Unable to End 'Unlawful' Detention, Judge Says

By Josh White
Washington Post Staff Writer
Friday, December 23, 2005

A federal judge in Washington ruled yesterday that the continued detention of two ethnic Uighurs at the U.S. prison facility at Guantanamo Bay, Cuba, is "unlawful," but he decided he had no authority to order their release.

U.S. District Judge James Robertson criticized the government's detention of Abu Bakker Qassim and Adel Abdu Hakim, who have been jailed at Guantanamo for four years; they have been cleared for release because the government has determined they are not enemy combatants and are not a threat to the United States. But Robertson said his court has "no relief to offer" because the government has not found a country to accept the men and because he does not have authority to let them enter the United States.

Robertson wrote that the government has taken too long to arrange a release for the men, who cannot return to their Chinese homeland because they would likely be tortured or killed there. U.S. authorities have asked about two dozen countries to grant the men political asylum, but none has accepted, in part out of fear of angering China.

The Uighurs -- along with seven other detainees who have been found to be "no longer enemy combatants" -- are in Guantanamo's Camp Iguana, a less-restrictive area of the prison. They were cleared by a combatant status review tribunal about nine months ago, but no solution for their release has been reached. Robertson wrote that their situation is untenable.

"The detention of these petitioners has by now become indefinite," Robertson wrote in a 12-page opinion. "This indefinite imprisonment at Guantanamo Bay is unlawful."

In a hearing last week, Robertson called the cases of the Uighurs (pronounced wee-gurs) a "classic dilemma" and proposed allowing them restricted asylum in the United States. He rejected that concept yesterday, deciding that the executive branch has control over immigration and that such a move "would have national security and diplomatic implications beyond the competence or the authority of this Court."

Robertson believes that his court has nothing to offer such cleared detainees because the Supreme Court, in its landmark 2004 ruling Rasul v. Bush , did not decide what relief might be available to Guantanamo Bay detainees who file habeas corpus petitions, nor what to do with those who are determined to be "no longer enemy combatants."

The judge also lashed out at the military's term for those who pose no threat. "The government's use of the Kafka-esque term 'no longer enemy combatants' deliberately begs the question of whether these petitioners ever were enemy combatants," he wrote, adding that there is nothing that shows the government could fear their return to battle.

Both men were captured as they tried to head toward Pakistan while fleeing Afghanistan in late 2001, allegedly after training for combat with the Taliban. The Uighurs have been in a struggle with the Chinese government over their homeland, and China considers them terrorists. Numerous Uighurs have sought asylum in the United States, and they have a small community in the Washington area.

Yesterday's opinion was moved into the record quickly because the detainees' lawyers feared that pending legislation headed for President Bush's desk could strip their clients of the ability to ask the federal courts for assistance. Language added to the Defense authorization bill, which has been approved by Congress, would restrict Guantanamo detainees' access to U.S. courts.

Military law experts fear that the language, written by Sens. Lindsey O. Graham (R-S.C.) and Carl M. Levin (D-Mich.), could allow the government to hold detainees at Guantanamo indefinitely. Seton Hall law professor Baher Azmy, who represents a Guantanamo detainee, called the legislation "outrageous" and said it could leave detainees with little to no legal protection.

"This frees the government to bring anyone it wants to Guantanamo, which is why they chose it in the first place," Azmy said. "It could end up as a place beyond the law where the executive branch can do whatever it wants to do."

Graham has said he believes suspected foreign terrorists should not have access to U.S. courts, except to have their combatant status reviewed and for limited appeals of military commission verdicts. Graham, instead, advocates more congressional oversight.

"We're not going to turn the war on terror over to the judges," Graham said in a conference call with reporters last week. "If you're an enemy combatant, they will look at your case every year. If there's someone who is there untold years, Congress will get involved."

Robertson, in the Uighurs' case, found he has no option but to allow the detainees to appeal to the U.S. Court of Appeals. Ultimately, the Clinton appointee's ruling leaves the men at Guantanamo indefinitely.

"The question in this case is whether the law gives me the power to do what I believe justice requires," Robertson wrote. "The answer, I believe, is no."

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