East Turkestan: Court Mandates Prolonged Stay
Below is an article published by: The Associated Press
WASHINGTON (AP) — A federal appeals court on Wednesday [25 February 2009] ruled that 17 Turkic Muslims cleared for release from Guantanamo Bay must stay at the prison camp, raising the stakes for an Obama administration that has pledged to quickly close the facility and free those who have not been charged.
In a showdown over presidential power, the U.S. Court of Appeals for the D.C. Circuit said a judge went too far last October  in ordering the U.S. entry of the 17 men, known as Uighurs (WEE'-gurz), over the objections of the Bush administration.
The three-judge panel suggested the detainees might be able to seek entry by applying to the Homeland Security Department, which administers U.S. immigration laws. But the court bluntly concluded the detainees otherwise had no constitutional right to immediate freedom after being held in custody at the facility at Guantanamo Bay, Cuba, without charges for nearly seven years.
"Such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches," wrote Judge A. Raymond Randolph, an appointee of President George H.W. Bush.
Attorneys for the detainees said they were considering whether to appeal the decision to the full appeals court or the Supreme Court. But they made clear it was now time for President Barack Obama to take action after eight years of Bush administration detention policies.
"The ball is in President Obama's court," said Emi MacLean, an attorney with the New York-based Center for Constitutional Rights. "If he is genuinely committed to closing Guantanamo, one clear and immediate step he should take is release the Uighurs into the U.S."
The White House declined to comment on the ruling, citing its ongoing review on closing the Guantanamo prison. Within days of taking office, Obama ordered Guantanamo closed in a year. But he has since been largely quiet on where the hundreds of prisoners — most of whom are being held without charges — should be released if no country is willing to take them.
The State Department has said it is continuing diplomatic efforts to resettle the Uighurs and other detainees in other countries.
At issue in the case was whether a federal judge has the authority to order the release of prisoners at Guantanamo who were unlawfully detained by the United States and cannot be sent back to their homeland. The Muslims were cleared for release from Guantanamo as early as 2003 but fear they will be tortured if they are returned to China.
Earlier this month [February 2009], Beijing warned other countries not to accept the men.
U.S. District Judge Ricardo Urbina in October  ordered the government to release the 17 men into the United States, noting that they were no longer considered enemy combatants. He sternly rebuked the Bush administration for a detention policy toward the Uighurs that "crossed the constitutional threshold into infinitum."
But in Wednesday's [25 February 2009] decision, the three-judge panel made up of one Democratic and two Republican appointees disagreed.
"The government has represented that it is continuing diplomatic attempts to find an appropriate country willing to admit petitioners, and we have no reason to doubt that it is doing so," Randolph wrote. "Nor do we have the power to require anything more."
Judge Judith Rogers, who was appointed by former President Bill Clinton, wrote in a separate opinion that Urbina might have constitutional authority to release the men based on recent Supreme Court rulings. But Rogers said Urbina's decision was premature because he had not yet heard from U.S. immigration officials.
The Supreme Court has held that Guantanamo Bay detainees can go to court to challenge their imprisonment. Wednesday's [25 February 2009] appeals court ruling effectively means that a judge can hear the case but in some instances have no authority to actually free the detainees.
"Today's decision represents a disappointing step back towards the Bush administration's unlawful Guantanamo policies," said Jameel Jaffer, director of the American Civil Liberties Union National Security Project. "These men were cleared for release but have been held without charge in a system that utterly disregards the fundamental tenets of due process."
Roughly 20 percent of about 250 detainees who remain at Guantanamo fear torture or persecution if they return to their home countries, according to the Center for Constitutional Rights. The Bush administration had maintained that, unless another country agrees to take them, the detainees should stay at Guantanamo.
Uighurs are from Xinjiang — an isolated region that borders Afghanistan, Pakistan and six Central Asian nations — and say they have been repressed by the Chinese government. China has long said that insurgents are leading an Islamic separatist movement in Xinjiang. The Uighur detainees were captured in Pakistan and Afghanistan in 2001.
Albania accepted five Uighur detainees in 2006 but has since balked on taking others, partly for fear of diplomatic repercussions from China.
A Swedish immigration court initially granted asylum to one of those men on Wednesday [25 February 2009], although the Swedish migration board is now appealing the decision to a higher court. Adil Hakimjan applied for asylum in Sweden because his sister lives there.