Sabin Willett
One spring morning in 2009, my partner Susan Baker Manning and I walked out of the offices of the Department of Homeland Security in Washington, D.C., grinning ear to ear. We’d cut the deal. Two Uyghur clients would be freed from Guantánamo and brought to northern Virginia—perhaps within days. More than seven years had passed since the first interrogator told these men that they were innocent and would soon be freed. We’d been hard at their legal cases for more than four years. The cases had taken us to Guantánamo and the trial court, to Congress and the D.C. Circuit, to Albania and Sweden. At last, these two men had the end in sight. Ablikim and Salahidin would be freed. We were almost giddy.
It was a cold, sunny morning, and quiet outside the Nebraska Avenue complex. We knew things would not be quiet for long. A press fracas would erupt when our clients arrived in Northern Virginia. We’d have to prepare the men for sound trucks, shouted questions, microphones thrust at them. But over four years we had learned something about the press. If our clients could weather the initial flurry, the press’s attention would pass to other things. And as the excitement faded, perhaps the mythology of the Guantánamo “terrorist” would begin to fade with it.
We crossed the street to where Susan’s Austin Mini Cooper was parked, and found the right rear tire was flat.
The president’s bold pledge to close Guantánamo would soon be as flat as the tire. The deal we’d struck would collapse, and not just for Ablikim and Salahidin, the two Uyghur clients whom a senior officer of the department had just committed to bring to the United States. In a broader way, our deal would take the air out of the whole program for closing Guantánamo—out of Executive Order 13492 (which ordered the prison’s closure two days after Obama’s inauguration), out of the hopes of hundreds of men. Our deal would end up double locking the gates of the iconic prison, rather than opening them.
Of all the inmates, it was the Uyghurs who made Guantánamo the forever prison. Of all the prisoners, it was the indisputably innocent ones—the ones everyone agreed did not belong there—who inspired our country to make Guantánamo a monument and its inmates perpetual exhibits. The law of Guantánamo is the law of unintended consequences.
The Uyghurs are a Turkic people. They come from a region of Asia known to them as “East Turkestan,” and to the Chinese as Xinjiang, and practice a less conservative Islam than is common on the Arabian peninsula. Between Han and Uyghur people there has always been tension. In the last century, Uyghurs staged several uprisings against Chinese rule, and twice (in 1933 and 1944) briefly gained their independence. The First East Turkestan Republic, a short-lived attempt at independence, fell in 1934. A second East Turkestan Republic, a Soviet puppet state, existed from 1944 until Mao Tse Tung seized power in 1949.
Enforced limits on religious worship and child rearing are a staple in the region, and in early 1997, mass imprisonment of Uyghur dissidents sparked demonstrations in the city of Ghulja. On February 5, 1997, after two days of protests calling for independence, marchers were crushed by the army. Official reports put the death toll at nine, while dissident reports estimated the number killed at more than 100. According to Uyghur sources, more than 1,000 people were arrested on charges of “splittism,” “conducting fundamental religious activity,” and “counterrevolutionary activities.” Amnesty International documented as many as 190 executions carried out in the years immediately following the Ghulja demonstrations.
Before 9/11, the U.S. represented a beacon of hope to the Uyghurs, a place where religious freedom was secure. The World Uyghur Congress sometimes met here. Two Uyghurs who later would serve as our law firm’s translators, Nury Turkel and Rushan Abbas, had reached the U.S. as students and remained as refugees.
Other Uyghurs were fleeing the country in different directions. In the late 1990s and early 2000s, many young Uyghur men fled across the Chinese border into Pakistan, and then made their way across the border to Afghanistan, whose ruling Taliban regime welcomed any Muslim refugee. Many came across the border to Jalalabad. In the mountains nearby a Uyghur village was established. Here many of our future clients came together to “learn to pray,” as they would describe it. This meant, quite literally, learning Arabic and the required forms of worship in the Qur’an.
They were in this village when the towers fell on 9/11, and there in October 2001, when the U.S. bombing campaign began.
The bombing killed a number of men outright. Others fled to nearby caves. In the morning they awoke to a moonscape. With winter coming on, they began a journey on foot across the mountains to Pakistan, where they arrived sometime in December. By this time the U.S. had flooded the region with pamphlets promising bounties for the capture of terrorists fleeing the Tora Bora mountains. In December 2001, 16 Uyghur prisoners were delivered to the Americans and taken to Bagram Airfield Military Base in Afghanistan.
