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
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
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
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
"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,"