After the Supreme Court's decision in Boumedienne v. Bush -- restoring the court's jurisdiction over habeas corpus petitions -- the Uighurs filed motions alleging that their continued detention was unlawful and requesting the court order the government to release them into the U.S.
Urbina ruled that "Because the Constitution prohibits indefinite detention with just cause...continued detention of the petitioners is unlawful."
"Because separation of powers concerns do not trump the very principle upon which this nation was founded -- the unalienable right to liberty -- the court orders the government to release the petitioners into the U.S," he wrote.
The Bush administration has said it was continuing "heightened" efforts to find another country to accept the Uighurs.
Albania accepted five Uighur detainees in 2006 but since has balked at taking others. Other nations are said to have followed the same tack, reportedly out of fear of diplomatic repercussions from China. Foreign policy experts have also noted that the U.S. appears to have greatly diminished leverage in the world community to persuade other countries to accept the Uighurs.
Uighurs are from Xinjiang - an isolated region that borders Afghanistan,
Pakistan and six Central Asian nations. They say they have been repressed by the Chinese government. China long has said that insurgents are leading an Islamic separatist movement in Xinjiang. The Uighur detainees were captured in Pakistan and Afghanistan in 2001.
The possibility that Judge Urbina's decision will prevail cannot be ruled out. From time to time, a decision of a lower court judge is reversed by an appeals court - but ultimately affirmed by the Supreme Court.
David Cole, a law professor at Georgetown University and one of the Uighurs' attorneys, told us that this is precisely what happened in another landmark Guantanamo case, Hamdan v. Bush.
"Surprisingly," Cole said, "Hamdan prevailed in the district court, when U.S. District Judge James Robertson courageously ruled that trying Hamdan in a military tribunal of the kind set up by the government would violate the Geneva Conventions."
But Cole added that, "Not surprisingly, that decision was unanimously reversed, on every conceivable ground, by the Court of Appeals for the D.C. Circuit, in an opinion joined fully by then Judge, now Chief Justice, John Roberts."
He noted that after the Supreme Court agreed to hear the Hamdan case, Congress passed a law that appeared to be designed to strip the Supreme Court of its jurisdiction to do so. The law "required defendants in military tribunals to undergo their trials before seeking judicial review, and prescribed the D.C. Circuit as the exclusive forum for such review," Cole said.
But in June 2008, the Supreme Court ruled 5-4 that the Military Commissions Act of 2006 unconstitutionally limited detainee's access to judicial review and that detainees have the right to challenge their detention in conventional civilian courts.
Salim Hamdan, the Yemeni-born driver for Osama bin Laden who was captured in Afghanistan, was charged at Guantanamo, tried last August before the first Military Tribunal, convicted of aiding terrorism but acquitted on a charge of conspiring to commit terrorist attacks including those on Sept. 11. Given credit for years already served, Hamdan could be eligible for release before the end of 2008.
In a related and far-reaching development, President George W. Bush today announced that his administration would in effect "kick the Guantánamo can down the road" - and not close the notorious prison.
Quoting senior administration officials, newspapers reported that Bush never considered proposals drafted by the State Department and the Pentagon that outlined options for transferring the detainees elsewhere.
According the U.S. media, Bush adopted the view of his most hawkish advisers that closing Guantánamo would involve too many legal and political risks to be acceptable, now or any time soon, the officials said.
The effect of Bush's decision is to retain a prison that has become a worldwide negative icon for the administration's fight against terrorism.
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