WASHINGTON (CNN) - A federal appeals court panel ruled Wednesday that 17 native Chinese Muslims cannot be transferred and released into the United States from American military custody at Guantanamo Bay, Cuba.
The three-judge panel concluded by a 2-1 vote there is no legal or constitutional authority for the prisoners to be immediately freed even though they are unlawfully detained, and no countries currently are willing to accept them.
The 17 men are Uighurs, an ethnic group from western China. They are accused of receiving weapons and military training in Afghanistan. Some of the prisoners have been cleared for release since 2003, but the United States will not send them back to their homeland because of concern they would be tortured by Chinese authorities.
The Chinese government has said no returned Uighurs would be tortured.
"We do not know whether all petitioners or any of them would qualify for entry or admission [to the United States] under immigration laws," wrote Judge Raymond Randolph. "We do know there is insufficient evidence to classify them as enemy combatants - enemies that is of the United States. But that hardly qualifies petitioners [the Uighurs] for admission. Nor does their detention at Guantanamo for many years entitle them to enter the United States."
U.S. District Judge Richard Urbina in October ordered the Uighurs released inside the United States since they are no longer considered "enemy combatants." He said further imprisonment "crossed the constitutional threshold into infinitum."
The Bush administration appealed, seeking a quick hearing to block any release, at least temporarily.
Lawyers for the prisoners now have the option of appealing directly to the Supreme Court, but the justices may not take up the matter for months.
Complicating matters in the years-long legal fight is that President Barack Obama has announced plans to close the military prison in Guantanamo.
In the ruling, Randolph noted, "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 it is doing so. Nor do we have the
power to require anything more."
Judge Judith Rogers agreed with the majority that it would be premature to release the prisoners into the United States before their immigration status
is resolved. But she dissent from the majority opinion, saying if it were later
determined their detention was illegal, the courts "would have the power to
order them conditionally released into the country."
She expressed concern the men have been behind bars for years, and said their detention "appears indefinite."
About 250 prisoners, many of them suspected terrorists, remain in the prison. Approximately two-thirds have appealed their continued imprisonment
and have complained the government is unfairly keeping them from finding out if any evidence exists that could clear them of wrongdoing.
Many fear arrest, physical abuse or persecution if they are sent to their homelands, according the Center for Constitutional Rights, which is representing the Uighurs in court. It said the men pose no terror threat and could be released into the United States and stay with a local Muslim community until their cases were resolved.
Among the lead Uighur plaintiffs is Hazaifa Parhat, accused of attending a terror training camp in Afghanistan at the time of the September 11, 2001, attacks. He denies the charge.
Urbina and Judge Richard Leon, who are handling appeals from Guantanamo prisoners, have grown frustrated in recent months with the continued
detention of some of the men. Leon ordered the release last week of five Algerians accused of being enemy combatants, and urged the government not to
U.S. military hearings known as combatant status review tribunals determine whether a prisoner can be designated an "enemy combatant," and prosecuted by the military. Some legal and military analysts have likened them to civilian grand jury proceedings.
The appeals court case is Kiyemba v. Obama (08-5424).