A dispute over what to do about 17 Chinese Muslims detained at the Guantánamo Bay military prison is developing into a major showdown over the power of the judiciary to enforce fundamental constitutional rights in the war on terror.
The 17 men, all members of the oppressed Uighur ethnic minority in western China, have been held as enemy combatants by the US military for seven years, despite their insistence that they are not enemies of the US.
On Tuesday, a federal judge in Washington, D.C., ordered the government to release the men. But US District Judge Ricardo Urbina didn't stop there. He also ordered the government to bring the Uighurs physically from Guantánamo Bay, Cuba, to his courthouse chambers on Friday where they would be allowed to walk as free men out the front door and down the steps of the courthouse.
Justice Department lawyers filed an emergency appeal. "The government should not be forced to take the extraordinary step of bringing 17 aliens trained for armed insurrection against their home country [China] to be released in Washington, D.C., without the opportunity for this court's full appellate review of the crucial and novel legal questions presented," the lawyers said in their brief.
On Wednesday, the appeals court halted the men's release and instructed lawyers for the detainees and the government to file a new set of briefs.
The showdown over the Uighurs arises less than four months after the US Supreme Court handed down a landmark decision, Boumediene v. Bush, extending the constitutional right of habeas corpus review to terror suspects being held at Guantánamo Bay.
Habeas corpus requires that the government justify before a neutral judge why it is depriving an individual of his or her liberty. If the judge finds insufficient support for the deprivation, the judge is authorized to order the prisoner released.
There is no doubt in the Uighur case that Judge Urbina has the power to order the release of the 17 men being detained as enemy combatants. But the central issue in the looming dispute is whether the judge overstepped his authority when he ordered the government to bring the men to the US.
By merely arriving in the US, the Uighurs would be entitled to a broader array of freedoms and legal safeguards than if they remain outside US borders.
Government lawyers are concerned that if Urbina's order to bring the Uighurs to the US is upheld, it might encourage other Guantánamo detainees to do the same.
The Uighurs have been in a legal limbo at Guantánamo for years.
At the time of the US military intervention in Afghanistan, the men were living in camps allegedly run by the East Turkistan Islamic Movement, which the Chinese government says is an Islamic terror group.
The 2001 bombing raids forced them to flee to Pakistan, where local villagers turned them over to the US military for a $5,000 bounty for each.
Lawyers for the Uighurs say they never took hostile action against the US, though they received weapons training at the camps.
Urbina in his order suggests the military's evidence against the Uighurs is weak. "This court recognizes that the [Uighurs] acquired weaponry skills at 'training camps' in Afghanistan after fleeing China, but will not draw adverse inferences based on other unsubstantiated allegations," the judge writes.
In their appeal, government lawyers say the Uighurs "sought to wage terror on a sovereign government [China]." Lawyers for the Uighurs denounced the government's charge as unsourced and provocative.
Where should Uighurs go?
Despite this statement, the government says it no longer seeks to detain the Uighurs as enemy combatants and is "diligently" searching for a third country to accept them. The State Department has contacted nearly 100 countries. The Chinese government is asking that the men be sent back to China, but the US has refused that option out of concern that they might be subject to human rights abuses.
Lawyers for the detainees complain that the government is taking too long to find a third country. They suggested that rather than keeping the men in indefinite detention at Guantánamo, they be permitted to stay in the US with Uighur families and other supporting groups pending relocation to a third country.
In embracing that option, Judge Urbina acknowledged that "normally … the court would have no reason to insinuate itself into a field normally dominated by the political branches."
But the Uighurs' circumstances were "exceptional," he said. The case "strikes at the heart of our constitutional structure, raising serious separation of powers concerns."
Justice Department lawyers said in their brief that the power to admit an alien into the US resides with the political branches of government, not the judiciary.