It was a hard winter. The detention cages at Bagram were cold and filthy, and the interrogations brutal and unsophisticated. There were no Uyghur translators. But some of the group spoke enough Arabic to be understood, and over those first months, interrogators came to understand that these men were not the enemy.
“You are fish flopping in the wrong net,” one interrogator told our future client Adel Abdul-Hakim.
The military did not know what to do with the clients. In classic form, some unknown officer decided to make them someone else’s problem. So in May and June 2002, they were flown to Guantánamo Bay, Cuba.
The first Uyghur prisoner, seized from a hospital in Northern Afghanistan, arrived at Guantánamo in January 2002. Most of the other Uyghurs came from the village near Jalalabad, and arrived several months later. Twenty-three Uyghur men would ultimately arrive at the base.
During the next decade, Guantánamo would become a fencing ground for lawyers. In the beginning, prisoners had no legal rights and all status review was discretionary. Early habeas corpus challenges, brought by the Center for Constitutional Rights for other prisoners in February, 2002, were quickly dismissed, and the dismissal affirmed by the court of appeals. So for two years there was no interference from the courts. In those early days, every one of the 23 Uyghurs was told—repeatedly—by U.S. interrogators that his detention was a mistake, an error, and that the government was working to remedy it. Because U.S. law prohibits sending a person to a country where it is likely he will be tortured, and because country reports prepared annually by the U.S. State Department made plain that in China separatists faced torture, the men could not be sent home. There is some evidence that, very early in their captivity, the government made half-hearted efforts to settle them elsewhere. But it was a confusing time: the Afghanistan war was underway and the Iraq invasion was about to begin. For any host nation, offering refuge to the Uyghurs meant damaging relations abroad with China, while resettling “Guantánamo terrorists” risked political attack at home. Long before we met them, our clients had been branded with the indelible taint of Guantánamo.
Still, the Uyghurs’ early on-base relationship with U.S. interrogators was good. They volunteered their personal histories, believing that the U.S. would help them find a safe harbor, a refuge from Chinese communism. The interrogators told them that the U.S. was “looking for a country” to resettle them. They merely had to be patient.
But something else was brewing in Washington, an episode in U.S.-China relations of which a small but remarkable chapter would play out at the base.
In the summer of 2002, the Bush administration sought UN Security Council support for a war resolution against Saddam Hussein’s Iraq. In order to procure, at minimum, China’s agreement not to veto a resolution, the U.S. government agreed to various concessions to the Chinese. Many related to Taiwan, but a few touched on Uyghur matters. In September, the U.S. agreed to designate a new group, the “East Turkestan Islamic Front,” on the State Department’s list of foreign terrorist organizations. It also agreed to grant to Chinese interrogators permission to come to Guantánamo and interrogate the Uyghurs. Although our clients were seized long before this designation, and although Congress never authorized war against “ETIM,” in years to come we would often contend with the allegation that our clients’ imprisonment at Guantánamo was justified by their “membership” in ETIM.
Guantánamo is, largely, a classified facility. I first visited in 2005, and was not permitted to meet clients there before undergoing an FBI background check. Finding translators was difficult because they too were required to be U.S. citizens. (The number of U.S. citizens willing to work as translators and fluent in Uyghur is limited.) Yet agents of the Chinese government were welcomed at Guantánamo in the fall of 2002 to interrogate the Uyghurs and given complete access to classified information that our clients had earlier volunteered to interrogators.
In 2003, the UN did not support the Iraq invasion and the Uyghurs were not delivered to China. But the 2002 interrogations had searing consequences for the Uyghur prisoners and for lawyers who would arrive years after. Prior to the arrival of the Chinese, our clients believed America was attempting to resettle them and candidly discussed details concerning their families and backgrounds. When they learned that this information was turned over to the Chinese, they lost faith in Americans, a loss of faith the lawyers would struggle for years to overcome.
