Last week, our chapter of Amnesty International wrote an Urgent Action letter to Attorney General Eric Holder and Secretary of Defense Robert Gates, amongst other officials, regarding the case of 17 Uighur detainees who have been cleared of all charges, yet have remained in Guantanamo (this is their seventh year in detention) for lack of a safe country that will accept them, as the Uighurs are a fairly persecuted minority group in China. Today, the US Court of Appeals ruled that a previous judge's verdict in October, declaring that the Uighurs were free of all charges and should be released into the U.S., was too hasty, and have declared that the Uighurs should currently remain in the Guantanamo Bay camp. Given President Obama's executive proclamation/attempt to have Gitmo closed within a year, it will be interesting to see how he resolves this judicial conflict and whether or not he decrees that the Uighurs may be given refuge in the US.

From the New York Times:

Release of Guantánamo Detainees to U.S Barred

WASHINGTON (AP) -- A federal appeals court on Wednesday ruled that 17 Turkic Muslims cleared for release from Guantanamo Bay must stay at the prison camp, raising the stakes for an Obama administration that has pledged to quickly close the facility and free those who have not been charged.

In a showdown over presidential power, the U.S. Court of Appeals for the D.C. Circuit said a judge went too far last October in ordering the U.S. entry of the 17 men, known as Uighurs (WEE'-gurz), over the objections of the Bush administration.

The three-judge panel suggested the detainees might be able to seek entry by applying to the Homeland Security Department, which administers U.S. immigration laws. But the court bluntly concluded the detainees otherwise had no constitutional right to immediate freedom after being held in custody at the facility at Guantanamo Bay, Cuba, without charges for nearly seven years.

''Such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives of the political branches,'' wrote Judge A. Raymond Randolph, an appointee of President George H.W. Bush.

Attorneys for the detainees said they were considering whether to appeal the decision to the full appeals court or the Supreme Court. But they made clear it was now time for President Barack Obama to take action after eight years of Bush administration detention policies.

''The ball is in President Obama's court,'' said Emi MacLean, an attorney with the New York-based Center for Constitutional Rights. ''If he is genuinely committed to closing Guantanamo, one clear and immediate step he should take is release the Uighurs into the U.S.''

The White House declined to comment on the ruling, citing its ongoing review on closing the Guantanamo prison. Within days of taking office, Obama ordered Guantanamo closed in a year. But he has since been largely quiet on where the hundreds of prisoners -- most of whom are being held without charges -- should be released if no country is willing to take them.

The State Department has said it is continuing diplomatic efforts to resettle the Uighurs and other detainees in other countries.

At issue in the case was whether a federal judge has the authority to order the release of prisoners at Guantanamo who were unlawfully detained by the United States and cannot be sent back to their homeland. The Muslims were cleared for release from Guantanamo as early as 2003 but fear they will be tortured if they are returned to China.

Earlier this month, Beijing warned other countries not to accept the men.

U.S. District Judge Ricardo Urbina in October ordered the government to release the 17 men into the United States, noting that they were no longer considered enemy combatants. He sternly rebuked the Bush administration for a detention policy toward the Uighurs that ''crossed the constitutional threshold into infinitum.''

But in Wednesday's decision, the three-judge panel made up of one Democratic and two Republican appointees disagreed.

''The government has represented that it is continuing diplomatic attempts to find an appropriate country willing to admit petitioners, and we have no reason to doubt that it is doing so,'' Randolph wrote. ''Nor do we have the power to require anything more.''

Judge Judith Rogers, who was appointed by former President Bill Clinton, wrote in a separate opinion that Urbina might have constitutional authority to release the men based on recent Supreme Court rulings. But Rogers said Urbina's decision was premature because he had not yet heard from U.S. immigration officials.

The Supreme Court has held that Guantanamo Bay detainees can go to court to challenge their imprisonment. Wednesday's appeals court ruling effectively means that a judge can hear the case but in some instances have no authority to actually free the detainees.

''Today's decision represents a disappointing step back towards the Bush administration's unlawful Guantanamo policies,'' said Jameel Jaffer, director of the American Civil Liberties Union National Security Project. ''These men were cleared for release but have been held without charge in a system that utterly disregards the fundamental tenets of due process.''

