Justice Denies the Uighurs … For Now

This column was written by Andrew C. McCarthy.

What about the Geneva Conventions, you say? Forget it: They don't create any enforceable rights for these detainees, and federal judges have no business entertaining claims based on them - including claims rooted in the Conventions' Common Article 3, which has no bearing on this situation. And don't tell us about how U.S. statutory law might help the detainees. Gitmo is part of Cuba; it's not sovereign U.S. territory. The judicial power to enforce U.S. law "does not have extraterritorial application and therefore does not apply to petitioners at Guantanamo Bay." There is, moreover, nothing in the U.S. Constitution that entitles these aliens to relief - on that, a conservative-leaning panel of the D.C. Circuit had it just right when it reversed that bleeding-heart, Clinton-appointed district judge.

Sound familiar? You must figure I've dusted off a copy of Dick Cheney Does the Imperial Presidency - or maybe that I'm reading from some relic those Constitution-shredders in the Bush Justice Department left behind.

I am actually reading from the brief submitted to the Supreme Court last week by Pres. Barack Obama's Justice Department. As the DOJ announced, in what's becoming its weekly contribution to the Friday Night Embarrassing News Dump, the brief sets forth the administration's opposition to the Uighurs, Chinese nationals held at Gitmo who are claiming a right to be released in the United States.

Captured in Pakistan after receiving terrorist training in Afghanistan, the Uighurs are the antiwar Left's cause célèbre. Human-rights activists are thus crestfallen after Obama's decision to fight any effort by the federal courts to direct their transfer into the U.S. - especially given that the seemingly imminent release of these trained terrorists to live among us (on public welfare, no less) has been dangled publicly by Attorney General Eric Holder and National Intelligence Director Dennis Blair. But the dangling backfired, generating public ire and congressional pressure that caused the president to reverse course, just as he has done on prisoner-abuse photos, military tribunals, indefinite detention, terrorist surveillance, etc.

Given the Obama campaign's derision of Bush national-security policies that President Obama has largely adopted, his Justice Department's brief is a remarkable document. For example, after Holder's ballyhooed purging of the terms "war" (in favor of "overseas contingency operation") and "enemy combatant" (in favor of the unwieldy "individuals captured or apprehended in connection with armed conflicts and counterterrorism operations"), one can't help but be startled by the Justice Department's matter-of-fact description of most Gitmo detainees (i.e., those other than the Uighurs) as "individuals currently detained as enemies under the laws of war."

Further, while he probably shouldn't hold his breath waiting for Holder's apology phone call, Rep. Dan Lungren (R., Calif.) will no doubt find Justice's brief quite interesting. Less than three weeks ago, when the attorney general testified before the House Judiciary Committee, Lungren pressed him on whether Obama's idea of closing Gitmo and moving detainees into our country would not be a blunder. "As you know," Lungren pointed out to Holder, "their being in the United States gives them an attachment to the Constitution they might not otherwise have, and, therefore, they have the full panoply - or, arguably, they may have the full panoply of Constitutional rights."

This legal ramification of physically transferring alien detainees into the U.S. (which is to say, into the territorial jurisdiction of the federal courts) was undeniable - unless, of course, you were Eric Holder. The attorney general stubbornly refused to concede Lungren's point. "I'm not sure about that," he maintained. He declined to budge beyond saying "I suppose, yeah," it was possible that some lawyer might put such a dubious argument "in a brief."

We now know exactly who that lawyer is: Elena Kagan, the solicitor general in Holder's department.

Her brief repeatedly recognizes "the critical distinction" the Supreme Court has drawn "between an alien who has effected an entry into the United States and one who has never entered." That's why, the DOJ insists, the Uighurs must be kept out. Indeed, Kagan cautions the Supreme Court not to "blur the previously clear distinction between aliens outside the United States and aliens inside this country or at its borders." "This basic distinction," she elaborates, "serves as the framework on which our immigration laws are structured, and repeatedly has been recognized as significant not just under the Constitution but also as a matter of statutory and treaty law." Who knew?

Also noteworthy is the Obama administration's sudden fondness for the D.C. Circuit. Prior to January of this year, when many lawyers now serving in the Obama administration were representing enemy combatants in lawsuits against the American people, this federal appeals courts was the bane of their existence, the place where conservative judges like Raymond Randolph and John Roberts (now the chief justice) would overturn the "creative" (i.e., detainee-friendly) rulings of estimable left-wing district judges.