By mid-2003, the government had largely lost interest in our clients. They were interrogated less often. They were living in Camp Four, the lowest-security camp. It was a Spartan existence, but peaceful. The men slept in a small dormitory and, within the fenced compound, could go in and out of doors at will. They generally ate outdoors at a shaded picnic table. They practiced their faith together, praying five times daily.
From early 2002 through mid-summer 2004, lower courts had consistently dismissed habeas challenges brought on behalf of detainees and denied lawyers even client visits, reasoning that there was no habeas jurisdiction over the Guantánamo naval base and so there was no reason for lawyers to have access. But late in June 2004, the Supreme Court issued its decision in Rasul v. Bush, which held that Guantánamo detainees enjoy the privilege of habeas corpus. In the fall, the first lawyers began visiting the base, and late that year, or early the following year, Abu Bakker Qasim, a historian of the struggles of the Uyghur people, dictated a letter, which another detainee wrote out in English. The letter, which bears an “unclassified” stamp and a fax legend of “Feb. 8, 2005,” lives in a frame on my office wall today. It requested legal assistance. Abu Bakker, his friend Adel Abdul-Hakim, and others signed it. The letter reached our firm late in February.
I knew little of habeas corpus or military law, and nothing of Uyghurs when I received this letter. Like most Americans, I assumed that Guantánamo Bay was a sort of POW camp where, as our government had put it, the “worst of the worst” were held. So I attended a post-Rasul conference and learned from military lawyers on the panel that the government contended that the base was a place beyond law. The government defended against claims that torture was practiced there by asserting that the courts had no jurisdiction over anything that happened at Guantánamo—a defense I didn’t find wholly reassuring. We decided to get involved.
We had never met the men and could not speak with them by phone, but our firm decided to take on Abu Bakker and Adel’s case. We filed a habeas petition for them in March 2005. It took more than three months to meet them, though. Susan and I, and then other members of our team, had to go through FBI background checks and then wait for the government to grant our request for a meeting. We met the men in mid-July 2005 in interrogation cells at Camp Echo, one of the camps at Guantánamo Bay.
The government had been surprised by the Rasul decision. Rasul meant lawyers would come to the base, and it meant that courts would begin to receive information about who the detainees actually were. So in late summer 2004, the government hastily implemented Combatant Status Review Tribunals (CSRTs), panels staffed entirely by military officers, whose avowed object was to determine whether a given detainee was properly designated as an “enemy combatant.” The strategic purpose of these tribunals was to head off judicial review. The government would argue that courts should defer to the CSRTs, much as courts defer to administrative agencies.
The tribunals were roundly criticized for failing to provide a modicum of due process—and those failings later would be confirmed by the Supreme Court. But in the meantime, the blizzard of legal thrust and parry that would characterize the next years had already begun. Each challenge from lawyers would be met with a new system of “status review”: CSRTs in Guantánamo trailers, administrative review boards, habeas corpus hearings in district courtrooms in Washington, and briefly, Detainee Treatment Act cases in the Court of Appeals.1
No one in the government could say, “Well, it’s a foreign war in a strange land, fought, in the beginning, from the air—not surprising that the military made a few mistakes. Let’s put them right.” With the bar assaulting the whole concept of Guantánamo root and branch, and the Bush administration battling back, no mistake could be admitted. So detainees who had been cleared for release years before were put back through review tribunals—and many, having previously been cleared, were now designated as “enemy combatants” in order to stave off judicial review.
What happened to the Uyghur detainees in this regard was passing strange. Some panels determined that Uyghur detainees were not “enemy combatants.” The Pentagon’s response? Put them through a second panel. In some cases the “mulligan” cleared the prisoner again, and in some cases the panel got the message and discovered that the prisoner was in fact an enemy. Detainees who emerged from the Kafkaesque gauntlet were labeled persons “no longer” enemy combatants—because mistakes were never made.
One can imagine how the men felt about this. All of them had been told, years before, they were innocent and the government was “trying to find a country for them.” Now they would be put through tribunals? And if the tribunals cleared them, put through a second round of tribunals?
On Bastille Day 2005, I walked into that first hut with high anxiety. I had never met the men, never seen any military file about them. I had no idea whom I would meet. We had not even been able to secure a Uyghur translator, and spent much of our first meeting in an elaborate game of charades, attempting to work through our Arabic-language translator.