Roughly 20 percent of about 250 detainees who remain at Guantanamo fear torture or persecution if they return to their home countries, according to the Center for Constitutional Rights. The Bush administration had maintained that, unless another country agrees to take them, the detainees should stay at Guantanamo.

Uighurs are from Xinjiang -- an isolated region that borders Afghanistan, Pakistan and six Central Asian nations -- and say they have been repressed by the Chinese government. China has long said that insurgents are leading an Islamic separatist movement in Xinjiang. The Uighur detainees were captured in Pakistan and Afghanistan in 2001.

Albania accepted five Uighur detainees in 2006 but has since balked on taking others, partly for fear of diplomatic repercussions from China.

A Swedish immigration court initially granted asylum to one of those men on Wednesday, although the Swedish migration board is now appealing the decision to a higher court. Adil Hakimjan applied for asylum in Sweden because his sister lives there.

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Associated Press writer Matthew Barakat contributed to this report.

From the New York Times:

LONDON — A Guantánamo detainee whose case has drawn international attention because of his claims that he was tortured while in C.I.A. custody, is scheduled to arrive back in Britain on Monday, according to his lawyers and British officials.

The detainee, Binyam Mohamed, has been in American custody for nearly seven years, held and interrogated first in Pakistan, then for 18 months in Morocco, before being sent to the Guantánamo Bay prison camp.

His return will end an 18-month stand off between the United States and Britain, which has been seeking his release since August 2007.

It will not, however, end an effort by Mr. Mohamed’s lawyers and some members of Parliament here to obtain photographs that Mr. Mohamed said were taken by an American woman and that showed his injuries, according to notes of his conversations with his lawyer, who provided them to The New York Times.

At the time of his arrest, in April 2002, American officials said that Mr. Mohamed, who has a brother and two sisters living in the United States, was part of a conspiracy to detonate a dirty bomb on American soil. But he will leave Guantánamo without having been charged with any terrorist activity, or other crimes.

“I am confident he will be home tomorrow,” said Clive Stafford-Smith, his lawyer, “and it is not a moment too soon.” A British government official who declined to be identified confirmed this, but would give no other details. On Friday, the British Foreign Office issued a statement that final arrangements were under way for Mr. Mohamed’s release.

American Embassy officials in London refused to comment on the situation, saying that as a matter of policy they could talk about Guantánamo releases that had not happened yet.

The British government began concentrated efforts for Mr. Mohamed’s return in August 2007, but was rebuffed by the Bush administration.

One stumbling block was the restrictions to be put on Mr. Mohamed when he was released. The British government said it could not impose the conditions wanted by the United States, which included electronic surveillance and an official control order, because they violated British and European human rights law.

Mr. Mohamed has agreed to voluntary restrictions, including a lifetime prohibition on travel to the United States, people who have seen the restrictions said. Those people spoke on condition of anonymity, and gave no more details about the restrictions, because the terms of Mr. Mohamed’s release had not been publicly released.

Mr. Mohamed was born in Ethiopia, but his family fled for political reasons in the early 1990s. Mr. Mohamed moved to Britain in 1994, where he was unemployed and into drugs, his lawyer said. In 2000, he went to Afghanistan, to get off drugs (the Taliban had a strict policy against domestic drug use) and to decide whether it was a “good Islamic country or not,” he told his lawyer.

American officials have said that he attended military training camps in Afghanistan. Mr. Mohamed has said he was training to fight in support of Muslim insurgents in Chechnya, and not to carry out terrorist attacks in the United States.

After the fighting broke out between the United States and Taliban in late 2001, Mr. Mohamed fled Afghanistan. He was picked up in Karachi, trying to get on a plane back to Britain, with a false British passport. He said his had been lost.

After several months of interrogation in Pakistan, he was secretly taken on a C.I.A.-chartered plane to Morocco, according to the plane’s flight logs and British officials. The C.I.A. has repeatedly declined to say if he was ever held in Morocco, and has steadfastly denied that Mr. Mohamed, or anyone else in its custody, was ever tortured.

