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A right in need of a remedy

Ubi jus ibi remedium.

Probably nothing turns readers off more than starting a column with some incomprehensible Latin phrase. But this one's relevant. It means: Where there is a right, there is a remedy. When a legal wrong has been done, the courts should be able to order some kind of relief. Otherwise, what good is the right?

What good is habeas corpus (more Latin, sorry) if after it is determined that you are being held illegally you can be kept in jail? This is precisely the question the U.S. Supreme Court has agreed to answer. A case taken Tuesday asks whether a court has the power to free Guantanamo detainees after finding they were wrongly imprisoned, even if the only place to send them is the United States.

Here is the crazy situation that exists now: A group of Muslim Uighurs who fled oppression in western China and went to camps in the mountains of Afghanistan were turned over to the U.S. military, reportedly by Pakistani officials for a bounty of $5,000 a head. They have been imprisoned in Guantanamo for more than seven years, and it wasn't until last October that the Uighurs finally had their habeas corpus petitions ruled on by a federal judge. He found they were wrongfully imprisoned. The government has admitted that the Uighurs are not enemy combatants. Whatever beef they have is with China, which is why the men cannot be returned there, where they would be tortured or executed.

But since at the time no other country would take them, U.S. District Judge Ricardo Urbina ordered them released in the United States. A Uighur community promised housing and employment help.

This seems fair. We made them stateless, dragged them to Guantanamo and robbed them of six years of their lives before bothering to give them due process. Releasing them is the least we can do.

But then something astounding happened, at least from a logic, compassion and constitutional standpoint. In February, a federal appellate court set aside the order to free the men. It said that because the Uighurs are aliens and all immigration decisions are the province of the political branches, the court is powerless to order their transfer to our shores.

According to this reasoning, when the U.S. Supreme Court ruled last year in Boumediene vs. Bush that Guantanamo detainees have the right to be free from "arbitrary and unlawful restraint," the court intended a huge loophole. Even if a court determines that a Guantanamo detainee has been unlawfully imprisoned for years, he will have to remain until his jailer finds him another country, whenever that is ... maybe never.

Having a right without a remedy is frustrating when the issue is, say, money damages defeated by sovereign immunity. But here the issue is the most fundamental: liberty.

The Uighur case has resulted in other prisoners ending in the same limbo. Of 30 detainees who federal judges have found in the last year are being unlawfully detained, only 10 have been resettled in foreign countries, none here. Lower court judges are powerless except to admonish the administration to hurry its relocation efforts.

The hope is that even this conservative Supreme Court will side with the Uighurs. The high court was exceptionally protective of habeas corpus during the Bush presidency. It would be stunning if the court allowed those rulings elevating due process over presidential power to be emasculated by immigration law.

The case has iffy prospects on another front. President Barack Obama promised to shutter Guantanamo within a year of his presidency, which could moot the case by the time it is heard next year. Four Uighurs have now been sent to Bermuda, and Palau says it will take others.

But the principle will not go away. Obama promised in his inaugural to protect "the rights of man." To be meaningful, as the president knows, those rights must be more than declaratory. They must include a remedy, a way to walk free from one's illegal imprisonment.

A right in need of a remedy 10/24/09 [Last modified: Saturday, October 24, 2009 11:03am]

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