But I learned from Abu Bakker that he and Adel had just emerged from this strange time warp. Years after being reassured that they would be resettled, they were sent back for “status review.” Abu Bakker told us about his own CSRT review. They had given him a paper, he said. The paper read, “Siz gunasiz.” We were struggling with translation that first day, and so we went through this part again, slowly. He’d been through the CSRT—in the trailer, with the three military officers? Yes—and then another one. (Another one? Did he mean a second day? No, he meant another one, a second tribunal. Susan and I looked at each other, not quite comprehending.) At the end they gave him a piece of paper? Yes—he had it in his cell. And it said what?
(Confronted with the bureaucratic doublespeak of the form—“the detainee is no longer designated as an enemy combatant”—our clients had asked an MP what the English meant. It means you’re innocent, he said.)
The same, we learned, had happened to Adel.
On our return from Guantánamo, we filed emergency motions in federal court, and District Judge James Robertson summoned the parties to a hearing. All through that fall he demanded to know what the government was doing about our clients’ situation. But just before Christmas, he issued his ruling, dismissing the case because, he concluded, the court could not order the release of the men in the U.S. and it could not order release anywhere else. As Virgil says, there is a heartbreak at the heart of things.
We filed an expedited appeal. In May 2006, on the eve of argument, the government mooted the appeal by sending Abu Bakker, Adel, and three other Uyghurs, all of whom had been cleared by a CSRT, to Tirana, Albania. Four of them live there still. In 2007, Adel was able to claim asylum in Sweden, where his sister was granted refuge some years before. He has since remarried and has a child. Abu Bakker remains in Tirana.
In those first meetings with the clients, we had learned something interesting—many companions of Abu Bakker and Adel, having been cleared by one CSRT, had been put through a second, which declared them to be enemy combatants. So we filed petitions for them as well. But the government resisted, arguing that we did not have the correct permission from the clients to do so. Almost a year of wrangling ensued before we could meet many of our new clients, including Khalil, Abdullah, and Ablikim, for the first time in 2006.
Our work for them was interrupted by the Detainee Treatment Act, which went into effect that year and briefly stood as a bar to habeas review until the Supreme Court pronounced it constitutionally inadequate in Boumediene v. Bush, issued in June 2008. The subsequent legal proceedings were complex, but later in 2008, the Uyghurs had all “won” habeas corpus review in the district court. Early in 2009, in a split decision that stands today, the U.S. Court of Appeals for the D.C. Circuit—the federal appeals court in Washington, D.C., where all detainee cases go to die—ruled in Kiyemba v. Obama that their win meant precisely nothing. A judge could not order that they be freed. Freedom meant releasing the detainee in the United States (since a U.S. court can order no sovereign but our own to receive a prisoner), and such a release order ran into the political branches’ exclusive control over immigration, the appeals court reasoned. So the Uyghurs enjoyed the privilege of habeas corpus, were entitled to court review, and prevailed in that review. And after they prevailed they were entitled to be sent back to the same cells. The third branch’s power to “check the executive” was this: it had the power to require the executive to report, once every quarter or so, that it was continuing to try to arrange a release, on its own terms and timing, to a place of its own choosing.
Kiyemba remains law. It is what the Great Writ of habeas corpus means in America today.
The Uyghurs passed the gauntlet—the CSRTs, habeas corpus hearings, even the late-lamented Detainee Treatment Act. They passed every review except Kiyemba’s. Though written in elegant prose, with nods toward the Constitution, Kiyemba dressed in rouge and lipstick the more primal xenophobia that informed a review that our clients could never pass: the review of the mob.
Early in the Obama presidency, we engaged with the president’s advisors, and negotiated a deal to bring two Uyghurs to Virginia. It was a sensible idea from each side’s perspective. The men would reach a free country, where they might at last begin to rebuild their lives. The government would, without risk to its citizens, advertise to the world that it was participating in the process of closing down the prison. This would make it politically easier for allies to take other detainees.
But in May 2009, news of the planned Uyghur release leaked. Our clients had been in Guantánamo for seven years. The district court determined that none of them was an enemy belligerent or posed a danger to the United States. Even the D. C. Circuit had previously ruled for one of them in an earlier case. It wasn’t just that these people were not our enemies; they were religious refugees from Communist China, people who long had held us in the highest esteem, as a nation that venerated freedom of worship. The proposition that these people were our enemy was not simply false. It was not simply disproved by the executive branch itself. It was an embarrassment.
