terça-feira, 7 de outubro de 2008

Os inimigos combatentes de Bush

O Prof. Farlei Martins envia para postagem a seguinte notícia sobre os prisioneiros de Guantanamo publicada no jornal New York Times de 08 de outubro de 2008
Federal Judge Orders Release of Chinese Muslims

WASHINGTON - A federal judge on Tuesday ordered the Bush administration to
immediately release 17 Chinese Muslims who have been held for seven years at
Guantánamo Bay, and to allow them to stay in the United States, because they
are no longer considered enemy combatants.
The ruling, handed down by Federal District Judge Ricardo M. Urbina, marked
the first time that any United States court rejected government arguments
and ordered the release of detainees from Guantánamo Bay, an American naval
base in Cuba, since the detention center there opened in 2002.
Judge Urbina said that the detention of the 17 prisoners - members of the
Uighur ethnic group, a restive Muslim minority in western China - was
unlawful, noting that the Constitution prohibits indefinite imprisonment
without charges.
"I think the moment has arrived for the court to shine the light of
constitutionality on the reasons for the detention," he said.
The judge ordered the 17 detainees, all of whom are men, brought to his
courtroom next Friday, but the government suggested that it would
immediately appeal the ruling, and that perhaps immigration officials might
detain the men on their arrival in the United States.
The judge reacted angrily, saying he did not want the detainees molested by
anyone in the government, in what he called an urgent matter.
"There was a pressing need to have these people, who have been incarcerated
for seven years - to have those conditions changed," Judge Urbina said.
He rejected a request from the Justice Department for a stay of his orders,
suggesting that he was impatient with the government. "All of this means
more delay," he said, "and delay is the name of the game up until this
The Uighurs, who were detained in Afghanistan in 2002, say they have never
been enemies of the United States. They were cleared of suspicion in 2004,
but they have remained in detention because of controversy over where they
could go. They say they would be persecuted or killed if they were returned
to China, but efforts to find a home for them have been complicated by fears
in many countries of diplomatic reprisals from China.
In 2006, Albania gave refuge to five Uighurs from Guantánamo despite
protests from the Chinese government. The Bush administration, which has
refused to admit the other 17 to the United States, said it had failed to
find any other country willing to take them.
On Tuesday, the Chinese government demanded that all Uighurs held at
Guantánamo Bay be repatriated to China.
In June, federal appeals judges issued a decision that ridiculed as
inadequate the Pentagon's secret evidence for holding one of the Uighurs,
Huzaifa Parhat, a former fruit peddler who said he had gone to Afghanistan
to escape China.The government argued that the 17 detainees should be held
at Guantánamo Bay until a country could be found for them. In filings,
Justice Department lawyers argued that while Judge Urbina could hear the
Uighurs' case, he could not order their release because the judiciary
"simply has no authority" to do so.
The Justice Department contended that the government's executive branch, not
the judicial branch, had the authority to conclude military detentions, as
it had in previous wars. It noted that in World War II, "no court ever
questioned that it was solely for the political branches - not the courts" -
to decide how Italian prisoners of war were handled.
P. Sabin Willett, one of the Uighurs' lawyers, said such claims appeared to
be laying the groundwork for government appeals.
When the Supreme Court ruled in June that detainees at Guantánamo Bay had
the right to challenge their detention in federal court, the justices said
that after more than six years of legal wrangling, the prisoners should have
their cases heard quickly, because "the costs of delay can no longer be
borne by those who are held in custody."
Until now, none of the scores of cases brought by detainees have been
resolved by any judge.
Since the Supreme Court issued its ruling, lawyers for most of the 255
detainees in Guantánamo Bay have pressed ahead with habeas corpus petitions,
yet most of those cases have been delayed by battles over issues like
whether some court sessions will be held in secret, whether detainees can
attend them, and what level of proof will justify detention.
Some of the arguments made by the Justice Department appear to challenge the
Supreme Court's conclusion that the federal courts have a role in deciding
the fate of the detainees. Officials and lawyers inside and outside of the
government say the new legal confrontation suggests that the Bush
administration will probably continue its defense of the detention camp
until the end of President Bush's term and that it is not likely to close
the camp, as administration officials have said they would like to do.
"The legal issues that are being raised by the administration are going to
take longer than the remaining time of the administration" to resolve, said
Vijay Padmanabhan, an assistant professor at Cardozo Law School who was
until July a State Department lawyer with responsibility for detainee
"It is part of a broader strategy," Mr. Padmanabhan added, "which is not to
make difficult decisions about Guantánamo and leave it to the next
Detainees' advocates say that the administration is using the legal battle
to delay judicial review of its evidence, while government lawyers argue
that the cases are moving rapidly considering that they are unprecedented.
A Justice Department spokesman, Erik Ablin, said the government was working
toward quick hearings for detainees, but was determined to take every
precaution to avoid having dangerous people released. He added that "it is
certainly the government's goal to detain enemy combatants who are deemed a
threat to the United States."
Habeas corpus suits, which have their root in centuries-old English law, are
generally streamlined proceedings for prisoners to force officials to
explain why the prisoners are being held. The Guantánamo cases permitted by
the Supreme Court's ruling, Boumediene v. Bush, are to allow courts to
review the government's reasons for holding the men as enemy combatants.
The military's enemy-combatant hearings, which the administration says
permit indefinite detention, are separate from the Pentagon's effort to
prosecute some detainees in military commission trials.

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