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Saved by the Swiss—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on February 11, 2010.

Saved by the Swiss
By Linda Greenhouse ’78 MSL

Did President Obama have to promise to outfit the Swiss Navy to induce Switzerland to take two of the last Uighur detainees at Guantánamo Bay off our hands?

The deal, announced last week, would have been a bargain at any price. By finding a home for a mentally ill Uighur whom no country wanted, as well as for his brother, who had refused to leave without him, the Obama administration will now almost certainly be able to avoid the latest Supreme Court test of the limits of executive power.

The court is scheduled to hear arguments March 23 on whether a federal district judge had the authority to order the government to admit the Uighurs, Chinese Muslims whom all agreed should no longer be detained but who had nowhere else to go, into the United States. The Bush administration took the view that it is up to the executive branch and Congress, and not the judiciary, to decide who gets to enter the country, and the Obama administration maintains that position, although not without internal debate and discomfiture. As Jane Mayer reported recently in The New Yorker, Attorney General Eric Holder and other high-ranking officials were prepared last spring to permit the two brothers to settle in northern Virginia, but were overruled.

The government’s brief in the case, Kiyemba v. Obama, was due at the court last Friday. As the previous administration demonstrated on similar occasions, nothing concentrates the mind like an imminent deadline for explaining oneself to the Supreme Court. (In 2003, rather than defend its refusal to let a detainee meet with his lawyer, the Bush administration amended its policy the day before its brief was due in that detainee’s case.) With the Swiss deal in hand and two days to spare, Solicitor General Elena Kagan was able to tell the justices that because all the remaining Uighur detainees “have received offers of resettlement, their presence at Guantánamo Bay has become voluntary.” The court should therefore dismiss the case, the solicitor general said.

Before turning to the implications of that request, I should offer a brief refresher for anyone who has lost track of the sad story of the Uighurs, the most hapless of the 800 or so men who have been held at Guantánamo over the past eight years (192 of whom remain there.) The Uighurs are members of a Turkic Muslim minority group from western China who fled oppression there and sought refuge in neighboring Afghanistan, near the Pakistani border. In the border-region chaos that followed Sept. 11, 2001, bounty hunters picked up 22 Uighur men and turned them over to the United States military for $5,000 a head. Deemed enemy combatants, they ended up at Guantánamo.

The Bush administration eventually conceded that its Uighur prisoners were not only not enemy combatants, they were not enemies at all. It also concluded that the Uighurs had legitimate fears of torture or worse if returned to China. But finding alternative destinations was a challenge, because countries that had agreed to take other detainees did not want to risk offending China by welcoming Uighurs. Eventually, Albania, Bermuda and the Pacific Island nation of Palau came through. (The United States paid Palau $100,000 for each of the six Uighurs who were resettled there, which at the very least raises questions about the government’s investment strategy: we paid to get the Uighurs in the first place and then had to pay 20 times the original price to get rid of them.) There are now seven Uighurs left at Guantánamo: the two headed for Switzerland, and five who have received but so far have not accepted offers from Palau and a second unidentified country.

When their confinement still appeared endless, the Uighurs had begun filing petitions for writs of habeas corpus, to which the Bush administration, prodded by court decisions in other cases, eventually dropped its opposition. The issue in contention became one of remedy. The traditional habeas corpus remedy is release from confinement. But release to where? A month before the 2008 election, Judge Ricardo M. Urbina of federal district court for the District of Columbia ordered release into the United States. “There comes a time when delayed action prompted by judicial deference to the executive branch’s function yields inaction not consistent with the constitutional imperative,” Judge Urbina wrote.

The Bush administration quickly won a stay of that decision from the United States Court of Appeals for the District of Columbia Circuit, which then overturned Judge Urbina’s ruling with the observation “not every violation of a right yields a remedy, even when the right is constitutional.” Judge A. Raymond Randolph, invoking “the ancient principle that a nation-state has the inherent right to exclude or admit foreigners,” said that it fell within the “exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms.” Courts have no power to interfere, he said.

The Uighurs appealed to the Supreme Court, which sat on their petition for months before finally granting it in October. The justices, or at least some of them, may have fervently hoped the case would go away before they would once again have to wrestle with the profound separation-of-powers questions that have proven so divisive in earlier cases stemming from the Guantánamo detentions – especially the most recent decision, Boumediene v. Bush, the 5-to-4 ruling from 2008 that assured the detainees the right to petition for habeas corpus over a perfervid dissent from Justice Antonin Scalia, who warned that the decision would “almost certainly cause more Americans to be killed.” A supposedly collegial body can take only so much of that kind of rhetoric.

But even assuming that the court will now deem itself free of the Uighurs and their problems, the justices may not get off quite so easily. They have a choice to make and, given how polarized the court is, the choice may be a hard one. If the justices accept Solicitor General Kagan’s request to “dismiss the writ of certiorari as improvidently granted,” the appeals court’s decision, with its tone of near complete judicial deference to the executive, will remain on the books, available to be invoked as a precedent in a future situation. A dismissal of this sort simply returns a case to the posture it would have had if no Supreme Court appeal had ever been filed.

But there is another option, as the solicitor general was surely aware. The court might consider the case on its merits and decide that it has become moot. That finding would entail vacating the appeals court’s opinion rather than leaving it intact. In some as-yet unimagined case, a future president would then have to start from scratch to persuade future judges that the law offers no remedy to foreigners whose fate is in our hands and who have nothing but law to turn to.

I hope the Supreme Court finds the case moot. If the country has absorbed the lessons of its misadventure at Guantánamo Bay by the time such a situation arrives, it might be an uphill climb for that future president to persuade any court to replicate the conclusion the appeals court reached in this case. It should be.