But that did not matter, because they came from Guantánamo. And so Rep. Frank Wolf went to the House floor to denounce the release of “terrorists” into his district in Virginia. John Thune did the same in the Senate. Others took up the hue and cry, all of them either factually ignorant or politically strategic, all of their political denunciations counterfactual, jejune, idiotic.
From the White House came a ringing silence.
From the president’s political impotence an idea was born. If the right wing could embarrass the president over Uyghur releases—if the White House would let itself be pushed around here, why not make the closure of the base a battle cry. Why not keep the detainees there forever?
The inflection point came one day in May. The president of the United States spoke at the National Archives about charting a course to protect the nation from enemies in ways that did not betray our founding principles. That same day a right-wing civilian gave a luncheon talk at the conservative American Enterprise Institute. And the media presented the speeches as equivalent. The headline in the next morning’s Washington Post was typical: “Obama and Cheney Deliver Dueling Speeches on National Security.” That former Vice President Cheney—the architect of the disastrous Iraq invasion and of a national torture policy—could be set up as a strategic equivalent to the White House told us much about the press and the country at large. Americans were ready to be frightened, but unready to stand up for constitutional principles.
A quaint provision of the first article of our Constitution bans bills of attainder. An “attainder” was a punishment meted out to a specific person or identifiable group by a legislative body. The fear was that legislators, responding to the passions of the moment, could be dangerous, while the hope was that a nonelective judiciary would ignore passions to determine whether punishments were consistent with due process of law. Our founders were wise to proscribe bills of attainder, knowing that letting legislatures punish specific individuals brings out the demos in democracy, swiftly amending the translation of “demos-kratia” from “people power” to “mob rule.” Mobs do not care very much about due process. But because of the aborted Uyghur releases, Congress began engaging in bill-of-attainder-like behavior, making it harder for the president actually to release human beings from Guantánamo by passing a series of increasingly onerous transfer restrictions. Mining for votes, Congress passed laws whose aim and effect was to imprison a specific set of men, already held for years, at Guantánamo.
This was all because President Obama planned to bring Ablikim and Salahidin to Virginia and then, when confronted, flinched.
Ablikim and Salahidin were fortunate—they were transferred before the congressional restrictions were implemented. They were sent by the United States to freedom in Bermuda, where they have lived peacefully for six years, have married, have children, hold jobs, and pay rent. On the way to mosque, they toot their scooter horns at passersby. The passersby toot back. If you visit the Princess Hotel in Hamilton, admire the palm trees on the back lawn. Abdullah, another Uyghur who reached Bermuda, is a contractor who helped plant them. These men have broken bread with, among other people, my children.
But they were too dangerous for the Congress of the United States.
I learned from Daniel Klaidman’s Kill or Capture, an account of the early Obama presidency’s attempt to grapple with the so-called War on Terror, that about the time our four clients were photographed arriving in Bermuda, a fierce debate was raging over whether to try Khalid Shaikh Mohammad, the alleged mastermind of 9/11, in a U.S. criminal court. According to a contemporary account, Attorney General Eric Holder met with family members of victims of the 9/11 atrocities, one of whom had come to the meeting with a newspaper showing our clients’ joyful arrival in Bermuda. The family member pronounced himself sickened by the account. The attorney general quietly pointed out that the men had nothing to do with the murder of his loved one. It didn’t matter. They were from Guantánamo, weren’t they?
* * *
Bermuda was a small and improbable miracle, a ray of sunshine in a long storm. While the administration’s resolve to bring our clients to Virginia was collapsing, Greg Craig, White House general counsel, called me to suggest a transfer to Bermuda. At first I thought he was joking. But Bermudian premier Dr. Ewart Brown was willing to try to help the Obama administration, and now the White House strapped in. Greg stressed that this had to be handled quickly and discreetly. It didn’t need to be said that the slightest publicity would lead to Britain’s intercession, and probably that of our own Congress.
