WASHINGTON — In a dramatic setback for the Bush administration, a federal judge ordered the U.S. government Tuesday to immediately release and transfer to the United States 17 Chinese-born Muslims detained for almost seven years at Guantánamo.
The decision marked the first time a court has ordered the transfer of Guantánamo detainees to the U.S. and could prompt the release of dozens of other Guantánamo detainees who have been cleared for release by the military but who can’t leave because the government hasn’t found a country to send them to.
Judge Ricardo Urbina declared the continued detention of the group from the ethnic Uighur minority to be “unlawful” and ordered the government to bring the detainees to the U.S. by Friday.
Reading his decision from the bench, Urbina said the government could no longer detain the Uighurs after conceding they weren’t enemy combatants. The judge also agreed with the Uighurs’ lawyers, who’ve argued the group can’t be returned to China because they could be tortured.
Urbina warned the government not to attempt to circumvent the group’s release by detaining them on immigration holds once they reach the U.S., saying “no one is to bother these people until I see them.”
Administration officials said they intend to file an "emergency motion" Tuesday night with the federal appeals court in Washington to block the ruling.
"This decision, we believe, is contrary to our laws, including federal immigration statutes passed by Congress," said White House spokeswoman Dana Perino. "The district court’s ruling, if allowed to stand, could be used as precedent for other detainees held at Guantánamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country."
Urbina, who at times during the hearing appeared to scold Justice Department lawyers, noted the government hadn’t charged the detainees with any crime, revealed any evidence justifying their detention and then “stymied” their release by continuing to assert erroneously that they were enemy combatants.
When government lawyers started to raise security concerns, the judge challenged them to specify what they were, chiding them that “you’ve had seven years to study this.”
He described the government’s use of certain legal jargon as “Kafkaesque,” saying it “begs the question of whether they ever were enemy combatants.”
Supporters from the Uighur-American community who attended the hearing reacted to his ruling with loud applause and cheers.
“The American system has given us justice,” said Rebia Kadeer, president of the World Uighur Congress.
Citing “serious separation-of-power issues,” Justice Department lawyers immediately requested a delay to allow the government time to consider whether to appeal. The judge, however, refused and instead set a hearing to determine the conditions of release.
Despite the prospect of the government’s appeal, Kadeer said: “I believe they will be released.” Kadeer, a leader of the expatriate Uighur community, was once detained for several years in a Chinese prison as a political dissident, but released and sent to the U.S. after the State Department pressured the Chinese government.
Urbina, a Clinton appointee, said the men will be permitted to stay with Uighur families in the Washington area, but will be expected to check in with the court on a regular basis. Next week, the court will consider whether to impose other conditions of their release.
The Uighurs were first shipped to Guantánamo from Afghanistan after their capture by U.S. troops at a weapons training camp. The military accused the group of being members of the East Turkistan Islamic Movement and said the camp in Afghanistan's Tora Bora mountains was run by the Taliban. But the Uighurs denied being members of the group and receiving support from the Taliban.
The Uighurs also have insisted that they consider the U.S. to be an ally in their fight for more political freedom in China. Declassified documents turned over to their lawyers showed that as early as 2003 government officials had concluded they were not enemy combatants and had recommended releasing them.
Attorneys representing the group hailed the ruling as landmark and predicted it could lead to other releases.
“The decision is extraordinary,” said Neil McGaraghan, one of the attorneys. “This is finally a step toward justice.”
The decision comes after a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit overturned as “invalid” a military tribunal's conclusion that one of the prisoners, Huzaifa Parhat, is an enemy combatant. The court, the same one that could hear the department's appeal, directed the Pentagon either to release or transfer Parhat or to hold a new tribunal hearing “consistent with the court's opinion.”
After the appellate ruling, the government conceded that it no longer considered any of the Uighurs enemy combatants.
However, Justice Department lawyers continued to argue Tuesday that the release of the group into the U.S. could pose a security risk and warned that the decision could harm international relations with China. The judge dismissed both arguments. Justice Department lawyer John O’Quinn said he did not mean to suggest that the government would immediately move to detain the group once they were in the U.S.