- The Washington Times - Thursday, February 19, 2009

A U.S. appeals court Wednesday reversed a ruling that would have transferred 17 Guantanamo Bay detainees, none of whom is described as an enemy combatant, to the United States. The ruling makes more uncertain the fate of the Turkic-speaking Muslims from western China.

Because there is no evidence the men plotted or fought against the United States, the government has no authority to hold them at Guantanamo Bay, but deciding what to do with them 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 country 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 prison facility in 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, Judge Urbina 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 order sparked preparation to receive the detainees by residents of the Washington area, thought to have the largest concentration of Uighurs in the country.

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

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 President 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 Wednesday. Adil Hakimjan applied for asylum in Sweden because his sister lives there.

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.

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