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Constitution is applied Feds fail to make any case during seven years of detention

It has taken seven years, a slow rejuvenation of the federal judiciary, a lame-duck president prosecuting an unpopular war and a Constitution of the United States that simply refuses to go away.

But at least one federal judge has had all he, or the Constitution, can stand. He has made it clear that the Bush administration, no matter how many terrorists there may be out there, is simply not allowed to act as judge, jury and indefinite jailer.

Judge Ricardo Urbina last week ordered the Bush administration to bring 17 particular inmates of the prison camp at Guantanamo Bay, Cuba, to his Washington, D.C., courtroom in anticipation of having them released.

"I think the moment has arrived for the court to shine the light of constitutionality on the reasons for detention," the judge said. He rightly noted that the Justice Department's insistence that it, and it alone, should be able to say who should be imprisoned and who should be set free was "Kafkaesque" and defied all constitutional reason.

Justice Department lawyers, in what is hopefully the dying gasp of an unconstitutional habit, appealed the ruling and Wednesday won an indefinite stay from an appeals court. But the government's argument that Urbina's ruling somehow endangers national security by making it easier to release more dangerous inmates is bogus at best. Every case will be decided on its own merits.

The 17 members of the Uighur minority of China, captured by U.S. forces in the mountains of Afghanistan, have been held for almost seven years, even though the Pentagon determined as far back as 2003 that they do not qualify as "enemy combatants."

The individuals are apparently among those who have been known to rebel against the Chinese government, by which they feel persecuted and against which they sometimes launch violent attacks. One was unleashed right before the Beijing Olympics.

But these 17 were accused of nothing more than being in an armed camp in Afghanistan, one with no known or even suspected evil intent toward the United States. They deny allegiance to the Taliban, and the United States has not been able to establish otherwise. They also object to being repatriated to China, where they have reason to fear torture or death at the hands of the government.

Urbina is prepared to release the 17 into the custody of Uighurs and friends who live in the Washington area, insisting that they stay in touch with the court while their long-term fate is determined. He also ordered the government to leave them alone.

The Bush administration's insistance on fighting this ruling has no grounds, other than its understandable humiliation for being unable to follow the rules set down for every American administration since George Washington's.

It has taken far too long -- and the appeals court ruling means it will take a little longer -- but an important principle is making its way back: Where American power is in place, the American Constitution applies.

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