Clearly, Judge Randolph, author of the decision denying release in the U.S. that the Uighurs are trying to appeal, has gotten a lot smarter since January 20. He's evidently convinced Holder, previously an ardent critic of Bush's policy of indefinitely detaining actual enemy combatants, that indefinitely detaining even purportedly innocent, non-combatant aliens is fully consistent with Supreme Court precedent. In fact, to support that contention, Obama's DOJ now expressly relies on an episode the Left hasn't wanted to talk about much over the last eight years: "the thousands of Haitian migrants involuntarily interdicted by the U.S. Coast Guard in the 1990s and held at Guantanamo Bay pending their resettlement or repatriation." If you're keeping score, that was the indefinite-detention policy of the Clinton administration, which Holder served as deputy attorney general.

To its credit, Holder's Justice Department makes exactly the right legal argument - would that the administration's record of bashing Gitmo had not so poisoned the well. The Uighurs, Justice contends, have already gotten all the relief the judiciary is empowered to give them under the Supreme Court's Boumediene decision: They received a fair judicial review of their status, at which it was determined that they are not combatants. Thus, as a matter of law, we are no longer really detaining them as enemies; we are merely harboring them as dissatisfied guests. They are free to go back to China today if they'd like. Understandably, Justice explains, the Uighurs don't want to do that, since terrorists who train to make war on a totalitarian regime tend to get a chilly reception when they return home. It is our policy not to force them to return to a country where "they are more likely than not to be tortured," but don't blame us for their ongoing "harborage" at Gitmo; it's their choice, and we are feverishly seeking, through diplomacy, to find them other accommodations.

That brings us to the two most intriguing aspects of Justice's brief, both involving President Obama's unabashedly expansive conception of executive power. First, in no uncertain terms, the president is telling the justices to know their place and back off while he runs foreign affairs. "The power to admit or exclude aliens is a sovereign prerogative," proclaims the brief. And Obama wants the Supreme Court to know that he is the sovereign. It is he who controls foreign affairs, and it is his administration that, unilaterally, is empowered to decide which aliens qualify for entry. Any judicial "intrusion into matters of foreign relations by mandating unilateral acceptance of aliens" would violate separation-of-powers principles and "undermine the efforts of the Executive to resolve the situation of the Guantanamo Bay detainees." All of this is true, of course, but it's exactly the sort of position over which Obama continues to excoriate the Bush administration - most recently in his National Archives speech.

The second point involves what the brief doesn't say, and it should cause great anxiety to those worried that the Obama administration still intends to resettle trained terrorists in the United States. In arguing that the Uighurs must be kept out, the Justice Department speaks very generally about how the detainees do not qualify for entry under "the federal immigration laws." The Supreme Court is informed that those laws are "comprehensive and reticulated," but the DOJ is careful not to specify any of them except for Section 1182(f). That's the statute in which Congress reposed sweeping discretionary powers in "the President" to bar "any aliens or . . . class of aliens" whose entry the president believes "would be detrimental to the interests of the United States."

That's fine as far as it goes. But note that Justice does not make a single reference to Section 1182(a)(3). That's the provision in which Congress bars from admission any alien who has been affiliated with a terrorist organization or has had terrorist paramilitary training. In this litigation, that would be checkmate, so why not invoke it? Very simply: Because while Section 1182(f) is a limitation on the power of the court, Section 1182(a)(3) is a limitation on the power of Obama. The administration does not want to acknowledge any such limitations - doubtless because, as the brief asserts, "the Executive" is still "encouraging other countries to participate in resettlement efforts."

Neither the Supreme Court nor Congress is going to like this game. The administration is telling the justices that Congress has rendered them powerless to order the Uighurs' release in the United States, yet DOJ refuses to acknowledge that Congress has also rendered the president powerless to release them here. Obviously, the administration is engaging in this sleight of hand because President Obama still intends to resettle at least some of these trained terrorists in the United States. Inspiring other countries to be reciprocally suicidal is Obama's only real chance to honor his reckless commitment to close Gitmo by January.
Somebody on Capitol Hill should ask Attorney General Holder why his department held back from making its best argument to the Supreme Court.

National Review's Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad.

By Andrew C. McCarthy
Reprinted with permission from National Review Online.