WASHINGTON – A federal judge is considering ordering the release of two Chinese Muslims held at Guantanamo Bay, which would be an unprecedented step in the legal battles surrounding the Bush administration's treatment of detainees.
U.S. District Judge James Robertson raised the possibility, eight months after the U.S. military found the two men were not enemy combatants.
A Justice Department lawyer told the judge at a hearing this week that the Bush administration is still trying to find a country that will take the ethnic Uighurs, who say they fear torture or death if they are returned to China. The Uighurs are Turkic-speaking Muslims in western China, who have a language and culture distinct from the majority Chinese.
"We are going nuts here. Why are we still here? What kind of law exists in America to allow this to happen?" court papers in the case quote one of the detainees as saying.
Abu Bakker Qassim and A'Del Abdu al-Hakim receive treatment that is similar to that of other detainees who are deemed terrorist suspects, according to court papers filed by their lawyers, who are challenging the four-year confinement of the two men.
Robertson referred to the option of ordering the release of the two men at a hearing Monday, a step that would undoubtedly prompt an appeal by the government. The judge also raised the possibility of bringing the two to his courtroom for a hearing, which also would be an unprecedented step in the legal battles over detainees.
"It's inconceivable that the government doesn't have the diplomatic wherewithal to solve this problem if it wanted to solve it," Susan Baker Manning, an attorney for the two men, said Tuesday.
Baker Manning speculated that the U.S. government is refusing to grant the two asylum in the United States either because of concern over relations with the government of China or for domestic political reasons.
The Bush administration opposes a request that the two detainees meet with a representative of the United Nations Commission on Human Rights as a move toward resettlement in another country. The request lacks "any conceivable legal basis" because access to a military base is within the powers granted to both Congress and the president, the Justice Department said in court papers.
The two were captured in Pakistan as they fled a Taliban military training camp near Tora Bora, Afghanistan in 2001. They say they are deeply opposed to the government of China and have no animosity toward the United States.
Hakim has said representatives of the Chinese government tried to interrogate him at Guantanamo Bay, telling him that he was lucky the Pakistanis had turned him over to the Americans rather than the Chinese.
Last year, Robertson said the Bush administration's system of military commission trials for terror suspects from Guantanamo Bay is unlawful, and that the defendants' status as enemy combatants must first be determined by a competent tribunal. That issue is now before the Supreme Court.