At a news conference here last week, his military lawyer, Lt. Col. Yvonne Bradley of the United States Air Force, said that what Mr. Mohamed endured at Guantánamo “makes waterboarding look like child’s play.”

For 18 months, “I never went outside, I never saw the sun, not even once,” Mr. Stafford-Smith quoted Mr. Mohamed as saying during one of their many sessions at the prison camp. Immediately after each interview, Mr. Stafford-Smith would write down what he had been told and submit it to the military for clearance.

Mr. Stafford-Smith provided the Times with a 25-page memorandum of his interviews with Mr. Mohamed, which had been cleared by the military.

Interrogators in Morocco showed him pictures of various Al Qaeda leaders and asked him if he knew them. He insisted he did not.

One night, three men in black masks and military trousers came in, Mr. Mohamed told Mr. Stafford-Smith. “One stood on each of my shoulders and the third punched me in the stomach,” Mr. Mohamed said. “It seemed to go on for hours,” he said. “I vomited within the first few punches.”

Other times, they tied him to a wall, his feet just off the floor, he said. They brought in women, “naked or part naked,” he said.

On one occasion, while tied to the wall, his clothes were stripped off, he said. Then, one man took a scalpel and made cuts on his chest. Then they cut his genitals, Mr. Mohamed said.

“I suffered the razor treatment about once a month,” Mr. Mohamed said, according to Mr. Stafford Smith’s declassified notes of the interview.

In January 2004, five soldiers, wearing face masks and Timberland boots, dragged him from his cell and stripped him. He heard an American accent.

There was a female in the group. She took pictures of his wounds with a digital camera, he said. “She was one of the few Americans who ever showed me any sympathy,” Mr. Mohamed told his lawyer. “When she saw the injuries I had she gasped. She said, ‘Oh my God, look at that!’”

He was taken to American-run Bagram Air Base in Afghanistan, his lawyer said, where more photos were taken. One of the soldiers told him it was “to show Washington it’s healing,” Mr. Mohamed told his lawyer.

Mr. Mohamed’s lawyers have been trying to obtain the pictures as well as other documents, which they say support Mr. Mohamed’s allegations. A British court has said that the classified documents support Mr. Mohamed’s claims, but the American and British governments have objected to their release.

Obama Upholds Detainee Policy in Afghanistan
By CHARLIE SAVAGE at the New York Times

WASHINGTON — The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.

In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release.

“Having considered the matter, the government adheres to its previously articulated position,” wrote Michael F. Hertz, acting assistant attorney general.

The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.

The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States. The Obama team was required to take a stand on whether those arguments were correct because a federal district judge, John D. Bates, asked the new government whether it wanted to alter that position.

The Obama administration’s decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration’s policy of indefinitely detaining “enemy combatants” without trials.

The power of civilian federal judges to review individual decisions by the executive branch to hold a terrorism suspect as an enemy combatant was one of the most contentious legal issues surrounding the Bush administration. For years, President Bush’s legal team argued that federal judges had no authority under the Constitution to hear challenges by detainees being held at the military prison at Guantánamo Bay, Cuba, and elsewhere.

The Supreme Court rejected the Bush administration’s legal view for prisoners held at Guantánamo in landmark rulings in 2004 and 2006. But those rulings were based on the idea that the prison was on United States soil for constitutional purposes, based on the unique legal circumstances and history of the naval base.

Rights lawyers have been hoping that courts would extend those rulings to allow long-term detainees being held at United States military bases elsewhere in the world to sue for release, too. There are about 600 detainees at Bagram and several thousand in Iraq.

Jack Balkin, a Yale Law School professor, said it was too early to tell what the Obama administration would end up doing with the detainees at Bagram. He said some observers believed that the Obama team would end up making a major change in policy but simply needed more time to come up with it, while others believed that the administration had decided “to err on the side of doing things more like the Bush administration did, as opposed to really rethinking and reorienting everything” about the detention policies it inherited because it had too many other problems to deal with.

“It may take some time before we see exactly what is going on — whether this is just a transitory policy or whether this is really their policy: ‘No to Guantánamo, but we can just create Guantánamo in some other place,’ ” Mr. Balkin said.