Aug. 17, 2005 – In late March, the US government declared that two detainees held at the GuantÃ¡namo detention center -- Aâ€™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.
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.
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 GuantÃ¡namo 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 GuantÃ¡namo 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 doesnâ€™t mean you can keep them in prison," said Foster. "The government has held them here for almost four years knowing theyâ€™re not enemy combatants. And they donâ€™t seem in a hurry to get them out of GuantÃ¡namo."
During the August 1 hearing, attorney Sabin Willett testified that during a July 14 visit, he found his client "chained to the floorâ€¦ 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.
If nothing else, the lawyers argue, asylum in the US should be an option.
"Theyâ€™re not soldiers, theyâ€™re not criminals, theyâ€™re just Uighur people," said Willett during the August 1 hearing.
Approximately two dozen Uighurs now being held in GuantÃ¡namo 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 GuantÃ¡namo, 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 governmentâ€™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.
Hussein Ibish thinks the men are being used as political footballs in the context of US-China relations.
"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 itâ€™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 theyâ€™re working on it, but weâ€™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 canâ€™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 GuantÃ¡namo 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 GuantÃ¡namo, 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.
The menâ€™s attorneys say that even though they have been cleared of any suspicion, the US government continues to treat Al-Hakim and Qassim like criminals. Their supplemental brief notes that the government refers to them as NLECs, meaning "no longer enemy combatants."
"The phrase is pregnant with the suggestion that Petitioners once were â€˜enemy combatants,â€™ wrote the lawyers. "That suggestion is falseâ€¦ [The] petitioners have never been enemy combatants."
Throughout the August 1 hearing, Judge Robertson expressed surprise and disapproval at the Uighurâ€™s condition and the governmentâ€™s failure to report the finding of the change in their status to the court.
Possible Ulterior Motive for Detentions
The Uighur people, who descended from the Dingling nomadic tribe in the Third Century BC, were conquered by Turks in the mid-Ninth Century and intermarried with Turks, Tibetans, Mongols and other tribes over the years. Once they concentrated in the northwest region, their cotton-growing and trading economy flourished and eventually drew repression from the Chinese government. The Uighurs, whose name means "unity" or "alliance," have also been part of a movement for an autonomous Turkestan in the region.
Hussein Ibish, vice chair of the Progressive Muslim Union of North America, thinks the men are being used as political footballs in the context of US-China relations. The US has formed an uneasy alliance with China as part of the so-called "war on terror," not to mention increasing trade negotiations between the two countries, so some think the treatment of the Uighurs is meant to avoid offending China.
"We donâ€™t really have to guess why theyâ€™re still in jail," Ibish said. "Itâ€™s because of the US relationship with China, the quid pro quo made between the US and China as part of the war on terrorism and [Chinaâ€™s opposition to] the movement for an Eastern independent Turkestan. Thereâ€™s obviously a desire to keep them incarcerated. Where does that desire come from? Iâ€™d say the bilateral agreement with China and Chinaâ€™s concern about the Uighur situation."
According to the human rights group Amnesty International, in the past China has demanded that other countries like Pakistan, Nepal and Kazakhstan return Uighurs for prosecution and imprisonment when they apply for asylum.
"China has repackaged its repression of Uighurs as a fight against â€˜terrorism,â€™" the group said in a July 2004 report. "Since the September 11 attacks on the USA, the Chinese government has been using â€˜anti-terrorismâ€™ as a pretext to increase its crackdown on all forms of political or religious dissent in the region."
Ibish noted that in the bigger picture, the veil of secrecy around almost all proceedings at GuantÃ¡namo allows political machinations like this to play out without outside oversight.
"Itâ€™s an example of how problematic it is that the government operates prison facilities in which they follow no known set of rules," he said. "There are a number of potential sets of guidelines or recognized structures they could use: the Geneva Convention, US criminal law, or they could have created consistent, clear rules with meaningful opportunities for prisoners to challenge their detention. But the situation with the Uighurs [at GuantÃ¡namo] demonstrates that when you allow the government to proceed without clearly defined rules, youâ€™re really inviting abuse. Itâ€™s not defensible."
In court Willett noted that when he spoke to Al-Hakimâ€™s sister, a refugee in Sweden, she thought her brother had died. "These people are dead to the outside world," Willett told the court. "Theyâ€™re dead to their children, theyâ€™re dead to their wives, even their names are a secretâ€¦and every single day this continues is another small death."