The U.S. Court of Appeals for the D.C. Circuit was scheduled to hear arguments Monday from the Bush administration and lawyers for the detainees. The case comes as President-elect Barack Obama is pledging to quickly shut down a U.S. naval facility roundly condemned by the international community and many legal scholars.
At issue is whether a federal judge has the authority to order the release of prisoners at Guantanamo who were unlawfully detained by the U.S. and cannot be sent back to their homeland. The Muslims, known as Uighurs, were cleared for release as early as 2003 but fear they will be tortured if they are returned to China.
U.S. District Judge Richard Urbina last month, noting that they were no longer considered enemy combatants. He sternly rebuked President George W. Bush for a detention that "crossed the constitutional threshold into infinitum."
The Bush administration quickly sued to block Urbina's order, citing security concerns over weapons training the Uighurs received at camps in Afghanistan. The U.S. says it is continuing heightened efforts to find another country to accept them.
"This appeal raises questions of diplomatic relations and national security that are for the political branches, not the judiciary, to resolve," Solicitor General Gregory Garre wrote in court filings this past week.
A divided D.C. Circuit court in late Octoberso it could consider the government's full appeal. That same three-judge panel, composed of two Republican appointees and one Democrat, will hear oral arguments Monday.
"The government can point to no evidence of dangerousness," wrote Judge Judith W. Rogers, a President Bill Clinton appointee, in a stern four-page dissent that argued for the Uighurs' immediate release. The other two judges hearing Monday's appeal are Karen Henderson and A. Raymond Randolph, both appointees of President George H.W. Bush.
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 New York-based Center for Constitutional Rights. Their concerns raise similar questions as to where they should go if other countries refuse to take them. The Bush administration has long maintained those detainees should stay at Guantanamo.
Two United Nations investigators recently told the D.C. Circuit court that based on their high-level meetings with foreign governments "there is no third country of refuge for the Uighur prisoners now, or in the foreseeable future."
"It is our view that the United States is under international law obliged immediately to release the Uighur detainees of Guantanamo," Manfred Nowak, the U.N. torture investigator, and Martin Scheinin, the U.N.'s independent investigator on human rights in the fight against terrorism, wrote in court filings.
The Uighurs case is among more than 100 Guantanamo cases currently under review by federal judges after the Supreme Court ruled in June that foreign detainees at Guantanamo have the right to appeal to U.S. civilian courts to challenge their imprisonment.
Last week,after rejecting government allegations that they were "enemy combatants." U.S. District Judge Richard Leon also urged the Justice Department not to appeal, saying the detainees had languished at Guantanamo long enough.