(AFP) – Apr 6, 2009
WASHINGTON (AFP) — For the first time since taking office, President Barack Obama will see his Guantanamo policy tested before the US Supreme Court after 14 Chinese Uighurs detained without charge lodged a petition for their release.
The nine justices will decide this summer whether to hear the case that was filed Monday by the men asking the country's high court to lift a bar imposed on their release by a federal court of appeals.
The 14, members of the predominantly Muslim and Turkic-speaking Uighur minority who were captured in Afghanistan in late 2001, have been cleared of accusations that they were "enemy combatants," but legal wrangling over their fate continues.
The case has become a major political headache for the Obama administration, which has sought to avoid a major diplomatic bust-up with China at the same time as unpicking detention policies of the preceding administration of president George W. Bush.
Should the court opt to hear the case it could find itself embroiled in the establishment of new rules governing the detention of terror suspects, analysts say.
"What is at stake, ultimately, could be the fate of many if not most of the more than 240 prisoners still at Guantanamo, who might have to remain confined there or somewhere else even if the government decides that they are not dangerous enemies," said Lyle Denniston, founder of the Scotus blog which follows and discusses Supreme Court cases.
Although Obama has launched a wide-ranging review of policy on Guantanamo, individual cases have been moving through the court system ahead of its completion, including the Uighur case.
In October, federal judge Ricardo Urbina ordered the release of 17 Uighurs to US soil, but in February that decision was overturned.
Three men have since asked lawyers not to continue their case.
A court of appeal had ruled the executive branch was the only body with the power to release the men, who are challenging their detention through a Habeas Corpus writ.
Now the Supreme Court has been asked to rule on whether a federal court can order the release of the prisoners in the United States.
"The question presented here is whether the third branch may check the second at all," the Uighurs' lawyers argued in Monday's petition.
"If Habeas (Corpus) review may be shelved because one president may some day undo what his predecessor did, then the law is whatever the sitting president says it is, and the judiciary is the handmaiden of the political branch," they said.
Susan Baker Manning, a lawyer for the group, told AFP that the appeals court opinion is "directly defiant of the Supreme Court case law on Guantanamo.
"The Supreme Court made it crystal clear that you have habeas if you are in Guantanamo," said Baker Manning, adding that the group remained "hopeful" it could get a hearing by autumn.
The Defense Department and the State Department have tried unsuccessfully for several years to arrange the transfer of the Uighurs to a third country, saying they face the risk of persecution if they return to China.
The Obama administration has said it "cannot imagine" sending the inmates back to China.
Beijing regards the men as "Chinese terrorists."
Baker Manning said a diplomatic solution could be found "for the vast majority" of Guantanamo detainees, but that the case of the Uighurs is "highly political."
"China made clear to any country in the world that it would not be in their interest to take these men," she said. "China has enormous diplomatic pressure on all other countries."
Should the court reverse the lower court's February decision and order the Uighurs freed, a US source speaking on the condition of anonymity said there was a possibility that they could be released in the US capital.
"This is now President Obama's Guantanamo," said Emi McLean, an attorney at the Center for Constitutional Rights, evoking US courts' repudiation of Bush's policy on the "war on terror" detention center three times in recent years.
"If (Obama) is truly committed to closing the detention center, these men should be on a plane to restart their lives in the United States."
The Uighurs were living in a self-contained camp in Afghanistan when a US-led bombing campaign began in October 2001, a month after the deadly September 11 attacks in the United States.
They fled to the mountains, but were turned over to Pakistani authorities, who then handed them over to the United States.
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