That's a key question in the case of 17 Chinese Muslims held at Guantánamo, which a federal appeals court panel takes up Monday.
The gauntlet was thrown down last month, when a federal judge ordered the US government to bring the 17 members of the Uighur ethnic group to the US pending Bush administration efforts to find a third country willing to resettle them permanently. Justice Department lawyers objected, saying that the judge exceeded his authority by requiring the government to admit the Uighurs into the US without regard to immigration laws barring the men.
On Monday, the issue will be argued before a three-judge federal appeals court panel in Washington.
The case will help establish in concrete terms what release from Guantánamo means when it is ordered as a remedy by federal judges. More than 200 habeas corpus cases are pending at the federal courthouse in Washington, filed on behalf of detainees at the US terror prison camp at Guantánamo Bay, Cuba.
At issue is whether a federal judge hearing a Guantánamo habeas case has the power not only to order the release of a detainee from US custody, but also to order the government to bring the detainee to the United States for possible resettlement.
"It is clear the court has the power to order this remedy," says Sharon Bradford Franklin of The Constitution Project. "This is not a radical thing for a court to do."
Although the government concedes that it is no longer treating the Uighurs as enemy combatants, the 17 men remain confined at the detention camp. The Bush administration says it cannot return the men to China because, as members of a persecuted ethnic minority group, they may face human rights abuses. No third country has been willing to accept them, in part because of fear of angering China.