The Justice Department says the judiciary does not have the power to release Guantánamo detainees into the US.
A dispute over what to do about 17 Chinese Muslims detained at the Guantánamo Bay military prison is developing into a major showdown over the power of the judiciary to enforce fundamental constitutional rights in the war on terror.
The 17 men, all members of the oppressed Uighur ethnic minority in western China, have been held as enemy combatants by the US military for seven years, despite their insistence that they are not enemies of the US.
On Tuesday, a federal judge in Washington, D.C., ordered the government to release the men. But US District Judge Ricardo Urbina didn't stop there. He also ordered the government to bring the Uighurs physically from Guantánamo Bay, Cuba, to his courthouse chambers on Friday where they would be allowed to walk as free men out the front door and down the steps of the courthouse.
Justice Department lawyers filed an emergency appeal. "The government should not be forced to take the extraordinary step of bringing 17 aliens trained for armed insurrection against their home country [China] to be released in Washington, D.C., without the opportunity for this court's full appellate review of the crucial and novel legal questions presented," the lawyers said in their brief.
On Wednesday, the appeals court halted the men's release and instructed lawyers for the detainees and the government to file a new set of briefs.
The showdown over the Uighurs arises less than four months after the US Supreme Court handed down a landmark decision, Boumediene v. Bush, extending the constitutional right of habeas corpus review to terror suspects being held at Guantánamo Bay.