It’s not clear whether District Court Judge Ricardo Urbina really had the legal authority to order the release in October of the 17 Chinese muslims, or Uighurs, who’ve been held at Guantanamo Bay for almost seven years — though they were cleared for release back in 2003.
Their case, argued today before the D.C. Circuit Court, presents thorny issues of separations of power, Fordham Law professor and criminal defense expert James Cohen told me today.
As absurd as their situation sounds -– they can’t be returned to China for fear of persecution, but no other country wants them –- the federal judiciary may not have the authority to overrule the executive branch’s order to keep holding them. On the other hand, it may — circuit courts routinely rule the government can’t deport someone, which usually means they get released into the U.S.
But the more important issue is why the U.S. government would want to keep holding 17 Muslims that it long ago admitted are not really “enemy combatants” and who, apparently, have done nothing wrong. In fact, at the district court hearing, the DOJ lawyer said “they should be free to go.” (Just not in my backyard, says the White House.)
At Monday’s hearing, as reported by The Associated Press, Solicitor Gen, Gregory Garre told the D.C. circuit court that only the president (and his Dept. of Homeland Security) has the authority to release detainees into the United States, and that the Bush administration had decided that these men should not be allowed here because they received weapons training in Afghanistan.
Weapons training sounds kind of scary. But if the US government had any reason to believe that they were training in order to shoot weapons at anyone in the United States, then presumably it would still be insisting these men are “enemy combatants.” And they’re not. What’s more, the U.S. has never charged the men with any crime, nor produced any evidence justifying their detentions. (Marty Lederman at Balkinization has an excellent post on the subject.)
Nonetheless, the Justice Department’s brief to the court makes the unsubstantiated claim that they are dangerous, posing a threat to national security. (Notably, the government had declined to offer any evidence to support that claim in the district court.) Not surprisingly, that hasn’t helped the State Department in its efforts to find other countries willing to take the Uighurs in. (The New York Times reported that a State Department official had to cancel a diplomatic trip planned to find a new home for the prisoners as a result.)
Urbina, in October, ordered that the men should be released because “the Constitution prohibits indefinite detention without cause,” and therefore “the government’s continued detention of the [detainees] is unlawful.”
At today’s hearing, the government argued that the Uighurs can apply for entry into the U.S. -– a process that could take many more months –- but that the Bush administration was going to continue to insist that it’s the president’s prerogative to exclude them on national-security grounds.
In the end, this fight appears to be less about whether the group of Chinese Muslims present any real danger to the United States, and more about President George W. Bush holding on to his arguments about the supremacy of executive power for as long as he possibly can.
Even if the government wins this case, though, the ordeal for this group of detainees may soon be over. Once the Obama administration assumes power, it will be up to a new Justice Dept. — and a new Dept. of Homeland Security, if the D.C. circuit kicks the decision over to the immigration authorities — to decide their fate. (SCOTUS blog reports that the court today didn’t seem inclined to grant the Uighurs’ request.)
A new Obama administration, eager to show that it intends to respect the U.S. Constitution and international law, isn’t likely to keep this group of Uighurs detained for much longer.