Abetting the unfairness of the U.S. treatment of inmates at the Guantanamo Bay detention center, a federal appeals court has ruled that the government may continue to imprison 17 Chinese Muslims even though it no longer considers them enemy combatants. Fortunately, the Obama administration has the authority to cut through the legal knot created by the decision and release the prisoners and allow them to be resettled in the United States
The detainees are Uighurs, a minority of Turkic origin living in western China. They were taken to Guantanamo in 2002 after being captured in Pakistan, where they had relocated after receiving firearms training in Afghanistan related, they said, to their resistance to Chinese oppression. Once it was clear that their continued imprisonment was unnecessary, the Bush administration tried to persuade some nation other than China -- where they might have faced persecution -- to accept them, but that task was complicated by the reluctance of several countries to alienate Beijing. Meanwhile, the Uighurs languish in what passes for luxury accommodations at Guantanamo.
A federal judge ruled in October that, given the government's failure to relocate them, the Uighurs must be released and allowed to remain in the United States. The government appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit, and last week the court decided that the judiciary couldn't approve the release because immigration decisions are the preserve of Congress and the president. Sympathy for the Uighurs' long confinement, Senior Judge Arthur Raymond Randolph wrote for the three-judge panel, isn't "a legal basis for upsetting settled law and overriding the prerogatives of the political branches."
Judge Judith W. Rogers, while concluding that the lower court acted prematurely in ordering the Uighurs' release, rejected Randolph's assertion that courts have no power to order that aliens be allowed to remain in this country. Alluding to a 2008 Supreme Court decision granting Guantanamo inmates the right to challenge their confinement by seeking writs of habeas corpus, Rogers insisted that "the power to grant the writ means the power to order release." The implication was that if the U.S. couldn't safely transfer non-dangerous detainees to another country, they must be given their freedom in this one.
Actually, the law isn't that clear. In its 2008 ruling, the high court stopped short of requiring that a successful habeas corpus petition result in a prisoner's release, let alone his remaining in the United States.
The justices might consider that issue in the future, but even under the appeals court decision, there is a way to redress this injustice. President Obama, who has been adamant about ending abuses at Guantanamo, can order Homeland Security Secretary Janet Napolitano and Atty. Gen. Eric H. Holder Jr. to grant political asylum to the 17 Uighur detainees. That would accomplish what the appeals court refused to order: just compensation for their ordeal.