The Rudd Government should help out the United States by accepting some of the remaining seventeen Uighur detainees currently being held at Guantanamo Bay. The Uighurs, ethnically Turkic Muslins who populate China’s north-west, have been detained at Guantanamo since 2002, despite having no known connection with al Qaeda. Whilst US courts have cleared the way for their release, the United States has been increasingly rebuffed in its resettlement efforts. A plan to resettle up to seven Uighurs in Virginia was recently abandoned. Albania accepted five in 2006, and there are hopes that Germany may accept some in coming months.

Now, for the third time in eighteen months, Australia has been asked to seriously consider assisting in the resettlement of at least ten of the Uighurs. Foreign Minister Stephen Smith has indicated that an assessment will be made on a ‘‘case by case’’ basis.

There are three major issues that arise from this request. The first, and perhaps the most important, would be the legal basis for their resettlement. Any prospect that the Uighurs would be transferred to Australia and kept under detention should be dismissed. They have not been convicted of any crime under US law or appeared before the US Military Commission, and the US courts, the Bush administration, and now the Obama Administration have determined that they no longer pose any threat.

If Australia did accept some of the Uighurs and placed them in detention, the legal basis of doing so would be doubtful, and inevitably would be subject to legal challenge. Ongoing detention may be possible under special Commonwealth legislation, but it is doubtful whether the Rudd government would have the stomach for such an approach.

If the Uighurs were released from Guantanamo as free men who, because of fear of persecution could not be returned to China, then the most obvious legal grounds for Australia accepting them would be as refugees. Entering the country via this legal route means the Uighurs would not be kept in detention or be subject to offshore processing at Christmas Island. This would not bar the Uighurs from being subject to control orders which would place constraints on their movements. In this respect, the gradual integration of the Uighurs into Australian society could be managed in the same way as was David Hicks following his release from Yalata prison in December 2007 when the Australian Federal Police successfully obtained a control order which lasted a year.

The second issue is the domestic political ramifications. Whilst the Coalition is clearly opposed to the US request on national security grounds, Smith seems to be keeping an open mind. Accepting the Uighurs will inevitably create a backlash for Labor from some sectors of the electorate, especially from those communities where the Uighurs may resettle. This is where the government will need to emphasise that if Australians want to be at the front line of the global war on terror in Afghanistan and Iraq then they need to accept that certain responsibilities flow from that in terms of dealing with detained persons and working cooperatively with allies such as the US.

The third dimension is international. Any Australian government could clearly point to our close defence and security relationship with the United States as being a primary factor for accepting the Guantanamo Uighurs. Indeed, Australian forces were actively engaged in Afghanistan in 2001 and 2002 when the Uighurs were detained. Given the unquestioning support of the Howard government for the Bush administration’s conduct of the global war on terror, even if not directly involved in the capture and detention of the Uighurs, Australia clearly supported the ongoing detention of these and other Guantanamo detainees.

Whilst accepting the Uighurs would delight the Americans, it may provoke a reaction from the Chinese who consider them to be terrorists. Smith has argued that Australia would ‘‘put to one side any hypothetical view that a different or third nation state might have’’. This would suggest China’s position on this matter may be irrelevant, but Smith will be aware that there is always a risk that in accepting refugees Australia may offend the homeland to which they can no longer return because of a fear of persecution.

Australia has, of course, accepted refugees from China in the past, most prominently when the Hawke government granted asylum to Chinese students following the 1989 Tiananmen Square riots.

There is another factor which Australia may need to guard against. If China truly considers the Guantanamo Uighurs to be terrorists and a danger to their national security, China may seek their extradition to face criminal charges. Whilst Australia could always deny extradition on technical grounds, this would inevitably create some strains on the bilateral relationship.

For the time being, the Rudd Government needs to ask itself how good a friend it is of the US and what moral obligations it has towards the Uighurs who have been caught up in the global war on terror in which Australia has been an active player and the beneficiary of security intelligence sourced from Guantanamo detainees.