- The Washington Times - Wednesday, February 18, 2009

A U.S. appeals court reversed a ruling Wednesday that would have transferred 17 Guantanamo Bay detainees, none of whom are labeled enemy combatants, to the United States. The ruling casts further uncertainty on the fate of the Turkic-speaking Muslims from western China.

Because there is no evidence they plotted or fought against the United States, the government has no authority to hold them at Guantanamo Bay, but deciding what to do with the men has been a diplomatic problem for years.

The military says the men have ties to a militant group that demands separation from China. The United States will not release the Uighurs to their home for fear they will be tortured. Earlier this month, Beijing warned other countries not to accept the men, creating a potential diplomatic roadblock to President Obama’s plan to close the facility at Guantanamo Bay, Cuba, within a year.

U.S. District Judge Ricardo Urbina ruled in October that, since they are not enemy combatants, the Uighurs must be released to the United States, but the U.S. Court of Appeals for the District of Columbia Circuit overturned that ruling.

Only the executive branch, not the courts, can make decisions about immigration, the appeals court said. That fact doesn’t change, the court said, simply because the United States has held the men for years without charge.

“Such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches,” Judge A. Raymond Randolph wrote.

The decision has ramifications beyond the Uighurs. The Supreme Court has held that Guantanamo Bay detainees can go to court to challenge their imprisonment. The ruling, however, says a judge can hear the case but has no authority to actually free the detainees.

In ordering the Uighurs released last year, Judge Urbina strongly rebuked the Bush administration for holding men who were not enemy combatants indefinitely without charge.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for the detention,” he said. “There is a pressing need to have these people, who have been incarcerated for seven years, to have those conditions changed.”

The appeals court ruled that Judge Urbina lacked the authority to right that wrong.

“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,” Judge Randolph wrote. “Nor do we have the power to require anything more.”

The court, made up of one Democratic and two Republican appointees, unanimously overturned Judge Urbina’s decision. But Judge Judith Rogers, who was appointed by former President Bill Clinton, wrote a separate opinion saying Judge Urbina had the authority to release the men but only after hearing from U.S. immigration officials.

The U.S. released four Uighurs from Guantanamo Bay in 2006, sending them to Albania because it was the only country that would take them. A Swedish immigration court granted asylum to one of those men on Wednesday. Adil Hakimjan applied for asylum in Sweden because his sister lives there.

He is hopeful, though, that the Obama administration will act on its own to accept the Uighurs without judicial intervention. Uighur-Americans throughout the United States have already agreed to serve as host families.

Nury Turkel, a Washington lawyer and former president of the Uyghur American Association, said the Obama administration should act on its own to accept the Uighurs into the U.S. without judicial intervention.

If Mr. Obama follows through with plans to close the Guantanamo prison in the next year and persuade other countries to accept some of the detainees, the United States must be willing to do the same, Mr. Turkel said, and the Uighur case provides a perfect opportunity.

“This is a case that has been crying out for a remedy for a long, long time,” he said.

Associated Press writer Matthew Barakat contributed to this report.

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