The judge, Ricardo M. Urbina of Federal District Court, ordered that the 17 men be brought to his courtroom on Friday from the prison at Guantánamo Bay, Cuba, where they have been held since 2002. He indicated that he would release the men, members of the restive Uighur Muslim minority in western China, into the care of supporters in the United States, initially in the Washington area.
“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina said.
Saying the men had never fought the United States and were not a security threat, he tersely rejected Bush administration claims that he lacked the power to order the men set free in the United States and government requests that he stay his order to permit an immediate appeal.
The ruling was a sharp setback for the administration, which has waged a long legal battle to defend its policies of detention at the naval base at Guantánamo Bay, arguing a broad executive power in waging war. Federal courts up to the Supreme Court have waded through detention questions and in several major cases the courts have rejected administration contentions.
The government recently conceded that it would no longer try to prove that the Uighurs were enemy combatants, the classification it uses to detain people at Guantánamo, where 255 men are now held. But it has fought efforts by lawyers for the men to have them released into the United States, saying the Uighurs admitted to receiving weapons training in Taliban-controlled Afghanistan at the time of the Sept. 11, 2001, attacks.
The government abandoned it's efforts to prove that the Uighurs were enemy combatants as a result of a ruling this summer by a Federal Appeals Court in Parhat v. Gates, where the court held that one of the Uighurs could not be considered an enemy combatant by the Bush administration because he could not be proven by the administration's own standards to have engaged in hostilities against the United States. Unable to prove even that the men were enemy combatants, unable to prove even that they posed a security risk to the United States (relying instead on the fact that they perhaps posed a risk to China) Judge Urbina, with evident impatience ordered their release at the end of the week. A quote from the opinion (via Marty Lederman):
Normally, . . . the Court would have no reason to insinuate itself into a field normally dominated by the political branches; however, the circumstances now pending before the Court are exceptional. The Government captured the Petitioners and transported them to a detention facility where they will remain indefinitely. The Government has not charged these petitioners with a crime and has presented no reliable evidence that they would pose a threat to U.S. interests. Moreover, the Government has stymied its own efforts to resettle the Petitioners by insisting, until recently, that they were enemy combatants, the same designation given to terrorists willing to detonate themselves amongst crowds of civilians.
The administration even implied that the damage the men's release might have on U.S.-China relations was justification for their detention:
Several pages later in the transcript of today's hearing, the truth seeps out: On page 26 of the transcript, the DOJ lawyer says: "Certainly there would be concerns about our relationship . . . with other countries, say, for example, China, if the Court put the Government in a position of not being able to speak with one voice."
That is to say, allowing the Uighurs to live freely in the U.S. will upset China.
And perhaps it will. But as the Uighurs' counsel Sabin Willett noted, it's one thing to deny someone entry into the U.S. on the basis of such diplomatic considerations where they are voluntarily seeking such entry. But "I'd never heard anyone suggest before that our relationships with other nations are a lawful basis to hold somebody in a prison." Or as the judge simply put it, "an alternative legal justification has not been provided for continued detention."
Of course, it is completely obvious to you and I that the case of these men was never about justice. We have no objection, moral or otherwise, to those who wish to engage in armed insurrection against a dictatorial and totalitarian government (and in fact are quick to support such insurrections when they match our interests.) These men committed no crimes against our nation, pose no threat to our nation, and pose little threat even to the nation that they were at war with. Rather, the Bush administration has merely sought, time and time again, to establish the precedent that it can detain anyone it sees fit for as long as it likes with any justification they may or may not choose to provide, and that judicial (or any) review of their purpose and methods is completely inappropriate (a viewpoint that federal courts have steadily eroded.) If that includes locking up men innocent of a crime until the Bush administration sees fit to release them, or not, then so be it so long as this precedent for dictatorial executive authority is established. I'm sure Vice President Cheney and others would argue (in private, certainly) that the establishment of this authority, even at the cost of a gross miscarriage of justice, is vital to our national security. But there is no security worth the abrogation of our own Constitution, the ideal of which (if not the practice of) is the only thing that presently distinguishes us from self-interested powers of the past centuries.