On October 7, U.S. District Court Judge Ricardo M. Urbina, relying on the Supreme Court's Boumediene decision, ordered the release of 17 ethnic Chinese Muslims, known as Uighurs, from their Guantanamo Bay incarceration. The judge's order required the government to set the detainees free on U.S. soil. In fact, the judge ordered the men brought to his D.C. chambers so he could essentially release them personally. Some of the men received weapons training at Afghan camps affiliated with al Qaeda or the Taliban and were captured near Tora Bora in 2001 or 2002. While they are apparently no longer considered enemy combatants, their legal status remains in limbo. According to the Wall Street Journal...
They exist in a legal netherworld, however, because no one will accept custody. The U.S. will not repatriate the Uighurs to China, where they are considered separatists and are likely to be imprisoned, or worse. Five were released to Albania in 2006, but the State Department has not been able to persuade other countries, which fear reprisals from Beijing, to take in the rest. While their situation is unfortunate, the choice is between continuing to hold them at Gitmo in special housing or releasing them here.
The judge's order was short lived. Following an emergency appeal by the Justice Department, the U.S. Court of Appeals for the District of Columbia Circuit temporarily reversed ("stayed" in legal terms) Judge Urbina's order the next day. On October 20, a three-judge panel on the court ruled in a 2-1 decision that the men would continue to be held in custody in Gitmo pending oral arguments before all 12 D.C. Circuit judges on November 24. This is called an "en banc" hearing. The text of the opinion is not yet available online.
In legal papers, lawyers for the detainees said that no harm will come to the public and certainly no irreparable harm to the government should the prisoners be set free. ("Irreparable harm" is the legal measuring stick used to determine the appropriateness of an court-ordered injunction or restraining order.)
The Journal article opines that given the approximately 270 remaining Gitmo detainees who are or will be challenging their detention in federal court, "in some ways this case is unique, though that does not make Judge Urbina's decision--and the precedent it sets--any less dangerous...the practical question is: What happens to such terrorists if they're cleared for release by the likes of Judge Urbina? If no country will accept them, the real possibility exists that they will be released domestically. Judge Urbina's decision certainly makes that more probably, even if it is disguised in the exceptional, hard-luck case of the Uighurs."
Judge Urbina is a Clinton appointee. As the choice of a new President looms, it's worth keeping in mind that when it comes to the nomination and confirmation of federal judges in particular, elections have consequences.