Wednesday, April 19, 2006

Forgotten but Not Lost

Of all the tragedies of war, one of the most painful are unaccounted POWs and MIAs. The families and nations of these soldiers often take great pains to honor their sacrifice, conducting regular ceremonies of remembrance and/or raising memorials to their honor. "Lost but not forgotten" is a common motto of their causes.

Then there are soldiers for whom almost the reverse is true – missing warriors who have literally been allowed to fade away when their deaths are inconclusive. For example, the government of Japan knows of forty former Japanese World War II soldiers living in the states of the former Soviet Union and believes that as many as four hundred ultimately settled there after hostilities ceased.

One of these "ghosts" walked out of the shadows this year. Ishinosuke Uwano was drafted in 1943 and stationed on the island of Sakhalin in the Soviet Union's far east, north of Japan. He stayed there after the war ended until 1965, when he moved to the city of Kiev in Ukraine. He learned the local language and customs. He married and had three children. For whatever reasons, he never returned to Japan or contacted relatives there. Finally in 2000, his Japanese relatives agreed to register him as having died in the war.

Uwano began pining for Japan in his old age. As a result, if all goes well, he will arrive back in Japan today to begin a ten day visit. "I would like to visit my parents' graves and to see cherry blossoms," he told reporters. But he also made it clear the visit was strictly temporary, adding, "Ukraine has become my homeland." His limbo status lasted a total of sixty-three years.

If this was an isolated incident, we might dismiss it without another thought. But Uwano is supposed to have four hundred brothers in arms in much the same circumstances. Even if the soldiers were not eager to return to Japan, how could its government – and later the governments of the former Soviet republics – allow them to fall so completely through and into the system's cracks? These are all now largely open democracies.

Guess what? The democracy we know as the United States is busily creating its own class of limbo individuals emerging from the fog of war. They sit in the Detention Facility in Guantanamo Bay Cuba, unable to leave it, even after the U.S. government has declared them not guilty of any charges.

Their current limbo status is a direct result of the limbo-like status they were in prior to it. After September 11 and the invasion of Afghanistan, the Bush Administration decided it needed a new designation for terrorists captured in the field. They weren't mere criminals but neither were they soldiers in the sense of representing a foreign government. So they created a new term – Illegal Enemy Combatants.

The new category was probably necessary but it was designed as such an instrument of convenience for the Executive Branch, ignoring many basic precepts of both military law and international treaties, that it inadvertently created seemingly insolvable problems, such as the one our government faces now.

Abu Bakker Qassim and A'Del Abdu al-Hakim are Uighurs, a group of Turkic-speaking people in China that practice the Muslim religion. They live primarily in the Xinjiang Uighur Autonomous Region, also known as East Turkestan. The Uighurs are in a struggle with the Chinese government over their homeland and China considers them terrorists. Qassim and al-Hakim were first captured in 2001 as they tried to flee Afghanistan for Pakistan. The two were allegedly in Afghanistan training for combat with the Taliban.

As such, they were shipped to Guantanamo Bay, along with hundreds of other suspected terrorists, where they sat for about four years. Nine months ago, a military-run Combatant Status Review Tribunal determined that Qassim and al-Hakim had not been engaged in hostilities against the U.S. government and thus had been mistakenly captured and detained. They were immediately re-classed in status to No Longer Enemy Combatants (NLEC).

Unfortunately, the only foreign government eager to have them is China. The U.S. has sensibly turned down that request, knowing the two would most likely be imprisoned, interrogated, tortured, and killed upon their return there. Although we are heavily pressuring Germany at the moment, nobody else in the world wants such politically charged individuals with paramilitary training.

This is the position of our own government as well. In the past, numerous Uighurs have sought asylum in the U.S. and they even have a small but significant community in the Washington area. However, in the current climate, our fear of Muslim extremists trumps our love for anti-Communist freedom fighters. In the meantime, Qassim and al-Hakim have been moved to Guantanamo's Camp Iguana, a less-restrictive area of the prison. The military says it provides such luxuries as television, a stereo system, books, and recreational opportunities, including soccer, volleyball and Ping-Pong.

The two Uighurs disagreed, saying the new location left them more isolated and despondent than ever. They sued the U.S. government to release them immediately – into the United States if necessary – if it no longer found them accountable for any crimes against it.

Their case, Qassim v. Bush, was argued before federal District Judge James Robertson and resulted in one of the most frustratingly antipodal opinions in the history of American jurisprudence. Robertson had no difficulties whatsoever deciding what ought to be done with Qassim and al-Hakim. "The detention of these petitioners has by now become indefinite," he wrote. "This indefinite imprisonment at Guantanamo Bay is unlawful."

