In a much-anticipated ruling, a federal appeals court in Washington has reversed a judge's order that the 17 members of the Uighur ethnic group be brought to the US to stay until the new Obama administration is able to find a country willing to accept them.
The decision, announced Wednesday in Washington, leaves the men in a Catch-22. Although a judge ordered them released months ago, they remain detainees at Guantánamo.
The men have been held at the detention camp for nearly seven years despite an apparent lack of evidence of involvement in terrorism. They were sold to the US military by bounty hunters, and a federal judge in Washington concluded they are not dangerous.
In its ruling Wednesday, the appeals court said that US District Judge Ricardo Urbina exceeded his authority when he ordered the government to bring the Uighurs to the US.
"What law authorized the district court to order the government to bring petitioners to the United States and release them here," asked Judge Arthur Randolph, writing for the court.
It is up to Congress and the executive branch to determine immigration policy, not the courts, Judge Randolph said.
The Uighurs are currently housed in the least restrictive conditions at Guantánamo. According to government briefs filed in the case, they are living in a barracks-style section of the detention camp with communal living and access to an "outdoor recreation space" and picnic area. They sleep in an air-conditioned bunk house" and can use a room with a television with VCR and DVD players. They also have access to shower facilities and library materials. But they are not free to leave the camp.
Government lawyers say the Uighurs are no longer being treated as enemy combatants.
The key question faced by Judge Urbina was what remedy is available once a judge orders a Guantánamo detainee to be released.
"An undercurrent of petitioners' arguments is that they deserve to be released into this country after all they have endured at hands of the United States," Randolph wrote. "But such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches."
He added, "We do not know whether all petitioners or any of them would qualify for entry or admission under the immigration laws. We do know that there is insufficient evidence to classify them as enemy combatants.... But that hardly qualifies petitioners for admission [as legal residents of the US]. Nor does their detention at Guantánamo for many years entitle them to enter the United States."
The court concluded: "Whatever the scope of habeas corpus, the writ has never been compensatory in nature."
The court noted that the government says it is continuing to look for a country willing to resettle the Uighurs. "We have no reason to doubt that it is doing so," Randolph said. "Nor do we have the power to require anything more."
In October, Judge Urbina ordered the government to release the 17 Uighurs. In addition, he instructed the government to bring the Uighurs to the US to live while the Bush administration continued its efforts to resettle them.
The US government says it cannot return the men to their native China because, as members of the persecuted Uighur ethnic minority, they are likely to face human rights abuses.
Bush administration officials had told the judge that the government has been working for years to find a country willing to take the men. Some countries have balked for fear of damaging relations with China.
Lawyers working on behalf of the Uighurs have been fighting for their release during the same period. But now that they have won their case to have their clients released from military detention, it remains unclear whether their legal victory will result in actual freedom for their clients.
The decision comes weeks after President Obama took office and ordered the closing of the Guantánamo detention center. Some analysts are urging the new administration to adopt a more sympathetic approach toward the detained Uighurs.
"The new administration must act quickly to remedy the failings of the old," said Emi MacLean of the Center for Constitutional Rights, in a written statement. "If President Obama is committed to closing Guantánamo, he must allow these stranded Uighurs into the United States."
She added, "We are not in a position to ask for the support of other countries in accepting detainees from Guantánamo if we cannot share the burden ourselves."
Several groups have volunteered to assist in their resettlement in the US, including the 600-member Uyghur-American Association. Seventeen Uighur-American families living in the Washington, D.C., area have offered to take the former Guantánamo detainees into their own homes to help resettle them.