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 comes 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.