Initially, Robertson has been willing to give the government time to find a home for the Uighurs but found nothing had changed after four months except some vague promises of progress. Government officials offered to provide the judge with more details but strictly in secret due to the information's sensitive national security nature. Robertson rejected that outright, saying it was being offered "only to co-opt the court and seek further delay."

The government also argued that even NLECs could be held indefinitely as part of "the Executive's necessary power to wind up wartime detentions in an orderly fashion." Robertson agreed the Supreme Court had made it clear in Hamdi v. Rumsfeld that the President has power to detain suspected enemy combatants, specifically persons alleged to be "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." But he noted, as had the Justices, this authority was grounded in the need to prevent captured individuals from returning to the field of battle.

"Because of this limited purpose, the laws of war require that detention last no longer than the active hostilities," Robertson reasoned. "Nothing in this record establishes that the government has or could reasonably have a concern that these petitioners would return to the battlefield if released." Even if you hold the global war on terrorism is ongoing and active hostilities regarding it have not ceased, there is no evidence that Qassim and al-Hakim ever fought against the U.S. in it. Their beef was with the government of China and, even here, no violence was actually carried out.

Yet now is the point where Robertson hits a brick wall. While he feels there is no doubt that Supreme Court decisions like Hamdi and Rasul v. Bush establish his right to say that Qassim and al-Hakim should go free, the Justices' opinions in these cases lack details about how much authority he can exert to actually make that happen. "The question in this case is whether the law gives me the power to do what I believe justice requires," he concludes glumly. "The answer, I believe, is no."

Robertson said he toyed with ordering the men to be released immediately, without specifying where and how, but rejected that as rash and unfair. He also saw a Constitutional roadblock, related to the Separation of Powers doctrine, feeling there was "a strong and consistent current . . . that respects and defers to the special province of the . . . Executive, with regard to the admission or removal of aliens."

On Monday, the Supreme Court refused to hear an appeal in this case without comment, despite the fact that their lack of comment in the past is precisely what has produced such an inane and paradoxical situation.

Recent language added to the Defense Authorization Bill by Republican Senator Lindsey Graham of South Carolina and Democratic Senator Carl Levin Michigan would restrict access by Guantanamo detainees to U.S. courts. Congress has previously approved the bill. If re-approved with the revision, it could allow the government to hold detainees at Guantanamo indefinitely, without even the limited independent judicial review permitted by the Supreme Court to date. Graham explains that, in his opinion, the oversight function in this instance should belong exclusively to Congress.

None of this means that Qassim and al-Hakim must be allowed into the United States or released immediately and forced upon some unwilling country or returned to sure death in China. But it does underscore the fundamental weaknesses in the Illegal Enemy Combatant designation as its exists today and the inherent dangers in designing a system so sympathetic to prosecutors that even the grossest miscarriages of justice can be ignored by them at whim.

The implications here ought to be terrifying to us. Qassim and al-Hakim join a small but growing set of individuals who committed no crime or act of war against the U.S. Neither did they even try to commit one. Instead, they sit in Gitmo today, with no release in sight, simply because of who they are. If you are Muslim and/or Arab and/or extremist and/or separatist and/or had military-style training, you are simply too dangerous to walk the streets, even if there is no evidence you have done anything wrong.

As Robertson sneers in his opinion, "The government's use of the Kafkaesque term 'No Longer Enemy Combatants' deliberately begs the question of whether these petitioners ever were enemy combatants."

This means these men have been illegally held for five years simply because the U.S. government has decided there are certain opinions and ideas so dangerous that no person in the world can be allowed to hold them. It has decided that no human being on this planet can be allowed to even think certain thoughts without the consequence of being locked up indefinitely.

There are obvious differences between the two Uighurs at Guantanamo and the long-lost Japanese soldier found in Ukraine. He was in limbo for sixty-three years and they for only five so far. Everyone agrees his war is over, while many disagree the same is true for Afghanistan or the war on terrorism in general. Yet the most fundamental difference between them is this – Uwano either wanted or at least had no objections to being in limbo; he was where he wanted to be. Quite the opposite is true for Qassim and al-Hakim.

Once again, the desperate need for better formal and established means of independent judicial review to Guantanamo detainees asserts itself in my mind. If we do not act to right this injustice, the things that will soon be forgotten but not lost won't be limited to human beings. It will also include the individual liberties and Constitutional protections we so cherish and for which the Bush Administration claims we are fighting to spread throughout the world.

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