Backsliding on the rule of law?

The Baltimore Sun

A federal appeals court panel this week threw a monkey wrench into efforts to free 17 Chinese dissidents detained as terrorist suspects after the U.S. toppled Afghanistan's Taliban government in 2001. President Barack Obama, who has pledged to close the U.S. detention facility in Guantanamo, should use this case to repudiate the Bush policy of indefinite detention without charge and order their release.

The suspects are ethnic Uighurs (pronounced "WEE-gurz") from western China who had fled to Afghanistan fearing persecution for their separatist views. They later fled to Pakistan, where they were captured and turned over to U.S. forces. For the last seven years, they have been held at Guantanamo, despite a District Court ruling in October that they posed no threat to the U.S. and should be released.

But their release was blocked by a decision this week by a three-judge panel of the 5th U.S. Circuit Court of Appeals that only the executive branch and Congress have the power to admit people to the U.S. In effect, the court said that while the Uighurs could challenge their detention in court, judges are powerless to free them.

Now, Mr. Obama must resolve that legal Catch-22. As a matter of equity, he should free the Uighurs as soon as possible. The president has not commented on the Uighur decision, but members of his administration seem to be equivocating over some of the Bush counterterrorism policies he condemned during the presidential campaign - including transferring detainees to other countries without legal rights and indefinitely detaining suspects captured outside the war zone. In recent testimony to Congress, Mr. Obama's nominees for attorney general, solicitor general and CIA director all declined to categorically rule out such practices.

Mr. Obama came into office partly on a wave of revulsion against his predecessors' trampling of civil liberties at home and abroad. The case of the Uighur detainees offers him an opportunity to show he has turned the page on that sad chapter. It would damage his credibility and America's moral standing if he let it slip away.

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