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A federal court overrules the commander-in-chief on enemy combatants.


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Andrew C. McCarthy

Here we go.

The Los Angeles Times and Voice of America report that a federal appeals court in Washington has presumed to invalidate the commander-in-chief’s determination that a wartime detainee held by the military at the Guantanamo Bay naval base is an alien enemy combatant.

The detainee, Huzaifa Parhat, is a Chinese Muslim, one of nearly two dozen Uighurs captured in Afghanistan by American and allied forces after the September 11 attacks.  Seventeen Uighurs are still being detained.  The appeals court (which announced its ruling but has not yet released the formal decision because it contains classified information), ordered that Parhat must be released, transferred, or granted a new combatant-status hearing.

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And so the Boumediene fallout begins.

Against the backdrop of the Supreme Court’s startling June 12 decision to grant the aliens held at Gitmo a constitutional right to challenge their detention in federal court, Parhat is living proof of the old saw that bad facts make bad law. 

The Uighurs are technically classified as “enemy combatants.” Still, they have long been cleared for release because our military does not deem them a threat to the United States.  That doesn’t mean they are not a threat, mind you. They are — it’s just that their beef is with China. 

Thus we cannot return them to China because they’d be persecuted by its Communist regime. American treaty obligations forbid transferring a person to a country where he’d likely face persecution. Though Albania accepted five of the Uighurs, other countries are unwilling to divvy up the rest because they don’t want the headache of angry Chicoms, who want their rebellious nationals back. As usual, our fabulous allies in the war on terror would rather hammer Cowboy Bush over the existence of Gitmo than help us clear people out of there.

So now the alternative is . . . what? To release the Uighurs into the United States? These guys weren’t out of China on Hajj. They were getting combat training from Islamic militants in Afghanistan. Moreover, many — though apparently not Parhat — have been involved in serious incidents at Gitmo, including numerous assaults on U.S. military personnel and participation in riots incited by jihadists.

Their status presents difficult military, diplomatic, and foreign policy issues. You can argue that it hasn’t been handled well, that we should never have detained the Uighurs in the first place. But all war is fraught with error, and the cold detachment of hindsight is always 20-20. Perhaps in their wisdom the judges will enlighten our highly professional military and the rest of us dolts about how, in the heat of battle, they would have divined the difference between Muslim militants who mean harm to the United States and Muslim militants who mean harm to China. I have my doubts.

And that’s the point. Delicate military, diplomatic and foreign policy matters are not what we have courts for. Judges are not institutionally competent to decide those issues.  Until recently, the Supreme Court routinely acknowledged that.



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