Update: A federal appeals court ruled on June 20 that the Pentagon must release Guantánamo detainee Huzaifa Parhat--one of 17 Uighurs, Chinese Muslims from northwestern China,  held at the detention center since 2002--or hold a new hearing on his detention. The ruling, covered by The Am Law Daily, was a major win for Bingham McCutchen partner Sabin Willet, whose efforts representing Guantánamo's Uighurs are detailed below.


Of the approximately 270 detainees who remain in the U.S. detention center at Guantánamo Bay, some are there for just one reason: There is nowhere else for them to go. Their home countries won't take them--or the United States doesn't trust those countries to treat them humanely--and no other governments have stepped forward.

Among those stateless men, one group stands out for the sheer unlikeliness of its tale. A group of Uighurs, ethnically Turkic Muslims who dominate China's vast, dusty northwest, has been held at Guantánamo for more than six years. For their American lawyers, including Bingham McCutchen bankruptcy litigator Sabin Willett, the Uighurs represent one of the greatest injustices of U.S. detainee policy after the September 11 attacks.

The Uighurs at Guantánamo left China in the years just before 9/11, fleeing what they describe as religious persecution and economic discrimination. At the time of the attacks, they were living in a small Uighur settlement in Afghanistan that the Pentagon calls a training camp and Willett describes as a kind of expatriate village. When American planes bombed the area in October 2001, the Uighurs fled and were picked up by bounty hunters who sold them to U.S. forces. They were sent to Guantánamo in 2002.

Despite having been cleared for release long ago, 17 Uighurs are still there. Three of Bingham's clients have been released, and one of them appears close to winning permanent asylum in Sweden. But nine of them, known at Bingham as "our guys," remain in solitary cells at Guantánamo's Camp Six.

"We spend a lot of time trying to explain to these men what the hell is happening, and why nothing is happening in the courts," says Willett, who has been to Guantánamo ten times to meet his Uighur clients. "Every aspect of [their lives] has gotten worse."

After the U.S. Supreme Court ruled in 2004 (in Rasul v. Bush) that federal courts could hear habeas corpus petitions on behalf of Guantánamo detainees, several firms, including Bingham, approached New York's Center for Constitutional Rights and signed on to represent detainees pro bono. CCR knew that a group of Uighurs was being held in Guantánamo, and in early 2005 the organization suggested that Bingham begin pressing their cases. Kramer Levin Naftalis & Frankel; Baker & McKenzie; and a Connecticut solo practitioner have taken on Uighur cases as well, but Bingham has represented the majority of the 23 Uighurs and has been particularly active in their cases.

When Willett arrived at Guantánamo in July 2005, he met his first two clients separately in a tiny interrogation hut at the base's Camp Echo. The men were caged and chained to a bolt in the floor near a toilet and a small bunk. Not only did the Uighurs profess their innocence, a JAG officer on the base revealed that they had already been designated "no longer enemy combatants" by the Pentagon. From that moment, Bingham has been caught up in a whirlwind of litigation, lobbying, and diplomacy.

The firm had filed habeas petitions seeking judicial review of the men's detentions in federal district court in Washington, D.C., and when Willett returned from Guantánamo in the summer of 2005, he filed emergency motions for their release. The firm also filed habeas cases on behalf of ten Uighurs who were still considered enemy combatants. After a series of hearings and flurry of additional motions, U.S. district court judge James Robertson ruled in December 2005 that the continued detention of the noncombatant Uighurs was unlawful but that he was powerless to order their release. Bingham appealed.

By then Willett was convinced that the Uighurs were indirect victims of the Bush administration's efforts to win Chinese support in the United Nations Security Council for an Iraq invasion. After 9/11, China began to describe its fight against Uighur separatists as part of a global war on terrorism, and in mid-2002 the administration agreed to list a Uighur separatist organization as a terrorist group with ties to Al Qaeda.

The U.S. has resisted Chinese requests to repatriate the Uighur detainees to China because of the reprisals the men would likely face there, and any other country that took them could face reprisals from China. According to the Pentagon, 90 countries have so far refused entreaties to accept the Uighurs.

In May 2006, as Willett prepared for oral argument on his appeal of the district court's ruling, five of the Uighur detainees were shuttled onto a military transport plane without warning and flown to Albania. The next morning, Willett was on a hastily arranged flight to Tirana, the Albanian capital. He found two of his Uighur clients and three clients represented by Kramer Levin in a dilapidated refugee camp. He presented them with clothes he bought for them from The Gap in Boston the night before and took them out for a celebratory lunch.

Willett calls what happened to one of those men, Adel Abdul Hakim, "the one ray of sunshine in this whole disturbing thing." Hakim had a sister living in Sweden who fled China in 2001, facing the state-mandated abortion of her fourth child. With the help of a Swedish lawyer, Willett was able to arrange for an invitation last November for him to fly from Albania to Stockholm to speak to a human rights conference. Hakim petitioned for asylum as soon as landed in Sweden, and he remains there today.

For the Uighurs still saddled with enemy combatant status and living in isolation at Guantánamo, the situation is much more grim. Congress passed the Detainee Treatment Act in December 2005 and the Military Commissions Act in October 2006, which effectively stripped the Guantánamo detainees of their habeas protections. Bingham's nine remaining clients have had their own habeas cases stayed since September 2005, pending appeals in a detainee habeas case, Boumediene v. Bush. (In June, the Supreme Court ruled 5 to 4 that detainees have the right to challenge their detentions in civilian courts.)

Desperate to get the men's cases heard, between December 2006 and March 2007 Bingham filed petitions for the Uighurs under the Detainee Treatment Act and began litigating for the government to release a more expansive record of the men's capture and detention. Willett was convinced it would include exculpatory evidence to contradict their status as combatants. Bingham has argued through three rounds of briefings and seven judicial opinions from the U.S. Court of Appeals for the D.C. Circuit and is now waiting to hear whether the Supreme Court will consider the issue. Late last year, Willett finally won access to the limited record the government favored. On the basis of that record, Bingham filed a petition for immediate release of the Uighurs, which Willett argued before the D.C. Circuit in April.

In the end, the detainees' lawyers say, the Uighurs' problem is more political than legal. Officials from the U.S. Department of Justice, the U.S. Department of State, and the U.S. Department of Defense confirm that the remaining detainees have been cleared for release from Guantánamo if a country can be found that is willing to take them. Bingham has been lobbying members of Congress on behalf of the detainees, and has been involved in talks with more than half a dozen countries about taking in the Uighurs. Willett, who maintains a side career as a novelist, has kept up a barrage of newspaper opinion pieces and public declarations, including testimony before Congress in May, trying to focus national attention on the Uighurs. Their best hope, he says, is for the U.S. itself to take them in.

At the very least, Willett wants to see the Uighurs moved out of isolation, which he says is driving them mad. Years back, some of them were granted access to a small plot of soil, and he remembers how it eased the strain of their detention. Using plastic spoons as shovels and scraps from their rations for seeds, the men planted tomatoes, peppers, and a small lemon tree.

Willett once remarked to the Uighurs that digging with spoons must take a long time. "We dig all day," one of them replied. "We got a lot of time."