotrionte: There have been a number of statements made by government personnel that they were identified as people "at training camps" and that they had been trained on the use of "weapons" and other "tactics."

Correct they are not "enemy combatants" because as the USG has stated there is no evidence that they were intending to harm U.S. troops or the U.S., as I stated.

While the USG has determined that these individuals can be released the USG has not stated that they were wrongfully captured and detained or that these individuals are as one of the commentators said, "Girl Scouts."

Clearly, if the U.S. is not going to try them and if they have been determined to be of no threat to the U.S. then they need to be released. International law requires that the U.S. releases them. Under the law, they can't be released to China but the law does not mandate that they are released within the U.S. That is exactly why the court said it was a political question and not a question of law.

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Catherine Lotrionte: The camp that these individuals were training at is considered a "terrorist training camp." The camp has specifically been identified as an "ETIM training camp." ETIM is recognized as a terrorist group. However, the camp was not one of the "al Qaeda training" camps. Both camps (al Qaeda and ETIM) have similar training with similar tactics and weapons being used.

The recent court decision however was not about the nature of these "terrorist training camps" or the rights of these individuals. Rather it was about the authority of the U.S. courts versus the political branches of the U.S. government and which of the branches has the jurisdiction to make decisions about who has the legal right to live in the United States.

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Catherine Lotrionte: Thank you for all of your questions and comments. They were all very good. I look forward to another opportunity to chat with you.

Regards,

Prof. Lotrionte

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