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News Update
17-08-05, 15:47
Men Held at Guantánamo Months After Deemed Innocent

by Kari Lydersen (bio)

After determining two members of a Chinese ethnic minority were never “enemy combatants,” Washington refuses to set them free, possibly as a favor to China as it wages a campaign against the men’s people back home.

Aug 17 - In late March, the US government declared that two detainees held at the Guantánamo detention center -- A'del Abdu Al-Hakim and Abu Bakker Qassim -- are not enemy combatants and hence are under no suspicion of any activities related to terrorism. But no one told the men, US courts, their family or their lawyers, and months later they are still in detention, held in harsh conditions without telephone access and sometimes chained to the floor, according to their lawyers.

Lawyers working pro bono with the Center for Constitutional Rights only found out about the March 26 decision clearing the two men of suspicion on July 30, and quickly began working to secure their release. In a hearing before US District Court Judge James Robertson on August 1, attorneys asked that the men be released from the detention facilities immediately and relocated to more humane living conditions.

The lawyers are not, however, asking that the men be returned to China, where they are from. Al-Hakim and Qassim are ethnic Uighurs, a mostly-Muslim group of about 12 million living in the sparsely populated northwest part of China. For the past few decades they have suffered intense persecution from the Chinese government, which bans teaching their language and clamps down on expressions of Uighur political power and culture, including the lively dances and music for which they are famous.

The US Department of Justice argued that the two cannot be returned to China, since they would face persecution including possible torture and execution there, and it does not want to release them in the US or even into a civilian part of the Guantánamo Naval Base.

Tina Monshipour Foster, an attorney with the Center for Constitutional Rights, speculated that the government is refusing their release because it is afraid they would petition for asylum in the US.

Their lawyers argue that the men should at least be allowed to live and work in civilian parts of the Guantánamo facility, and that relocation efforts are extraordinarily hampered by the denial of phone and visitation access for Al-Hakim and Qassim. The lawyers are also demanding the government turn over the Combatant Status Review Tribunal findings which cleared the men; a request which has so far been refused.

"Just because you put them in this position doesn't mean you can keep them in prison," said Foster. "The government has held them here for almost four years knowing they're not enemy combatants. And they don't seem in a hurry to get them out of Guantánamo."

During the August 1 hearing, attorney Sabin Willett testified that during a July 14 visit, he found his client "chained to the floor… sitting in a box that had no windows."

"As far as the guards were concerned," said Willett, "he has no name. They refer to him by his number."

The government said the detainees are only shackled to the floor when meeting with lawyers and visitors, since other detainees have lunged at and attacked their attorneys during meetings. But since the government has found there is no reason to hold the men, their attorneys argue, it is illogical that they should still be treated like prisoners.

"They're not soldiers, they're not criminals, they're just Uighur people," said Willett during the August 1 hearing.

Approximately two dozen Uighurs now being held in Guantánamo were picked up in 2002 in Afghanistan, where some Uighurs have received military training and fought alongside the Taliban and Al-Qaeda as part of the "East Turkestan" movement, deemed a terrorist organization by the Chinese and US governments. But interviews with unnamed Uighurs in Guantánamo, recently declassified by the government, said they ended up in the country on their way to Turkey. Media reports have described Qassim and Al-Hakim as in the wrong place at the wrong time.

"The fact that the US government declared them not enemy combatants really means a lot since the definition of an enemy combatant can be so broad, they could probably call me one," said Foster. "They literally had nothing on these guys."

The lawyers say access to their clients has been extremely limited by bureaucratic procedures and by the government's reluctance to facilitate the use of Uighur interpreters. Among other things they want the United Nations High Commissioner for Refugees to be able to visit the men and process their applications for international refugee status, which cannot happen under the current detention regulations.

Counsel for the US Department of Justice, Terry Henry, countered that the government is doing its best to relocate the men, but that they cannot be released from detention until the process is complete.

"There has been a diplomatic process under way to find a suitable country for transfer of these individuals consistent with the United States policy not to transfer people to countries where it's more likely than not that they will be tortured," he said during the August 1 hearing. Norway and other countries have reportedly refused to accept the Uighurs, perhaps to avoid angering China.

Foster said the government has declined an offer from the Center for Constitutional Rights to help find a country to accept the men. "They claim that they're working on it, but we've yet to find any embassy or other government that has been contacted by them," she said. "The idea that the most powerful country in the world can't find a place for these individuals to stay is ridiculous."

If nothing else, the lawyers argue, asylum in the US should be an option. There is a significant Uighur expatriate population in the US, and the Uighur American Association has even received funds from the US government-funded National Endowment for Democracy.

Earlier this month, Lieutenant Commander Alvin "Flex" Plexico admitted to Newsday that of the 38 Guantánamo detainees that have been cleared by the Combatant Status Review Tribunals, 12 still languish at the prison.

Foster said the legal team is researching the cases of the other Uighurs at Guantánamo, and a supplemental brief the legal team filed after the August 1 hearing says that at least two are held in harsher conditions than Al-Hakim and Qassim are. The outcome of their case is likely to set an example for how the remaining Uighurs and other prisoners who cannot be sent back to home countries are dealt with.