Judge orders 17 freed from Guantanamo

Says Chinese Muslims can live in the US

WASHINGTON - A federal judge ordered the Bush administration yesterday to immediately release 17 Chinese Muslims and allow them to stay in the United States, ruling that they are no longer considered enemy combatants.

Federal District Judge Ricardo Urbina called the detention at Guantanamo Bay, Cuba, of the 17 prisoners - ethnic Uighurs, a restive Muslim minority in western China - unlawful, saying the Constitution prohibits indefinite imprisonment without charges.

Efforts to find a home for the detainees have been complicated by fears in many countries of diplomatic reprisals by China. In June, federal appeals judges issued a decision that ridiculed as inadequate the Pentagon's secret evidence for holding one Uighur, Huzaifa Parhat, a former fruit peddler who said he had gone to Afghanistan to escape China.

Since then, the Pentagon has conceded that it would "serve no useful purpose" to continue to try to prove that any of the 17 Uighurs was ever an enemy combatant.

The Uighurs say they have never been enemies of the United States, though in 2002 they were in Afghanistan, where they were detained. They say they would be persecuted or killed if they were returned to China. The Bush administration has said it has failed to find another country willing to accept them.

The government argued that the 17 detainees should be held at Guantanamo until another country could be found to accept them. In filings, the Justice Department lawyers argued that while Urbina could hear the Uighurs' case, he could not order their release because the judiciary "simply has no authority" to do so.

The Justice Department said the government's executive branch, not the judicial branch, has the authority to conclude military detentions, as it has in prior wars. It noted that in World War II, "no court ever questioned that it was solely for the political branches - not the courts" to decide how Italian prisoners of war were handled.

P. Sabin Willett, one of the Uighurs' lawyers, said such claims appeared to be laying the groundwork for US appeals.

When the Supreme Court ruled in June that detainees at Guantanamo had the right to challenge their detention in federal court, the justices said that after more than six years of legal wrangling the prisoners should have their cases heard quickly, because "the costs of delay can no longer be borne by those who are held in custody."

Until now, none of the scores of cases brought by detainees has been resolved by any judge.

Since the Supreme Court issued its ruling, lawyers for most of the 255 detainees in Guantanamo have pressed ahead with habeas corpus lawsuits, yet most of those cases have been delayed by battles over issues like whether some court sessions will be held in secret, whether detainees can attend, and what level of proof will justify detention.

Some of the arguments made by the Justice Department appear to challenge the Supreme Court's conclusion that the federal courts have a role in deciding the fate of the detainees. Officials and lawyers inside and outside of the government say the new legal confrontation suggests that the Bush administration will probably continue its defense of the detention camp until the end of President Bush's term.

"The legal issues that are being raised by the administration are going to take longer than the remaining time of the administration" to resolve, said Vijay Padmanabhan, an assistant professor at Cardozo Law School who was until July a State Department lawyer with responsibility for detainee issues.

Detainees' advocates say that the administration is using the legal battle to delay judicial review of its evidence, while government lawyers argue that the cases are moving rapidly.

A Justice Department spokesman, Erik Ablin, said the government was determined to take every precaution to avoid having dangerous people released.