Seven Years and Counting!

By William Fisher

Seventeen Chinese Muslims who have been imprisoned at Guantanamo Bay for seven years will now have to wait still longer to discover whether a U.S. appeals court will confirm or reverse a judge’s earlier decision that they be immediately released into the United States.

Yesterday, a split federal appeals court refused to allow the immediate release into the U.S. of the 17, which means they will remain in prison for at least several more weeks.

In a 2-1 decision, the U.S. Court of Appeals for the D.C. Circuit agreed with the Bush administration’s argument that the Muslims' release should be halted while the government prepares its full appeal. The court will hear oral arguments on Nov. 24.

Meanwhile, lawyers for the detainees were said to be considering other options. It has been reported that an appeal directly to the Supreme Court might be a possibility, since that court ruled last June that foreign detainees at Guantanamo have the right to appeal to federal judges to challenge their imprisonment.

Two appointees of the first President Bush voted to halt the detainees' immediate release. They are Judges Karen Henderson and A. Raymond Randolph.

But in an outspoken dissent, Judge Judith W. Rogers argued that the detainees should be freed. She noted that the Bush administration had acknowledged the Uighurs were no longer considered enemy combatants even as it continued to argue the detainees were a national security risk based on little more than the fact they had admitted to receiving weapons training in Afghanistan.

"The fact that petitioners received firearms training cannot alone show they are dangerous, unless millions of United States resident citizens who have received firearms training are to be deemed dangerous as well," Rogers wrote. "And, in any event, the district court found there is no evidence petitioners harbor hostility toward the United States."

She added that the government's appeal was problematic "given both the length of time that petitioners have been denied their liberty" and the years the government has already had up to now — with little success — to justify the Uighurs' continued imprisonment.

Judge Rogers was appointed by President Clinton.

The appeals court's move came after U.S. District Judge Ricardo M. Urbina
on October 10 ruled that the government should free the detainees immediately and ordered them brought physically to his court. Urbina said it would be wrong for the Bush administration to continue holding the Uighurs since they are no longer considered enemy combatants.

The detainees were days away from being released when the government requested and received a stay of Judge Urbina’s ruling to allow time for an appeal.

Lawyers for the Uighurs had carefully set up arrangements for the Uighurs’ to be placed in the custody of religious organizations and individuals in the U.S.

Among the central issues in the case is whether a federal judge has the authority to order the release of Guantanamo prisoners who were unlawfully detained by the U.S. and cannot be sent back to their homeland. The Uighurs, who are Turkic-speaking Muslims in western China, have been cleared for release from Guantanamo but fear they will be tortured if they are turned over to China.

Also at issue is the potential use of immigration law by the government to prevent the Uighurs from entering the U.S. It is possible they could be freed into the U.S. by a federal court, but then immediately re-arrested, detained and ultimately deported because they had not been legally admitted into the U.S.

Judge Urbina’s ruling may yet become one of the historic decisions in U.S. jurisprudence. He wrote, ”There come a time when delayed action prompted by judicial deference to the executive branch's function yields inaction not consistent with constitutional imperative. Such a time has come in the case of the 17 Uighurs in Guantanamo Bay, Cuba...whom the government has held for seven years without an opportunity for judicial redress until recently."

Urbina noted that it was the government that decided that it would no longer consider the 17 Uighurs as enemy combatants.

After the Supreme Court's decision in Boumedienne v. Bush -- restoring the court's jurisdiction over habeas corpus petitions -- the Uighurs filed motions alleging that their continued detention was unlawful and requesting the court order the government to release them into the U.S.

Urbina ruled that "Because the Constitution prohibits indefinite detention with just cause…continued detention of the petitioners is unlawful."

"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 petitioners into the U.S," he wrote.

The Bush administration has said it was continuing "heightened" efforts to find another country to accept the Uighurs.

Albania accepted five Uighur detainees in 2006 but since has balked at taking others. Other nations are said to have followed the same tack, reportedly out of fear of diplomatic repercussions from China. Foreign policy experts have also noted that the U.S. appears to have greatly diminished leverage in the world community to persuade other countries to accept the Uighurs.

Uighurs are from Xinjiang — an isolated region that borders Afghanistan, Pakistan and six Central Asian nations. They say they have been repressed by the Chinese government. China long has said that insurgents are leading an Islamic separatist movement in Xinjiang. The Uighur detainees were captured in Pakistan and Afghanistan in 2001.

The possibility that Judge Urbina’s decision will prevail cannot be ruled out. From time to time, a decision of a lower court judge is reversed by an appeals court – but ultimately affirmed by the Supreme Court.

David Cole, a law professor at Georgetown University and one of the Uighurs’ attorneys, told us that this is precisely what happened in another landmark Guantanamo case, Hamdan v. Bush.

“Surprisingly,” Cole said, “Hamdan prevailed in the district court, when U.S. District Judge James Robertson courageously ruled that trying Hamdan in a military tribunal of the kind set up by the government would violate the Geneva Conventions.”

But Cole added that, “Not surprisingly, that decision was unanimously reversed, on every conceivable ground, by the Court of Appeals for the D.C. Circuit, in an opinion joined fully by then Judge, now Chief Justice, John Roberts.”

He noted that after the Supreme Court agreed to hear the Hamdan case, Congress passed a law that appeared to be designed to strip the Supreme Court of its jurisdiction to do so. The law “required defendants in military tribunals to undergo their trials before seeking judicial review, and prescribed the D.C. Circuit as the exclusive forum for such review,” Cole said.

But in June 2008, the Supreme Court ruled 5-4 that the Military Commissions Act of 2006 unconstitutionally limited detainee's access to judicial review and that detainees have the right to challenge their detention in conventional civilian courts.

Salim Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan, was charged at Guantanamo, tried last August before the first Military Tribunal, convicted of aiding terrorism but acquitted on a charge of conspiring to commit terrorist attacks including those on Sept. 11. Given credit for years already served, Hamdan could be eligible for release before the end of 2008.

In a related and far-reaching development, President George W. Bush today announced that his administration would in effect “kick the Guantánamo can down the road” – and not close the notorious prison.

Quoting senior administration officials, newspapers reported that Bush never considered proposals drafted by the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.

According the U.S. media, Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.

The effect of Bush’s decision is to retain a prison that has become a worldwide negative icon for the administration’s fight against terrorism.

The decision also leaves another major foreign policy dilemma for the next president. Both Senators John McCain and Barack Obama have called for closing Guantánamo. Either candidate could reverse Mr. Bush’s policy, but neither has discussed how he would deal with the legal consequences of shutting the prison. The principal issue is where to imprison and/or try the remaining approximately 255 Guantanamo detainees, many of whom have already been declared eligible for release.