View Full Version : Guantanamo Uyghurs are Jihadists - Andrew McCarthy

National Review
20-02-09, 15:33
Sanity Prevails, for Now
A court order releasing terrorist detainees has been reversed.

By Andrew C. McCarthy

“Ever since national States have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination by each State” — a matter “wholly outside the concern and competence of the Judiciary.” Invoking those words of Supreme Court Justice Felix Frankfurter to explain a principle that was already black-letter law when he wrote them some 57 years ago, the U.S. Court of Appeals for the D.C. Circuit has reversed a federal district judge’s lawless order that 17 alien jihadists be released into the United States.

The detainees, Muslim radicals known as Uighurs because they come from the Xinjiang Uighur region of China, are a cause célèbre among antiwar activists. As I’ve previously recounted, they were captured by Coalition forces after the American invasion of Afghanistan. Their presence there was not an accident: They had sought and received instruction in the paramilitary camps of the East Turkestan Islamic Movement. ETIM is an al-Qaeda affiliate that has been formally designated as a terrorist organization under U.S. law.

Nevertheless, under enormous political pressure to close the holding facility at Guantanamo Bay, the U.S. military has resorted to irresponsible rationalizations in its haste to clear detainees for release. In the Uighurs’ case, despite their jihadist ideology, their terrorist training, the fact that at least some of them fought against Coalition forces, and their joining other terrorist detainees in rioting at Gitmo, the military took the position that they were a threat to China rather than to the United States.

It is true that the immediate focus of the Uighurs’ jihad is China. They seek to wrest away from China the Xinjiang region, which they call “East Turkestan.” Still, the U.S. military’s theory is legally and factually untenable. To be detainable as an “enemy combatant” under American law, one must be an enemy of the United States. Jihadist ideology holds that the United States is the principal enemy, above all other non-Muslim regimes. Moreover, the military’s position has created an intractable problem: Thus far, only China is willing to accept the remaining 17 Uighurs (there were originally 22, but Albania accepted five of them two years ago), but we cannot send them there because we have treaty obligations not to transfer detainees to countries where they are likely to be persecuted. Since other countries want neither a beef with China nor trained jihadists walking their streets, they won’t take them off our hands (even as they squawk about what a travesty Gitmo is).

And so the matter stood until October, when district-court judge Ricardo Urbina did what, over time, courts invariably do: He pushed beyond the limits of his authority to maximize what he takes for justice — at the expense of security for the American people, to whom judges are not politically accountable. He responded to the military’s incoherence by ruling that the Uighurs were not enemy combatants. Then, on the basis of no law — only airy allusions to “constitutional limits” on detention and “the fundamental right of liberty” — he ordered not only that the Uighurs be released from detention but that they be released inside the United States. Both statutes enacted by Congress and Supreme Court decisions — most recently, Boumediene v. Bush (2008) — give the courts the power to review the legality of detention, even though such review shifts to the courts a determination that the executive branch is more institutionally competent to make.

Nonetheless, Urbina’s order was emphatically reversed Wednesday in an opinion written by senior circuit-court judge A. Raymond Randolph for the three-judge panel. The appellate court observed that the power to exclude aliens from our territory has repeatedly been recognized by the Supreme Court as one “to be exercised exclusively by the political branches of government,” because it is “inherent in sovereignty” and necessary both for “maintaining normal international relations” and “defending the country against foreign encroachments.” Neither of those is the responsibility of judges. Thus, it “is not within the province of any court” to second-guess a political branch’s exclusion of an alien “unless expressly authorized by law.”

Judge Randolph charitably presumed that Judge Urbina’s high-minded rhapsodizing must have been traceable to an actual provision of law, namely, the Fifth Amendment’s due-process clause. Nevertheless, that rich reservoir of judicial mischief is, he explained, unavailing for the Uighurs because “the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.” In fact, in the 1953 case of Shaughnessy v. United States ex rel. Mezei, the Supreme Court held that an excludable alien detained at Ellis Island did not have a due-process right to be released, even though the inability to find a country willing to take him rendered that detention potentially indefinite.

The Uighurs claim that the situation has been radically altered by the Supreme Court’s disastrous Boumediene decision, which, against precedent, tradition, and common sense, vested a constitutional right to habeas corpus (i.e., judicial review of the lawfulness of detention) in alien combatants held outside our territory — in wartime, no less. They contend, as Judge Urbina concluded, that this judicially manufactured right is illusory absent a judicially manufactured remedy.

This argument captured one judge on the panel, Clinton appointee Judith W. Rogers (who, as I recounted here, has previously equated the training received by jihadists in terrorist camps with the training received by Americans who own firearms). Judge Rogers concurred in the panel’s judgment, but only because she thinks Judge Urbina acted “prematurely” — i.e., he should not have ordered the Uighurs’ release into the United States before hearing from the immigration authorities.

That, as Judge Randolph pointed out, is an odd position to take, given that the Uighurs are not being held by immigration authorities. Further, they have never sought entry into the United States pursuant to the immigration laws — and understandably so: Congress, which sets the terms for entry into the country, has foreclosed admission to aliens who have had paramilitary training in terrorist camps or are members of terrorist organizations.

The true battle here, though, is not over immigration law. It is over Boumediene. There is a real question as to how extensive its damage will be. Constitutional protections and judicial power have never been thought to operate outside the United States for the benefit of non-Americans. As Judge Randolph pointed out, “The Guantanamo Naval Base [in Cuba] is not part of the sovereign territory of the United States. Congress so determined in the Detainee Treatment Act of 2005. . . . The Immigration and Nationality Act . . . also does not treat Guantanamo as part of the United States.”

Of course, that didn’t stop the Supreme Court from reasoning that, because the U.S. has de facto control over Gitmo, the judicial power extends there as well — at least to the extent of awarding habeas-corpus rights. But Justice Anthony Kennedy’s 5–4 Boumediene majority did not purport — at least not yet — to be doling out any other constitutional rights to our alien enemies. Judge Randolph declined the invitation to create new ones. Clearly, though, we’ve not heard the last of this.

The question now is: How much of a power grab is the judiciary bent on making? As Judge Randolph observed, the detainees are not claiming a simple remedy. They are claiming entitlement not merely to be released from detention but to be brought into, and to be allowed to live freely in, the United States. Since 2004, judges have intruded deeply into what used to be the exclusive domain of the commander-in-chief, asserting power to determine who is an enemy combatant, whether combatants may be detained in wartime, how combatants must be tried for war crimes, and even the parameters of the battlefield. Will the courts now usurp what has always been, as Judge Randolph incontrovertibly shows, the unilateral, unreviewable authority of the political branches to secure our borders?

For now, the answer is no. But unless some unforeseen diplomatic solution emerges, the case of the Uighurs will go on — next, to the full D.C. Circuit Court, where, thanks to Democratic obstruction during the Bush years, President Obama has two vacancies to fill. From there, it’s on to Justice Kennedy & Co., so anything could happen.

— National Review’s Andrew C. McCarthy is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).

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