A federal appeals court expressed skepticism Monday about a judge's order releasing 17 Turkic Muslims from Guantanamo Bay, Cuba, into the United States.
During oral arguments, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit indicated that a federal judge might have acted too quickly last month in ordering the immediate release of the 17 men, known as Uighurs (WEE'-gurz).
The three judges suggested that the detainees might need to formally apply to enter the country via the Homeland Security Department, which administers U.S. immigration laws.
Such a move would effectively push the issue over to the administration of President-elect Barack Obama, who has indicated he wants to shut down the military prison and release prisoners who have not been charged.
"Before they can be admitted into this country, there are immigration statutes to be addressed and petitioners haven't pursued that yet," said Judge Judith W. Rogers, who previously expressed support for the Uighurs' immediate release.
Solicitor General Gregory Garre told the court that releasing the detainees into the U.S. was a matter for the president — not the courts — given questions of national security and diplomacy.
The Muslims were cleared for release from Guantanamo as early as 2003 but fear they will be tortured if they are returned to China.
"It's regrettable they are in this situation, but we are active in seeking another country to take them," Garre said.
Fear of persecution
At issue in Monday's arguments is whether a federal judge has the authority to order the release of prisoners at Guantanamo who were unlawfully detained by the United States and cannot be sent back to their homeland.
U.S. District Judge Richard Urbina last month ordered the government to release the 17 men into the United States, noting they were no longer considered "enemy combatants." Urbina rebuked the Bush administration for a detention policy toward the Uighurs that "crossed the constitutional threshold into infinitum."
The Bush administration quickly sued to block Urbina's order, citing security concerns over weapons training the Uighurs allegedly received at camps in Afghanistan.
A divided D.C. Circuit court in late October agreed to temporarily halt the Uighurs' release so it could consider the government's full appeal.
That same three-judge panel heard arguments Monday. The panel was composed of Rogers, an appointee of President Bill Clinton, and Karen Henderson and A. Raymond Randolph, both appointees of President George H.W. Bush.
Roughly 20 percent of about 250 detainees who remain at Guantanamo fear torture or persecution if they return to their home countries, according to the New York-based Center for Constitutional Rights. The Bush administration has long maintained that, unless another country agrees to take them, the detainees should stay at Guantanamo.
'No third country of refuge'
Two United Nations investigators recently told the D.C. Circuit court that based on their high-level meetings with foreign governments no third country agreed to provide refuge for the Uighur prisoners.
"It is our view that the United States is under international law obliged immediately to release the Uighur detainees of Guantanamo," Manfred Nowak, the U.N. torture investigator, and Martin Scheinin, the U.N.'s independent investigator on human rights in the fight against terrorism, wrote in court filings.
The Uighurs case is among more than 100 Guantanamo cases currently under review by federal judges after the Supreme Court ruled in June that foreign detainees at Guantanamo have the right to appeal to U.S. civilian courts to challenge their imprisonment.
Last week, a federal judge ordered the release of five Algerian men after rejecting government allegations that they were "enemy combatants." U.S. District Judge Richard Leon also urged the Justice Department not to appeal, saying the detainees had languished at Guantanamo long enough.
