Court says judge can't order Uighurs into the United States

McClatchy NewspapersFebruary 18, 2009 

WASHINGTON — A decision by a federal appeals court Wednesday blocked the release of 17 Guantanamo Bay detainees into the United States and renewed pressure on the Obama administration to deliver on its promise to close the prison.

The ruling applies to a group of Uighurs, a Chinese Muslim minority, who've been imprisoned since May 2002. The men are among scores at the prison whom the military has cleared for release or transfer but who are stuck in limbo because the U.S. government can't find a country to ship them to. The U.S. government and the Uighurs say the detainees can't return to China because they'll be tortured as political dissidents. So far, no other country has agreed to take them.

Judge A. Raymond Randolph of the U.S. Court of Appeals for the District of Columbia Circuit wrote in the majority opinion that courts don't have the authority to order the transfer of foreigners into the United States; only Congress and the executive branch do. A U.S. district judge last fall had ordered the men released and transferred to the U.S.

"An undercurrent of petitioners' arguments is that they deserve to be released into this country after all they have endured at (the) hands of the United States," Randolph wrote. "But such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches."

The ruling raises the stakes for President Barack Obama as he seeks to close Guantanamo within a year.

His administration could continue to try to find another country other than China to take the men, but Sabin Willett, the lead lawyer for the Uighurs, scoffed at the prospect of another country agreeing to take them when the U.S. government itself refuses to allow their release. In a direct appeal to the president, Willett urged him to account for the group's continued detention.

"You cannot duck this, President Obama," Willett said. "Are you for capturing people and hauling them around the globe and holding them in a prison forever without reason? Or are you against it? Which is it?"

Willett slammed the court for issuing an "astonishingly cowardly ruling" and said it raised questions about whether courts had any role in meting out justice for Guantanamo detainees, despite a landmark Supreme Court decision last June that held that the detainees could challenge their imprisonment in habeas corpus court hearings.

In October, U.S. District Judge Ricardo Urbina ordered the immediate release of the men into the United States after such a proceeding, but the Bush administration appealed.

"The appeals court is saying that habeas is an empty and meaningless remedy," Willett said.

Justice Department spokesman Dean Boyd declined to comment on the Uighurs' fate other than to say, "Resettlement negotiations are ongoing with a number of countries."

About 60 detainees have been cleared for release or transfer to other countries but are stuck in custody because of fruitless negotiations with other nations. In the appellate court's majority opinion Wednesday, Randolph noted the administration's efforts, adding, "We have no reason to doubt that it is doing so. Nor do we have the power to require anything more."

The Uighurs were shipped to Guantanamo from Afghanistan after U.S. troops captured them at a weapons training camp. The military accused the group of being members of the East Turkistan Islamic Movement and said that the Taliban ran the camp in Afghanistan's Tora Bora mountains. The Uighurs denied being members of the movement or of receiving support from the Taliban.

The Uighurs also have said that they consider the U.S. an ally in their fight for more political freedom in China.

Declassified documents turned over to their lawyers showed that government officials had concluded as early as 2003 that they weren't enemy combatants and had recommended releasing them.

Jameel Jaffer, the director of the American Civil Liberties Union National Security Project, called Wednesday's decision "a disappointing step back towards the Bush administration's unlawful Guantanamo policies."

Republicans, however, hailed the ruling. Republican Rep. Lamar Smith of Texas, a member of the House of Representatives' Judiciary Committee, praised the court for making it "clear that known terrorists and enemy combatants do not have a legal right to enter the U.S."

The decision was handed down as White House counsel Gregory Craig and other administration officials traveled to the prison in Cuba. The daylong visit included Department of Justice and Pentagon staff members, but the White House declined to release additional names or details.

The visit was "part of an effort to monitor the implementation of the president's plan to strengthen our national security and close the Guantanamo Bay detention facility," White House spokesman Ben LaBolt said.

It wasn't immediately known whether the team was questioning detainees as well as the military at the controversial detention center, which opened Jan. 11, 2002.

The administration is developing a plan to empty the prison of its remaining 245 detainees within a year, but its closure faces legal, diplomatic and practical knots created by the Bush administration's war on terrorism policies.

The Obama administration must decide what to do with detainees who are considered terrorist threats but can't be tried because of a lack of evidence against them or because the evidence is tainted by interrogation methods that some U.S. officials consider torture or is too highly classified to disclose in court.

Obama also must weigh which detainees can be freed and which can be prosecuted, what kind of court to try them in and where to hold them in the U.S.

Attorney General Eric Holder said he planned to visit Guantanamo on Monday to get a sense of how to tackle these questions.

"We need to have our feet on the ground to really see what is going on down at the facility," Holder said. "That will be an important first step as we try to resolve the issues that the president has put before me."

In a separate effort, Defense Secretary Robert Gates has requested a 30-day study on whether the Guantanamo prison camps are in compliance with Geneva Conventions obligations to treat captives humanely.

Meanwhile, Willett traveled to Guantanamo to break the news to his clients.

"They are extremely frustrated," he said. "They have lost hope in the system, and after this ruling who can blame them?"

(Margaret Talev and Carol Rosenberg of The Miami Herald contributed to this article.)

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McClatchy Newspapers 2009

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