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International

Nowhere to go

10 November 2008

A US Supreme Court decision to order the release of seventeen Chinese Muslims raises the possibility that David Hicks might one day be an innocent man, writes Nicola McGarrity. But where does it leave the seventeen men?



ON 7 OCTOBER 2008, the US District Court for the District of Columbia made history. In Kiyemba v Bush, the Court ordered the release of seventeen Chinese Muslims, or Uighurs, from Guantanamo Bay into the United States. For the detainees still held at Guantanamo Bay – around 250 men, at last count – this case provides a glimmer of hope that the US courts may order their release as well.

The Uighurs, from the Xinjiang Province in the Peoples’ Republic of China, had been detained in Guantanamo Bay since they were arrested in Afghanistan and Pakistan in 2001. Their detention was controversial from the start. They claimed to have been caught up in the conflict in Afghanistan by mistake, after fleeing from Chinese oppression – a claim backed up by human rights organisations. They reported that China was conducting a “crushing campaign of religious repression” against Uighurs in the aftermath of the September 11 bombings, ranging from vetting imams and closing mosques to forcing women to have abortions, taking away land and detaining and executing thousands of people every year.

The US government rejected the claims made by the Uighur men. Classified as “enemy combatants,” they were detained at Guantanamo Bay. The government’s logic was that (a) they were affiliated with the East Turkestan Islamic Movement, or ETIM, (b) ETIM was associated with Al Qa’ida and the Taliban; and, (c) ETIM is engaged in hostilities against the United States and its coalition partners.

Earlier this year, in Parhat v Gates, the Court of Appeals for the District of Columbia heard a challenge by one Uighur man to his classification as an enemy combatant. The Court held that because there was insufficient evidence for this classification it was invalid. In a decision strongly critical of the US government, the Court said: “Lewis Carroll notwithstanding, the fact the government has ‘said it thrice’ does not make an allegation true.” The Court ordered that the men be released, transferred or re-classified.

The government accepted the decision and the other detained Uighur men were also cleared for release or transfer from Guantanamo Bay. But by October they were still at Guantanamo Bay. Why? The answer, according to the government, was simple – there was nowhere for them to go.

For humanitarian reasons, the Uighur men could not be returned to their home country. According to Amnesty International, Uighurs suspected of “separatist” or “terrorist” activities would be at risk of gross human rights violations if they were returned to China – with the likelihood of unfair trials and torture and the possibility of execution. And no other country would accept the Uighur men, fearing possible repercussions from China. Even the United States, which arguably had a moral (if not a legal) responsibility to repatriate the men, refused to take them. The government said that the men were “dangerous” because they had received firearms training in Afghanistan.

This is where Kiyemba v Bush came in. The case revolved around the respective powers of the political and judicial branches of government. The Uighur men sought an order from the Court that they be released from Guantanamo Bay and allowed to enter the United States. The US government responded that it is for the political branch of government alone to decide who is allowed into the United States.

The Court accepted that immigration decisions should usually be made by the political branch. But it said the circumstances of the case before it were “exceptional.” The Court noted that the US Court of Appeals had held, and the government accepted, that the men are not enemy combatants, yet the men were being held in indefinite detention in Guantanamo Bay in clear violation of the United States Constitution. The men had not gone voluntarily to Guantanamo Bay (as had been the case in previous cases before the US courts) – they were forcibly taken there by US authorities on what has since turned out to be a false basis. On the basis that “separation-of-powers concerns do not trump the very principle upon which [the United States] was founded, the inalienable right to liberty,” the Court ordered the release of the seventeen men.

You would be forgiven for thinking that this is the end of the story. But almost a month after the decision was handed down, the Uighur men are still in detention at Guantanamo Bay. The orders of the District Court have been stayed pending an appeal by the US government to the Court of Appeals, which is due to be heard on 24 November 2008.

Ultimately, the question of how to deal with the remaining Guantanamo Bay detainees will be one for the new US president, Barack Obama, rather than the US courts. By the time a decision is handed down on the appeal, Obama will have taken his place in the White House. Obama is committed to shutting down Guantanamo Bay and trying the detainees in the United States, although no announcement has yet been made as to when or how this will occur. This delay is not surprising given the quagmire of legal and political issues that Obama’s commitment raises. Not least of these issues is the problem of what to do with people who are acquitted of terrorism-related offences by the US courts or are released after serving a sentence of imprisonment. Many of them, like the Uighurs, will simply have nowhere else to go.


THE DISTRICT COURT’S decision in Kiyemba v Bush marks the latest stage in a struggle between the US government and the courts for control of the Guantanamo Bay detainees – in particular, over whether detainees are entitled to seek a writ of “habeas corpus” in the courts. Literally, habeas corpus means “to deliver the body”; its legal effect is to allow a person to challenge the lawfulness of their detention before the courts.

