By Warren Richey writer of The Christian Science Monitor
The Christian Science Monitor
Five Muslim detainees from China's western Xinjiang province are stranded in a legal no man's land at the US terrorism prison camp at Guantanamo Bay, Cuba.
They shouldn't be there. Even the US military has found that the men, members of the besieged Uighur ethnic group, are not enemy combatants. But their ordeal in custody isn't over. Because they could face harsh treatment back in China - and the US doesn't want to set a precedent by granting them asylum here - they sit in a barracks-like detention center waiting for a country to give them a home.
Now, more than four years after their imprisonment by US military forces, the men are asking the US Supreme Court to examine their case. At issue is whether individuals captured abroad can be held in military detention indefinitely - even after the US government has declared that they pose no threat to national security.
"These men have been adjudged by the military to be, essentially, mistakes. They are innocent men captured by mistake by US forces abroad," says Neil McGaraghan, a lawyer representing two of the detainees.
Though the five are not considered enemy combatants, the men can be held indefinitely under the executive branch's power to wind up wartime detentions in an orderly fashion, government lawyers say.
"The US has no interest in detaining anyone any longer than necessary," says Lt. Cmdr. Jeffrey Gordon, a Pentagon spokesman. "We continue to detain the Uighurs as we continue to work on their resettlement."
Their request comes after a federal judge in Washington, ruled in December that the open-ended detention was unlawful. But because of the murky legal status of the prisoners at Guantanamo, he said he lacked authority to order military commanders to release them.
"The question ... is whether the law gives me the power to do what I believe justice requires," US District Judge James Robertson wrote in his Dec. 22 decision. "The answer, I believe, is no."
Lawyers for Abu Bakker Qassim and Adel Abdu Al-Hakim took the unusual step of appealing directly to the Supreme Court even before the issue has been presented to a federal appeals court to prevent their clients from spending any more time in prison than necessary.
In their petition, the lawyers say Judge Robertson abdicated his judicial responsibility by failing to order the release of their clients.
"Liberty can never be secure when the judicial branch declares its impotence," writes Boston lawyer Sabin Willett. "The ruling proclaims an executive with unchecked power to seize innocents from around the globe, transport them to United States territory, and imprison them at its pleasure." If the lower court ruling is allowed to stand, it will render Guantanamo "a place and prison beyond law," Mr. …