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Uighur leader Rebiya Kadeer (AP/Photo by Manuel Balce Ceneta)

Detainee dilemma

Courts | The 17 Chinese Muslims still detained at Guantanamo Bay highlight the difficulty President-elect Obama will have in closing the prison

WASHINGTON-The dilemma involving Chinese Muslims imprisoned for seven years at Guantanamo Bay, Cuba, highlights the difficulty President-elect Barack Obama will have in following through on his campaign promise to close the controversial naval military prison.

The 17 detainees, who the U.S. government no longer deems as "enemy combatants," have been cleared for release since 2003, but the dilemma lies in where to send them. These Chinese Muslims, known as Uighurs (pronounced WEE' gurz), face persecution in their home country, and U.S. officials fear they would be killed if they return to China.

But so far no other countries have stepped forward to receive them. Two years ago, Albania accepted five Uighurs released from the prison, but countries since have closed their doors because of diplomatic pressure from China. The U.S. State Department's efforts to find homes for the Uighurs abroad have also been hampered by the Justice Department's public statements that the released detainees would be serious security concerns in the United States.

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U.S. District Judge Richard Urbina ordered the 17 released into the United States in October, but the Justice Department, which opposes their release into the country, gained a halt on the judge's order through the D.C. Circuit Court of Appeals. The case went before that same court, which is made up of three federal judges, two of them Bush appointees, Monday. In oral arguments, the judges sounded unlikely to support the prisoners' release into the country. They suggested that the detainees might need to formally apply to enter the United States via the Homeland Security Department, which administers U.S. immigration laws.

The question the judges face is whether they have the authority to override U.S. immigration procedures in their decisions to release prisoners from Guantanamo. Attorney General Michael Mukasey has argued that courts have no such authority. But if no other countries will accept the prisoners, as in the Uighurs' case, then any court order releasing them is ineffective. The Uighurs' advocates fear that the prisoners' detention in the military camp could be indefinite if judges are not permitted to order the prisoners' release to the United States.

The U.S. Supreme Court's ruling in June that Guantanamo prisoners have habeas corpus rights, allowing them to challenge their detentions in U.S. courts, touched off conflicts between federal judges and the Bush administration, led by the Justice Department. Solicitor General Greg Garre, who argued Monday against the Uighurs' release on behalf of the Justice Department, said that because the issue concerned national security, the decision should rest with the president.

But a Bush-appointed federal judge, Richard Leon, disagreed with that assertion in a separate case last week when he ordered five Algerian prisoners freed from Guantanamo. Still, the conditions of how the detainees will be set free are unsettled.

Obama has promised to close the prison at Guantanamo, which now holds 250 detainees.

White House spokeswoman Dana Perino has said that closing the camp may be much more complicated than the Obama team realizes.

The incoming Obama administration is working on a plan that would release some of the detainees and try others in U.S. courts. The plan could require the creation of a new legal system to handle the classified information inherent in some of the most sensitive cases, but details are still in the works.

The past speeches of Eric Holder, who is rumored to be Obama's pick for attorney general, indicate that he has a very different position on Guantanamo than the current attorney general, Mukasey. Holder called the camp an "international embarrassment" and a "moral hazard" during a speech last June, and said it should be closed.

One hundred cases from Guantanamo are currently under the review of federal judges.
The Associated Press contributed to this report.

Emily Belz
Emily Belz

Emily, who has covered everything from political infighting to pet salons for The Indianapolis Star, The Hill, and the New York Daily News, reports for WORLD Magazine from New York City. Follow Emily on Twitter @emlybelz.


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