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Uighurs in Albania


Friday, May. 12, 2006

Most Americans have never heard of the Uighurs and wouldn't be able to find Albania on a map. And if the Uighurs are obscure, then Uighurs in Albania are obscurity squared: an alien people in a faraway place.

But there are now five Uighurs in Albania, and how they ended up there deserves attention. It's a story of superpower politics, ethnic oppression, and the limits of the law. It highlights a problem that the United States has brought on itself: what to do with the hundreds of detainees who are currently held at Guantanamo Bay, Cuba, some of whom cannot be returned home.

China to Afghanistan to Cuba

The Uighurs are Turkic Muslims from the Xinjiang region in far western China. A group of them were in Afghanistan when war began in 2001 and were captured in the wake of the fighting, some by Pakistani bounty hunters. Twenty-two Uighurs were sent to Guantanamo, along with other detainees deemed the "worst of the worst."

By late 2003, having interviewed them extensively, U.S. officials concluded that most of the Uighur detainees were not a threat. Five of them, in fact, were found not to be "enemy combatants" at all, while ten more were deemed to be low-risk enough to merit release.

But while bringing the Uighurs to Cuba was easy, getting them off the island was not. They could not be sent to China, their country of citizenship, for fear of persecution. As part of the "fight against three evils" -- terrorism, religious extremism and separatism - the Chinese government has cracked down hard against its Uighur minority. Accusing them of plotting bombings and other sabotage, the Chinese government has incarcerated Uighur dissidents with little proof of actual involvement in violent acts.

Under international law, the only country that is clearly obliged to accept a person's entry is that person's country of citizenship. So while the U.S. could not return the Uighurs to China, it could not require any other country to take them either.

Instead, the U.S. had to wheedle: to appeal to other countries' humanitarian inclinations. But this is an age of unwanted refugees and, more importantly, of growing Chinese power. Few countries are willing to risk alienating Beijing by granting asylum to the Uighurs as a group . Although the U.S. approached a whole host of countries -- Finland, Sweden, Switzerland, Turkey and others - none agreed to accept them.

Uighurs in Court

At the same time as the U.S. government was trying to negotiate the Uighurs' resettlement, a case brought by two of the Uighurs was making its way through the federal courts. At issue in the case was whether the U.S. could hold the Uighurs indefinitely even after it found that they pose no threat to national security.

On the merits of their claim, District Judge James Robertson ruled unequivocally in favor of the Uighurs. "The detention of these petitioners has by now become indefinite," said Robertson in an opinion issued in December 2005. "This indefinite imprisonment at Guantanamo Bay is unlawful."

At a hearing prior to his ruling, Judge Robertson had suggested that he might order the Uighurs released temporarily into the United States. But his final ruling found, instead, that he lacked the legal authority to remedy the Uighurs' plight. "The question," he wrote, "is whether the law gives me the power to do what I believe justice requires. The answer, I believe, is no."

Winning in principle but losing in practice, the Uighurs filed an emergency appeal to the Supreme Court. It was a long-shot effort, given that the case was still pending in the lower courts, and in April the Supreme Court declined to consider the appeal. The case was due to be heard by a federal appellate court last Monday, but, just days in advance of the hearing, the two plaintiffs (and three others) were released to Albania.

The Albanian Solution?

While five Uighurs have left, ten other Uighurs cleared for release remain at Guantanamo. And the Uighurs are not the only detainees who cannot return home. There are three others -- a Russian, an Algerian and an Egyptian -- who have been found not to be "enemy combatants" yet who remain incarcerated.

Indeed, nearly 30 percent of the detainees at Guantanamo - about 141 men -- have been cleared to leave, but still remain. For many, the U.S. government knows that conditions are unsuitable at home. Dozens of detainees have filed motions seeking advance notice of any transfer, seeking to challenge their return on the ground that they might face torture.

So what are the options for detainees who cannot return home? There is the Albanian solution - find a country that, for humanitarian or other reasons, is willing to give them a safe haven. But that may not work in every case.

Indefinite detention on Guantanamo is no solution, particular for detainees who pose no threat to the U.S., who were simply in the wrong place at the wrong time, or who were unlucky enough to be arrested by corrupt Pakistanis. The U.S. disrupted their lives by bringing them to Guantanamo. At some point - soon - it may have to bring them back here.

Joanne Mariner is a human rights attorney. Her previous columns on Guantanamo, the detainee litigation, and the "war on terrorism" are available in FindLaw's archive.

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