US judge eyes moving 2 Guantanamo detainees
Could order them brought to him

By Charles Savage, Globe Staff | August 2, 2005

WASHINGTON -- A federal judge yesterday said that he may order the Bush administration to bring two cleared but stranded Guantanamo Bay detainees to his courtroom in the nation's capital, an extraordinary proposal that could enable the men to leave the tight restrictions of the military prison in Cuba.

Alternatively, District Judge James Robertson said yesterday that he is considering an order that would force the government to move them into a special facility for migrants on the Navy base, where the US houses intercepted rafters from Cuba and Haiti who have applied for asylum.

Though he's unlikely to decide for several weeks, Robertson could become the first federal judge to order the military to discharge a detainee from the prison, an unprecedented event at Guantanamo. The Supreme Court ruled last year that detainees can sue the government to challenge their designation as ''enemy combatants," but all cases have been stalled until an appeals court decides how to handle them.

But the detainees before Robertson -- Abu Bakker Qassim, 36, and A'del Abdu Al-Hakim, 31, both Muslims and ethnic Uighurs from China -- are different from the other 500 Guantanamo prisoners. A military tribunal has found the men were in the wrong place at the wrong time and ordered them released. But the men are languishing at the prison because the United States cannot send them back to China, which has a history of persecuting Muslims, and no other country will take them.

Sabin Willett, a Boston-based lawyer who volunteered to aid the men, asked Robertson to allow his clients to move from the prison to the civilian portion of Guantanamo, a vast Navy base that has housing for some 8,000 troops and their families as well as restaurants and a shopping center. Willett also suggested the men could be released under supervision into the small community of American Uighurs.

In any case, he argued, the US government has no legal justification to continue their detention because the military itself acknowledged that they are not combatants.

''They are not soldiers. They are not criminals. They are just Uighur people," Willett said. ''There might not be a more pro-US Muslim group in the world because the Uighurs have traditionally suffered under the oppression of the Communist Chinese. I can remember a time when we liked people like that."

The military, however, insists it must keep them in custody for ''safety and security" reasons.

Robertson said housing the cleared detainees in barracks among off-duty soldiers is ''a nonstarter," but he said he was intrigued by the idea of treating them like migrants on the base, housing them where they would have more freedom but remain under supervision.

Terry Henry, a Justice Department lawyer, said the Bush administration is working to find a country willing to take the men, but their status is similar to a situation at the end of World War II, where some prisoners of war had to stay in prison camps for several years because of complications with repatriating them.

''The executive power to make war includes the power to hold enemy combatants and suspected enemy combatants," he said. ''That includes the authority to wind up that detention in an orderly fashion."

But Robertson there was a key difference: Unlike the Uighurs, the German POWs had fought against US forces.

Willett also asked the judge to grant his clients the right to use a telephone so they could talk to their families and so he could communicate with them without traveling to Cuba. Henry balked, saying other lawyers would demand the same privilege.

But Robertson said that the problem would be solved if he had the Uighurs brought to Washington, invoking a power of judges to order the state to produce a prisoner in their courtrooms and justify their incarceration.

When he first visited his clients last month, Willett learned that the military had ruled the men weren't combatants. He told the judge that the Bush administration never informed him and had implied in court papers that the detainees were ordinary enemy combatants.

Willett said Qassim and Hakim both left home before the attacks of Sept. 11, 2001, fleeing persecution in China. Pakistani police subsequently arrested them and turned them over to the US military as Al Qaeda suspects -- apparently in exchange for $5,000 bounties. The US transferred the men to Guantanamo.

The Boston Globe first wrote about their case last week. After it was published, Willett said, Hakim's sister, who is now living in Sweden, called him in tears.

''A'del's sister told us she thought her brother was dead," Willett said. ''She was right; these prisoners are dead to the outside world."

In a related development, several news organizations reported yesterday that they had been given e-mails written last year by two military prosecutors who were involved in planning for war crimes trials of Guantanamo detainees before a military commission.

The prosecutors alleged that the trials had been rigged against defendants by picking commission members who were certain to convict and by planning to withhold evidence, for security reasons, that might help the detainees. But the chief prosecutor called the criticisms false, and a military review backed his decision.

The American Civil Liberties Union, a critic of the military trial system, said the e-mails show the system is flawed.

''Clearly the concerns raised by these two confirm what we've been saying from the beginning: [The Pentagon] rigged the system to render the result the Bush administration wants," Anthony D. Romero, executive director of the ACLU, told the Associated Press.

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