William Glaberson / The New York Times – 2008-10-08 10:00:21

http://www.nytimes.com/2008/10/08/washington/08detain.htm

WASHINGTON (October 8, 2008) — A federal judge on Tuesday ordered the Bush administration to release 17 detainees at Guantánamo Bay by the end of the week, the first such ruling in nearly seven years of legal disputes over the administration’s detention policies.

The judge, Ricardo M. Urbina of Federal District Court, ordered that the 17 men be brought to his courtroom on Friday from the prison at Guantánamo Bay, Cuba, where they have been held since 2002. He indicated that he would release the men, members of the restive Uighur Muslim minority in western China, into the care of supporters in the United States, initially in the Washington area.

“I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention,” Judge Urbina said.

Saying the men had never fought the United States and were not a security threat, he tersely rejected Bush administration claims that he lacked the power to order the men set free in the United States and government requests that he stay his order to permit an immediate appeal.

The ruling was a sharp setback for the administration, which has waged a long legal battle to defend its policies of detention at the naval base at Guantánamo Bay, arguing a broad executive power in waging war. Federal courts up to the Supreme Court have waded through detention questions and in several major cases the courts have rejected administration contentions.

The government recently conceded that it would no longer try to prove that the Uighurs were enemy combatants, the classification it uses to detain people at Guantánamo, where 255 men are now held. But it has fought efforts by lawyers for the men to have them released into the United States, saying the Uighurs admitted to receiving weapons training in Taliban-controlled Afghanistan at the time of the Sept. 11, 2001, attacks.

The White House press secretary, Dana Perino, said the administration was “deeply concerned by, and strongly disagrees with” the decision. She added that the ruling, “if allowed to stand, could be used as precedent for other detainees held at Guantánamo Bay, including sworn enemies of the United States suspected of planning the attacks of 9/11, who may also seek release into our country.”

Justice Department lawyers said they were filing an emergency application on Tuesday night for a stay from the federal appeals court in Washington.

Judge Urbina’s decision came in a habeas corpus lawsuit authorized by a landmark Supreme Court ruling in June that gave detainees the right to have federal judges review the reason for their detention. Speaking from the bench in a courtroom crowded with Uighur supporters of the detainees, Judge Urbina suggested that the government was seeking a stay as a tactic to keep the men imprisoned.

“All of this means more delay,” he said with evident impatience, “and delay is the name of the game up until this point.” The centuries-old doctrine of habeas corpus permits a judge to demand production of a prisoner, a power Judge Urbina sought to exercise with his order that the men be brought to him.

“I want to see the individuals,” he said.

The Uighurs have long been at the center of contentious legal cases because they said they were swept into detention in Afghanistan in 2001 by mistake. They said they were in Afghanistan to seek refuge from China, where the Uighurs, Turkic Muslims, often bridle at Han Chinese rule.

The Bush administration has fought the Uighurs in court for years, contending that their encampment in Afghanistan had ties to a Uighur terror group. Last summer, a federal appeals court ridiculed as inadequate the government’s secret evidence for holding one of the men. In the months since, the government has said that it would “serve no useful purpose” to continue to try to prove that any of these 17 men were enemy combatants.

Lawyers for the Uighurs said the men would be persecuted or killed if they were returned to China. The administration said that since transferring five Uighur detainees to Albania in 2006, it had been unable to persuade governments to accept the other 17. Diplomats say many governments fear reprisal by China, which considers Uighur separatist groups terrorists.

The administration insisted during arguments on Tuesday that the courts did not have the power to release the men into the United States.

Judge Urbina, an appointee of President Bill Clinton, underscored the significance of his ruling with repeated references to the constitutional separation of powers and the judiciary’s role.

He rejected Justice Department arguments as assertions of executive power to detain people indefinitely without court review. He said that “is not in keeping with our system of government.”

More than 40 Uighurs, a few in native dress that included sequined velvet caps, watched in anxious silence. Only when the judge rose to leave the bench did they break into applause.

“Truth will win at the end,” said Elfidar Iltebir, one of the Uighurs, who is a computer systems manager in Virginia. Some of the men and women had come to court to describe the rooms, in the Washington suburbs, that they would offer the 17 men.

The ruling set the stage for a confrontation between the courts and the administration. John C. O’Quinn, a deputy assistant attorney general, suggested that immigration or Department of Homeland Security officials might detain the men when they were taken to the Washington area. Mr. O’Quinn argued that only the executive branch of the government, not the courts, could decide about immigration.

Mr. O’Quinn said such detainees would have no legal status in the United States. “Normally,” he added, “the law would potentially require them to be taken into some sort of protective custody.”

Judge Urbina said such arrests would not be appropriate. But he did not specify what he might do if the men were seized after being released by the Pentagon.

“I do not expect these Uighurs will be molested by any member of the United States government,” Judge Urbina said sharply. “I’m a federal judge, and I’ve issued an order.”

The Uighurs’ lawyers, Americans who have worked on the cases for years, had come to court prepared to outline a complex plan for support from community and church groups in the Washington area and in Tallahassee, Fla., where some of the men might eventually be resettled.

But Judge Urbina did not call for the testimony, saying he would hold a hearing on that matter on Oct. 16, after the men would already be free. He said he would impose conditions on their release, including appearances before him every six months. Lawyers for the Uighurs were pleased with the ruling.

P. Sabin Willett argued the case on Tuesday. In a crowd in the well of the courtroom after the judge had left the bench, Mr. Willett said there had been so many defeats over the years that he was not sure what to say at the prospect of the first federal case that might bring freedom to men in Guantánamo.

“We’ve had so many hearings where we didn’t even get half a loaf, we got a little crumb,” he said. “I’m emotionally unprepared for this.”

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