By Del Quentin Wilber and Carrie Johnson
Washington Post Staff Writers
Thursday, February 19, 2009
A federal appeals court yesterday blocked the transfer to the United States of a small band of Chinese Muslims held at the U.S. military prison at Guantanamo Bay, Cuba.
The decision by a three-judge panel reversed a lower court ruling that ordered the government to release the 17 Uighurs and resettle them with Uighur families in the Washington region.
The government no longer considers the Uighurs to be enemy combatants and has been trying to find nations willing to take them in. U.S. authorities do not want to send the men home to China, where they are considered terrorists and may be tortured.
The ruling came the day top government lawyers, including White House Counsel Gregory B. Craig, visited Guantanamo Bay as part of their efforts to determine what to do with the remaining 245 detainees.
Attorney General Eric H. Holder Jr. is visiting the facility Monday. He is in charge of a government task force that will determine who can be released, sent to other countries or charged with crimes. President Obama has said he wants to close the prison within a year.
The appeals court decision yesterday came in a lawsuit brought by the Uighurs, who are challenging their detention in federal court. The panel on the U.S. Court of Appeals for the D.C. Circuit ruled that U.S. District Judge Ricardo M. Urbina had erred in ordering the Uighurs' release into the United States.
Two of the judges, Karen LeCraft Henderson and A. Raymond Randolph, found that Urbina had overstepped his authority in ordering such a remedy. Only the executive branch and Congress have the power to allow people to enter the United States, they said.
"The question here is not whether petitioners should be released, but where," Randolph wrote, adding that the Supreme Court has long "sustained the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms."
In a concurring opinion, Judge Judith W. Rogers wrote that federal judges had the right to order the release of the Uighurs into the country but that Urbina first needed to assess whether the men should be excluded from entry under immigration laws.
Government lawyers have said that because the men trained at a military camp in Afghanistan they would probably be prevented from entering the United States under immigration laws.
The judges sent the case back to Urbina for reconsideration.
One other federal judge has ordered detainees to be released from Guantanamo. U.S. District Judge Richard J. Leon recently ordered the government to engage in diplomatic efforts to transfer six detainees to other countries after he determined that there was not enough evidence to justify their confinement. The government has transferred three of those prisoners.
Human rights advocates and attorneys for detainees said yesterday's ruling will weaken the efforts of other detainees seeking freedom. Absent the power to order the release of detainees into the United States, the Supreme Court's decision in June granting them the right to challenge their confinements before independent judges "is now meaningless," said Susan Baker Manning, an attorney for the Uighurs. "You win and still can't get out," she said.
The Uighurs are natives of northwestern China who have been demanding an independent homeland. The 17 Uighurs were picked up in Pakistan in early 2002 and accused of training at military camps in Afghanistan sponsored by the East Turkistan Islamic Movement, a group that the Bush administration designated a terrorist organization after the men were captured.
They have repeatedly told military officials they are not enemies of the United States. The Justice Department did not produce any evidence to justify their confinement. Government lawyers argued that the president had the power to detain the men until they could be safely transferred to another country.
In ordering their release into the United States, Urbina said in October that diplomatic resettlement efforts had stalled and that the Constitution "prohibits indefinite detention without cause."
P. Sabin Willett, an attorney for the Uighurs, said he and other lawyers have been pressing the Obama administration to let the Uighurs into the country.
An administration official declined to comment on the decision, saying only that Obama "has requested a review of all of these cases, and we're not going to prejudge the outcome of the review and comment on individual cases."
Staff researcher Julie Tate and staff writer Anne E. Kornblut contributed to this report.