It was then that we managed to claw back a point we had argued for and lost in the Virginia deal. Ablikim and Salahidin had been chosen for purely legal reasons, based on Ablikim’s status in one of the lead cases. But I knew that neither was an ideal candidate for the baptism by press fire that awaited. Neither was fluent in English and Ablikim, who had suffered greatly in Camp Six, which was modeled on a high-security U.S. prison, was simply unable to smile for the cameras and play the necessary ambassador’s role. So I had urged the U.S. to bring in at least four of our clients, adding irrepressible Abdullah and gentle Khalil. Both are extremely intelligent, and were conversant in English. Both “got it.” And both could help their brothers navigate a brave new world.
Two only, the U.S. had said. But when we came onto Bermuda, Col. David Burch, the foreign minister, got it as well. Four would be better than two. He agreed, and that is why Abdullah and Khalil made it to Bermuda.
As lawyers we felt a little at sea: how would we learn of our clients’ habeas corpus rights, or any other rights in Bermuda? Citizenship appeared to depend on Bermudian or UK birth, and while Bermuda controlled its “guest worker” policy, there were limits on the ability of guest workers to stay, and no path to citizenship. We telephoned one of the major law firms in Bermuda, which we knew mainly from large commercial deals. “We have a client,” we said, “who needs to better understand the guest worker law.” We supposed they thought we meant a corporation.
We also quickly arranged a call with the clients in Guantánamo (there wasn’t time for a visit), and laid out for them what we could about Bermuda. I had worried that, to them, Bermuda would sound like just another tiny island, far removed from friends, family, or any Muslim community. But as we described its climate and economy, Abdullah interrupted. “Sabin, how much time do we have for this call?” When I told him, he said, “Then stop talking! I don’t want to run out of time and I want it clearly understood that I accept this deal!”
In the space of a couple of weeks the entire deal was negotiated. The day came. We flew to Bermuda, and in Hamilton met with Greg Craig and Dan Fried of the State Department, and then sat down with their Bermudian counterparts at Cabinet House on Front Street. Susan and I watched as the two governments exchanged their “diplomatic notes,” that is, their understanding of their deal. At one point Dan asked whether the government would agree to interview our clients once a week, to “keep an eye on them.” Col. Burch said, “Ambassador Fried, this is Bermuda. There’s nobody here I need to meet with once a week.”
That night we boarded a private plane and flew to the base. We arrived about 3:30 in the morning and found that our clients had been brought by bus onto the tarmac. Our translator, Rushan Abbas, and I boarded the bus. There the four men were, in ill-fitting street clothes, surrounded by two dozen Marines. They stepped down from the bus and crossed to the plane, where their ID bracelets were snipped off and a Marine photographed their departure. Then we boarded.
We landed about 6:30 a.m. on June 10 in Hamilton and taxied to the end of the runway. I sent an email to my lawyer colleagues in the United States: “Four X Joy as the Eagle Lands in Bermuda.” Outside, I looked nervously for press, but there were none. The story had not leaked. It soon would, and more press fracases awaited, but for the moment, there was peace. White roofs, pastel-colored houses, gardens, blue water. Our clients’ eyes were wide.
* * *
Very few of the men in Guantánamo were ever, on any remote construction of the word, terrorists. Some of those who remain were, or may have been, fighters who joined up with the wrong side in an Afghan civil war that ended more than a decade ago. But it doesn’t matter. The public and Congress make no distinction.
Were we always a timorous people, who ran from our Constitution at the first sign of trouble? Guantánamo was a galvanizing concept, at first, a national disgrace, a blot on the flag. We elected a president in part on the promise of shuttering it. But freedom as a bumper sticker is easier than the real freedom of real human beings. The latter was too much for us. The fearmongering of politicians was too much for us. If a delusional Nigerian tries to blow up a plane, keep the men in Guantánamo. If a murderous band of brigands forms in the Levant, more than a decade after 9/11, and starts beheading journalists, keep the men in Guantánamo. And if you’re running for office, and want cheers from a crowd in New Hampshire or a pundit on Fox News, call all the Guantánamo detainees terrorists, although the government never did, and vow never to release them, even though many have long been cleared for release.
I often think of the haunting last sentence of George Orwell’s 1984. Like Winston Smith, the hero of the novel, America transitioned from her fear and disgust over the iconic prison. Like him, she awakened to a revelation: she loves Guantánamo.