In Defense of Habeas Corpus

You have probably never heard of the Uighur population in northwestern China. Uighurs (pronounced wee-gur) are Muslim-Chinese more closely aligned, ethnically and geographically, to the Afghans and other Muslim communities in Central Asia than to their traditional Chinese countrymen. In the grand scheme of world politics, Uighurs are small-time players, known mostly for being persecuted and systematically transplanted from their resource-rich homes by ethnic Chinese.

In the midst of fighting the war on terror, the United States came across several Uighurs in Afghanistan. By some accounts, the Uighurs were in Afghanistan to train to fight against the Chinese. By others, the Uighurs were seeking a way out of Chinese persecution into a friendlier environment so they could send money back to their families. By no account were these Uighurs involved in Al Qaeda or any anti-American terrorist training. Still, nearly twenty Uighurs ended up in American military custody in Guantanamo Bay, having been sold for ransom by locals to American forces.

American intelligence knew early on that the Uighurs, like many of those initially imprisoned at Guantanamo, were of little or no value in the war on terror. When it came time for prisoners to have their status reviewed, a number of the Uighurs were declared No Longer Enemy Combatant (NLEC) by the military (a more accurate designation probably would have been Never Enemy Combatant in the First Place, but let’s not get hung up on semantics). The Uighurs, however, were never told of this designation of innocence and, instead of being released, remained behind bars at Guantanamo.

Beginning in the summer of 2005, a group of lawyers assumed representation of several of Guantanamo’s Uighurs without knowing any of this history. The first step was to file a writ of habeas corpus in federal court, asking the government to declare the charges against the Uighurs or release them. The government delayed. And delayed. Ultimately, the lawyers discovered that their clients had already been designated NLEC and immediately opened up a relentless campaign for release. The campaign was complicated because the government, to its credit, refused to send the Uighurs back to China for fear that they would be tortured there. Meanwhile, the Uighurs remained in prison as the government refused all requests for temporary or supervised release of these innocent individuals. The search for a country to take the innocent Uighurs finally ended a few months ago and now there is a very small population of Uighurs in Albania.

The Uighurs’ story is one of the importance of habeas corpus. Without lawyers making noise regarding the unjustified imprisonment of these individuals, it is likely that the Uighurs would have remained in prison even longer than the nearly five years they already spent at Guantanamo. Without the power to demand charges be brought, the lawyers would have been handcuffed, unable to force the government to end an indefinite and unjustified detention.

Last week, Congress passed the Military Commissions Act of 2006, a law directly aimed at legalizing many of the actions undertaken by the Bush administration in handling so-called enemy combatants – actions declared unconstitutional earlier this year by the Supreme Court. The law is a mixed bag. Although it does require American personnel to treat detainees in accordance with the Geneva Convention (read: no torture), it does away with many of the traditional procedural safeguards meant to ensure a fair trial and prevent the executive from running amok. One such safeguard that is done away with is the writ of habeas corpus.

Passage of the Military Commissions Act is undoubtedly a victory for the Bush administration – with congressional authority, the President stands on much firmer constitutional ground than he did when these practices were first reviewed by the Supreme Court. The law, in effect, puts executive action in this arena beyond the review of the courts. However, as the experience of the Uighurs at Guantanamo shows, sometimes the executive gets it wrong. Without the courts and the protection of habeas corpus, where is there to turn next time?