This week could see a remarkable moment in American legal history, as 17 Guantanamo detainees are on the verge of being let out of prison. On Tuesday, a federal judge ordered the men released into the U.S. and told the Bush administration to produce the men in his courtroom Friday morning.
The detainees are 17 Chinese Muslims, known as Uighurs, who have been held at Guantanamo Bay in Cuba for nearly seven years. In past decades, the U.S. government has treated the group as Chinese nationalists. But in 2003, in an effort to accommodate the Communist Chinese government, the Bush administration listed one of the Uighur groups as a terrorist organization, using the designation as a rationale for the Uighurs' continued detention at Guantanamo.
However, a largely conservative panel of the federal appeals court in Washington, D.C., ruled in June that the group is not hostile to the U.S. and that the administration had produced no reliable information to justify holding the Uighurs. The case was then sent back to a lower court for further action, including the possibility of release.
Federal Judge Ricardo Urbina said Tuesday that, in essence, enough is enough. Whatever authority the government may have had for detaining the Uighurs has ceased, he said.
The government now concedes these men are not enemy combatants, Urbina noted, and has provided no other justification for detention.
Uighurs living in the United States have arranged for 17 families to take the men until more permanent arrangements can be made. Urbina said he would hear from the Department of Homeland Security as to any conditions it would like imposed on the men after release — conditions that could include a ban on travel and requirements that the men report to authorities on a regular basis. The judge reacted angrily, however, when Bush administration lawyers suggested they could imprison the men in the U.S. once the Uighurs are transferred here. It is expected he will forbid that.
As luck would have it, one of the lawyers for the Uighurs was in Guantanamo on Tuesday and told the men of their court victory. The lawyer is not permitted to talk about the men's reaction by phone under classification rules.
The Chinese government on Tuesday again demanded that the men be returned, but the U.S. has refused because it concedes they would be tortured and possibly killed. The Chinese government sees the Uighurs as a threat because many of them want greater autonomy from Beijing.
No other country has been willing to take the men because of fears that the Chinese would retaliate, leaving the U.S. as the only place the men can be released. But the Bush administration says the courts have no power to order that — that this is simply beyond the powers of the judicial branch.
Urbina rejected the administration's request to put his order of release on hold while the government appeals. This would only mean more delay, he said, and delay has been the name of the game for nearly seven years. So now the administration is moving up the ladder, going first to the appeals court for a stay of the order.
But as one of the Uighurs' lawyers, Sabin Willett, observes, the posture of this case is unusual.
"It's very rare that you go up to a reviewing court, and that court's already looked at the case and has said, I think this is pretty near a direct quote, 'There is no question the district judge will have the power to order them released,' " Willett says.
If the administration fails to win a stay in the appeals court, it will likely go to the U.S. Supreme Court. But in June, the high court ruled in another Guantanamo case that detainees have the right to have their cases heard quickly because, as the court put it, the costs of delay can no longer be borne by those who are in custody.
If either the appeals court or the Supreme Court grants the administration's motion to temporarily block Urbina's order, it would likely mean the issue will be kicked over to the next administration, and the Bush administration will leave its tangled and at least partially discredited detention policies to be untangled by its successors.