Can US judges order detainees released?

At the heart of the case is a clash between the power of a federal judge to order a meaningful remedy – freedom – and the power of the government's political branches to undercut a judicial order by enforcing policies that conflict with that order.

The case highlights the rising influence of federal judges in counterterrorism policy since June, when the US Supreme Court gave Guantánamo detainees a right to challenge the legality of their detentions.

The case also arises at time when the new administration of Barack Obama is preparing to take office in late January. The president-elect has said he wants to close Guantánamo, and some analysts are hopeful that his administration will adopt a more sympathetic approach to the Uighurs' plight.

Last week, Attorney General Michael Mukasey urged Congress to pass a law to block federal judges from admitting former Guantánamo detainees into the US.

"Where a court finds that a detainee cannot be held as an enemy combatant, he should be returned to his home country or another country willing to receive him," Mr. Mukasey wrote in a Wall Street Journal op-ed essay. "He should not be permitted to jump the immigration line and enter this country."

The problem, according to lawyers for the Uighurs, is that a federal judge can order someone released from Guantánamo but can't order a foreign country to accept the freed detainee. "Thus, if the executive [branch] cannot or will not arrange those remedies, the district court must reserve a power to give an effective remedy," writes Boston lawyer Sabin Willett in his brief to the appeals court.

He says unless judges in Guantánamo habeas cases have the power to order real freedom, executive branch officials may use their authority to "switch the Constitution on or off at will."

Justice Department lawyers say issues of foreign policy and national security are entrusted to Congress and the executive branch, not the courts. "The power to allow aliens into the United States rests exclusively in the political branches," writes Solicitor General Gregory Garre in his brief. "The political branches have made a judgment that [the Uighurs] should remain housed in relatively unrestricted conditions at Guantánamo, pending the successful conclusion of ... diplomatic efforts" to resettle the men in a third country, he says.

In the meantime, he adds, the Uighurs have no statutory or constitutional right to enter the US.

Mr. Willett says the political branches can't strip judges of their power to decide cases and order remedies.

"The hour is late," he writes. "If ever a case asked whether judicial review under our Constitution is real, it is the case of the Uighur prisoners still stranded at the Guantánamo prison."

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