You Imprison Them, You Give Them a Home

Not as catchy as the "Pottery Barn rule" (you break it, you own it), the "Uighur rule" says that if the United States imprisons people at Gitmo without adequate legal justification, then the United States has to find a place for them to live. Yesterday's ruling by Judge Urbina ordered the release of 17 Uighur prisoners held at Gitmo that the government concedes are NOT enemy combatants.

As far as I have been able to piece together the government's position: 1) it would be happy to send the prisoners back to China but the parties agree they would be in grave and unwarranted peril there; 2) it would be happy to send them to a third country but none is available (Albania, a recipient country of some earlier released Uighur prisoners, is now closed, perhaps out of fear of Chinese retaliation); 3) because the prisoners are not legal immigrants, they have no right to stay in the U.S., so Judge Urbina's order is unwarranted; and therefore 4) the government gets to hold the prisoners at Gitmo. Here let's take a slightly closer look at propositions 3 and 4.

I'm willing to grant that had these 17 fellows simply shown up in DC, they'd have no right to stay---assuming that they could not make out a claim for asylum. But of course they didn't just show up in the U.S. Our government imprisoned them without legal justification. Even if the 17 are not eligible for asylum, oughtn't there to be some sort of principle of estoppel that prevents the government from invoking their immigration status under these circumstances? It would be one thing if the government were coming forward with evidence that these detainees now pose a threat to national security, but as far as I can tell, the government's position is simply jurisdictional: a federal district judge can't order admission of an alien who doesn't meet the statutory immigration criteria. I'm highly dubious of this claim: Judges have broad remedial power for constitutional violations. Given the lack of other options, and given the lack of a threat, release of the 17 into a community volunteering to assist them seems quite reasonable.

Moreover, even if the government is right in this jurisdictional argument, it hardly follows that the alternative to release into the U.S. would be detention at Gitmo. The earlier order in this case was for the govt to transfer or release the detainees. "Transfer" is ambiguous, I suppose, and could mean transfer to civil detention, which is no picnic. Putative refugees awaiting asylum or other immigration determinations are often held in conditions that look a lot like (and often actually are) prison. That morally dubious policy has been approved in other contexts, but seems especially shameful here, given what the government has done to these detainees already. It's not as though detention at Gitmo is about to become a backdoor for illegal immigration into the U.S., so there is no floodgates concern here.

Posted by Mike Dorf