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Joanne Mariner

Leaving Guantanamo


Tuesday, June 16, 2009

If this were the Eighteenth Century, the Uighur detainees at Guantanamo would have been sent to Australia. Instead, four of them were just sent to Bermuda, and thirteen others await possible resettlement in Palau. Five were sent to Albania in 2006.

Members of an oppressed Turkic minority from Xinjaing province in western China, the Uighurs have been cleared to leave Guantanamo for some time, yet they cannot be returned home for fear of persecution. Last October, a federal judge ordered their release into the United States, finding that they were innocent of any connection to terrorism, and that the local Uighur community was eager to assist in their reintegration into society.

His release order was stayed on appeal, however, and later reversed. The Court of Appeals for the D.C. Circuit concluded that the federal courts lack power to order the release into the United States of any detainees held at Guantanamo, regardless of whether they are wrongly held.

A congressional backlash against President Obama's efforts to close Guantanamo seems to have persuaded the new administration not to try to resettle any detainees in the United States, at least not in the immediate future. The question now is, if this option is foreclosed, what are the alternatives and will they work?

Credible Fears of Persecution

The Uighurs are among an estimated 50 to 60 detainees at Guantanamo who cannot be returned to their home countries due to credible fears of persecution or ill-treatment. These men, from countries such as Algeria, Egypt, Libya, and Uzbekistan, all need to be admitted somewhere else if Guantanamo is to close.

The Uighurs at Guantanamo, seen as admiring of the United States, were widely understood to be the group of detainees that was most likely to be resettled on U.S. soil. Indeed, earlier this year, several newspapers reported that the administration was in the final stages of plans to bring several of the Uighur detainees here. The plans were shelved, however, when members of Congress raised sudden, surprisingly strong objections to the Uighurs' resettlement, and then large congressional majorities pressed forward with legislation to block detainees from being transferred to the United States on grounds that they presented a terrorist threat.

Until the four Uighurs were flown from Guantanamo Bay to Bermuda last Thursday, their prospects were looking bleak. The Chinese government, which deeply resents the nationalist stirrings of Uighurs in Xinjaing province, labels the Uighur detainees terrorists because they left China for Afghanistan, and has made it clear that it will retaliate against any country that accepts the men. The United States—both during the Bush administration and during the current government—had asked a number of foreign government to take the Uighurs, without success.

Although by all accounts the four Uighurs are very much enjoying their new island home, the move to Bermuda was not entirely smooth. According to press reports, the U.K. government was deeply upset that Bermuda, a self-governing British overseas territory, did not consult with London before agreeing to accept the Uighur detainees.

Even more worryingly has been the backlash in Bermuda itself, where the government's political opposition has tabled a no-confidence motion, claiming that the premier's decision to accept the men put the islanders at risk.

The Need for US Resettlement

The United States is currently finalizing negotiations with Palau, another tiny island nation, to reach a similar outcome for the remaining 13 Uighurs. But finding solutions for the Uighurs, though crucial, will not solve the resettlement problems of the other 40-some prisoners at Guantanamo who need to find another place to go. Paradoxically, since the Uighurs were the most likely candidates for resettlement in the United States, their resettlement elsewhere may even harm the prospects of the Libyans, Syrians, and others at Guantanamo.

Why is this so? Even though several European governments have expressed a willingness to accept detainees for resettlement, they would like to see the United States take some in first. While France recently accepted an Algerian former detainee for resettlement, and Italy has reportedly agreed to accept three others, most European countries are waiting for the U.S. to set an example.

"If none of the U.S. states are ready to take in Guantanamo inmates, then you will have to explain to the European public why the rules for Europe should be different from those in the U.S.," said German Interior Minister Wolfgang Schaeuble recently, voicing a common sentiment. European officials already fear that it will be politically difficult to convince their publics that the freed detainees are not dangerous. They know it will be doubly hard if the United States, by not accepting any detainees itself, encourages the perception that the men pose a risk.

Do as I say, not as I do, has never been the most persuasive of approaches. In the coming months, as the United States tries to resettle dozens more of the men at Guantanamo, its effectiveness will be sorely tested.

Joanne Mariner is a human rights attorney based in New York and Paris. Her columns for FindLaw are available in FindLaw's archive.

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