By Del Quentin Wilber
Washington Post Staff Writer
Wednesday, October 8, 2008
A federal judge yesterday ordered a small band of Chinese Muslims being held at the Guantanamo Bay military prison released into the United States by Friday, rejecting the Bush administration's contention that it could detain them indefinitely without cause.
It was the first time a U.S. judge has ordered the release of a Guantanamo Bay detainee, and the first time a foreign national held at the facility in Cuba has been ordered transferred to the United States.
U.S. District Judge Ricardo M. Urbina issued his ruling in dramatic fashion from the bench in a packed courtroom, saying he was ordering the release of 17
Uighurs because the government provided no proof that they were enemy combatants or security risks. Under the order, the men will live with Uighur families in the Washington area until a more permanent situation can be found.
"Because the Constitution prohibits indefinite detention without cause, the government's continued detention of the [detainees] is unlawful," Urbina said. "Because separation-of-powers concerns do not trump the very principle upon which this nation was founded -- the unalienable right to liberty -- the court orders the government to release the [men] into the United States."
Urbina ordered the detainees and the Uighur families to appear in his courtroom Friday. A Defense Department spokesman said the military is working with other government agencies to prepare for the detainees' move to Washington.
But the Justice Department said it is filing an emergency appeal, because the judge's decision "presents serious national security and separation-of-powers concerns." A White House spokeswoman issued a statement saying that "we are deeply concerned by, and strongly disagree with" the ruling.
In court hearings leading up to yesterday's ruling, the government argued that only President Bush has the authority to allow the men into the country. In addition, U.S. law would deny the
Uighurs entry because they trained at camps sponsored by the East Turkistan Islamic Movement, a group that the Bush administration designated a terrorist organization after the men were detained, the lawyers have argued.
The Uighurs' attorneys, human rights groups and members of Congress from both parties have advocated for their release, saying the men have no conflict with the United States and have been detained unfairly for too long. The 17 Uighurs (pronounced "WEE-gurz") have been held at the Cuban prison for nearly seven years since they were picked up in Pakistan.
The government has cleared 60 of about 255 remaining Guantanamo Bay detainees for release, including the Uighurs. But unlike other captives, the separatist
Uighurs cannot be sent to their homeland because the Chinese government considers them terrorists and might torture them. The United States sent five
Uighurs to Albania in 2006, but no other country wants to risk offending China by accepting the others.
Calls to the Chinese Embassy media office were not answered.
Over the years, more than 500 detainees have left Guantanamo Bay for their home countries, an unknown number of whom were ultimately set free. Only one captive, Yaser Esam Hamdi, a Saudi, was moved from Guantanamo Bay to the United States, after authorities determined he held U.S. citizenship. He was eventually deported to Saudi Arabia and relinquished his U.S. citizenship.
Although the White House warned that the ruling could be used to secure other detainees' release into the United States, legal experts have said that is unlikely because the Uighurs' circumstances are unique.
Rep. Dana Rohrabacher (R-Calif.), who has been working for the Uighurs' release with Rep. Bill Delahunt (D-Mass.), said yesterday that Urbina "made the morally right decision.
"We should offer the Uighurs an apology," he said.
About 400 Uighur families live in the Washington area, mostly in Northern Virginia. There are smaller Uighur concentrations in the District and the Maryland suburbs.
"The American legal system has given us justice," said Ilshat Hassan, 46, a Uighur who works for a large consulting firm and will take one of the detainees into his McLean home.
An appeals court determined in June that one of the Uighurs, Huzaifa Parhat, was not an enemy combatant and must be released, transferred or given a new military hearing because evidence used to justify his detention was flimsy and unreliable.
The three-judge panel found that "it is undisputed that he is not a member of al-Qaeda or the Taliban, and that he has never participated in any hostile action against the United States or its allies." In the months after the ruling, the government determined that it would not treat the Uighurs at Guantanamo Bay as enemy combatants.
Yesterday's hearing was required under a Supreme Court ruling in June that the detainees had the right to challenge their detention in federal courts. Scores of other detainees have filed to do so.
Because the government did not produce evidence to justify the Uighurs' confinement, Urbina faced two options: release them into the United States or allow them to remain confined without cause.
The judge's ruling came somewhat as a surprise because many expected him to hear legal arguments and testimony yesterday. But it was clear from the beginning that he had made a decision.
When legal arguments were completed, Urbina sat quietly and then began issuing his order. "After detaining 17 Uighurs . . . for almost seven years free from judicial oversight, the moment has arrived to shine the light of constitutionality," he said.
The judge then rejected the Justice Department's arguments one by one, noting that the government's efforts to resettle the men have been unsuccessful and that there was "no foreseeable date by which they may succeed."
He also noted that the government has not charged the men with crimes and that it has not produced evidence justifying their detentions. "The unilateral, carte blanche authority the political branches purportedly wield over the Uighurs is not in keeping with our system" of government, he said.
Later, Urbina chastised Justice Department lawyer John O'Quinn for suggesting that immigration authorities might be compelled to arrest the Uighurs on U.S. soil because of their alleged ties to the terrorist organization.
"I would not take that kindly," Urbina said. He ordered immigration officials to stay away from the Uighurs until a follow-up hearing on Oct. 16 at which he will hear testimony from the Justice Department and the Department of Homeland Security about how to monitor them.
Staff researcher Julie Tate contributed to this report.