By Del Quentin Wilber
Washington Post Staff Writer
Tuesday, November 25, 2008
A Justice Department lawyer urged an appeals court yesterday to overturn a judge's decision to release a group of Chinese Muslims at the U.S. military prison at Guantanamo Bay into the United States.
Solicitor General Gregory G. Garre contended that U.S. District Judge Ricardo M. Urbina had overstepped his authority in ordering the release of the 17 men, all Uighurs, a group that seeks a separate homeland in western China. Garre argued that only the president and Congress have such power.
The government "has the authority to hold these men pending resettlement efforts," he told the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, calling Urbina's ruling "an unprecedented order."
The government is appealing Urbina's October decision to release the Uighurs, who have been held at the Cuba facility for nearly seven years. The United States no longer considers the men enemy combatants and would like to release them. But it will not send them back to China, where the government considers them terrorists and where they might be tortured or killed, and it has been unable to find another country willing to take them.
Albania accepted five Uighurs in 2006, but other countries have refused for fear of offending China. When the government provided no evidence to justify the Uighurs' continued detention, Urbina ordered their transfer on Oct. 7 to the Washington area, where they would have been resettled temporarily with Uighur families.
The appeals court stayed Urbina's ruling by a 2-to-1 vote, and it appeared from the questioning of lawyers yesterday that the judges might be inclined to overturn Urbina's decision. Judges A. Raymond Randolph and Karen LeCraft Henderson, appointees of Republican presidents, seemed sympathetic to the government's arguments. Judge Judith W. Rogers, a Clinton appointee, dissented from issuing the stay and appeared more skeptical.
The Uighurs' lead attorney, P. Sabin Willett, argued that Urbina was within his authority to grant the release. Willett said judges have the power to order such relief under a Supreme Court decision in June that gave the detainees the right to challenge their detentions in federal court under the legal doctrine of habeas corpus.
Willett argued that the Uighurs (pronounced WEE-gurz) should not be held at the military prison while the government tries to find them a new home.
"The fact is, they have nowhere else to go," said Willett in urging the judges to uphold Urbina's ruling and send the men to Washington.
Garre said the government was working hard to find other countries willing to accept the Uighurs. But it will be a tough sell, especially after the Justice Department said in court papers that the men were too dangerous to be admitted into the United States.
U.S. officials have said the men received weapons training at military camps run by the East Turkistan Islamic Movement, which the government designated a terrorist organization in 2004. Garre said immigration law prohibits people who received such training from entering the country.
Willett said the men received the kind of weapons training that U.S. citizens can receive at gun ranges and are not dangerous.
The judges did not indicate when they expected to rule in the case.