In a 2004 case, Rasul v Bush, the Supreme Court overturned the prevailing view that the detainees were stuck in a legal black hole when it found that the federal habeas corpus legislation allowed detainees to challenge their detention. In response, the government steered through Congress legislation that purported to foreclose debate on the lawfulness of detention in Guantanamo Bay.

The Detainee Treatment Act 2005 removed the right to habeas corpus for any enemy combatant held in United States custody. In place of habeas corpus, detainees were granted a limited right to challenge their classification as enemy combatants by the Combatant Status Review Tribunal in the Court of Appeals for the District of Columbia. It is this limited right that was exercised in Parhat v Gates. Because the Detainee Treatment Act applied retrospectively, proceedings that had already been filed by the detained Uighurs for writs of habeas corpus were effectively dismissed.

So what changed between 2005 and 2008 to make the District Court’s decision in Kiyemba v Bush possible?

In June 2008, the United States Supreme Court handed down its decision in Boumediene v Bush. The Court found that – contrary to the Detainee Treatment Act – detainees at Guantanamo Bay do have a constitutional right to seek writs of habeas corpus. The Constitution applies to detainees in Guantanamo Bay because the United States exercises exclusive jurisdiction and control over this area. The US government cannot simply “switch the Constitution on or off at will.” The Court found that the limited right to review under the Detainee Treatment Act is not an adequate substitute for a writ of habeas corpus, in particular, because it does not allow for the release of a detainee. The provisions of the Act eliminating the right to habeas corpus for Guantanamo Bay detainees were therefore unconstitutional.

The decision was a courageous one. The Court recognised the rights of individuals to a fair hearing before the United States courts, and opened the door to further debate about the lawfulness of detention at Guantanamo Bay and the military commission regime.


KIYEMBA v BUSH vividly demonstrates the possibilities raised by the Supreme Court’s decision in Boumediene v Bush. But the Supreme Court’s decision is not only significant for those still detained in Guantanamo Bay and seeking release. It also raises the possibility of another chapter in the story of David Hicks, the only Australian to be tried and found guilty under the United States military commission system. The case opens a door for Hicks to challenge the lawfulness of his detention and trial.

After more than five years in detention at Guantanamo Bay, Hicks pleaded guilty to a charge of providing material support for terrorism in March 2007. He was sentenced to seven years imprisonment. All but nine months of this was suspended.

The United States military commission system has been the subject of intense criticism since its establishment by executive order in 2001. The original system was struck down by the Supreme Court in June 2006 as being inconsistent with the basic requirements of a fair trial in the Geneva Conventions. The “reformed’ system under which Hicks was tried contains many of the same failings – limited opportunities for detainees to find and present evidence, an absence of legal representation, the exclusion of detainees from certain evidence and the admissibility of hearsay evidence.

The Supreme Court’s decision in Boumediene v Bush does not make any specific findings about the lawfulness of the military commission system. For this reason, the chief prosecutor of the military commissions, Colonel Larry Morris, attempted to downplay the practical significance of the decision for Hicks. In June this year, Colonel Morris stated that “even those most sympathetic to [Hicks] and most critical of [the military commission system]” would have a “hard time” making the case that this system was unlawful.

It is certainly too early to say what conclusion a United States court might reach about the lawfulness of the military commission system. But the District Court’s decision in Kiyemba v Bush shows that challenges to the lawfulness of detention in Guantanamo Bay (and, by analogy, challenges to the lawfulness of the military commission system) are not simply a pipe-dream.

There are even some indications in the Supreme Court’s decision in Boumediene v Bush that it would be willing to entertain a challenge to the military commission system. The Court there expressed concerns about the deficiencies of the system, including the “closed and accusatorial” nature of the hearing process, which creates a “considerable risk of error in the tribunal’s findings of fact,” and the prohibition on new, and possibly critical, evidence being introduced during the appeals process.

A successful challenge to the constitutionality of the military commission system could render Hicks’ guilty plea and conviction invalid. A guilty plea and conviction cannot be sustained if the system under which they were made is struck down. This, in turn, would raise a quagmire of legal questions about the validity of Hicks’ imprisonment in Guantanamo Bay and subsequently in Australia, the validity of the “control order” that still constrains his freedom, and whether it may be possible for him to sue the US or Australian governments for false imprisonment.

Let us be very clear – this matter does not depend upon one’s approval or otherwise of Hicks’ conduct in Afghanistan. Hicks has, among other things, admitted that he joined the Taliban and fought to ensure the end of “Western Jewish domination.” But to become entangled in a debate over Hicks’ status as hero or villain is to sidestep the real question about the legitimacy of the detention and trial of Hicks and the other Guantanamo Bay detainees. It is not enough to simply say, as the attorney general, Phillip Ruddock, did in 2006: “I mean, the fact is that what we’re talking about is a response to some of the most dastardly acts that we have ever seen.”

Even the worst criminals have the right to a fair trial and to a determination by the courts, rather than the executive, that a particular trial process satisfies that right. This is what it means to live under the rule of law. •

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