Last June, five Supreme Court justices dreamed up a constitutional right for aliens held as enemy combatants to challenge their wartime detention in court. Now the bitter fruits of the Boumediene decision are plain to see: In Washington, a federal judge has ordered the release — into the United States — of 17 men captured near Tora Bora after the American invasion of Afghanistan.
#ad#The men are Uighur Muslims from China. And therein lies the key to this convoluted tale. The outpouring of media sympathy for the Uighurs suggests that they were on holiday when they were mistakenly swept up by invading Americans. In point of fact, they had trained at jihadist paramilitary camps, where they were schooled in bomb construction, close combat, assassinations, and the like. Specifically, the Uighurs are tied to an al-Qaeda affiliate, the East Turkestan Islamic Movement, a designated terrorist organization. As terrorism researcher Thomas Joscelyn has documented, several of them were fighting against our troops. Their capture was entirely proper. And predictably, many of them have joined forces with other jihadists held in Guantánamo Bay to riot and assault American guards.
The enemy in the Uighurs’ immediate sights is China, not the United States. That distinction, however, means more to Westerners than it does to Islamist militants, who divide the world not into Westphalian nation-states but into an Islamic realm forever pitted against dar al-Harb — tellingly, the “realm of war.” Yet it is this triviality on which the military based its incoherent argument that the Uighurs are indeed enemy combatants but are not a threat to the United States.
Given the military’s odd position, we can sympathize with the federal courts, at least to a point. Once the Boumediene majority ran roughshod over the Constitution and Congress’s careful program for reviewing military detentions, hundreds of detainee habeas corpus petitions were dumped on the lower courts with no guidance for reviewing them. In our view, the question of who is an enemy combatant is best addressed by the executive branch, judges having no expertise in managing military affairs. Nevertheless, it is to be expected that the court, once informed that Uighurs were not considered a threat to the U.S., would instruct the government that it had to present a better case to justify detention.
The prescribed remedy, however, is another matter. Border control is a key aspect of sovereignty. Thus the Supreme Court has long recognized that it is for the political branches, not judges, to manage entry into our country. Aliens have no right to be admitted, much less aliens trained as terrorists by an enemy with whom we are presently at war. Nor does a federal judge have authority to order such a thing. Further, the release order issued last week by Judge Ricardo Urbina violates federal statutory law. In the 2005 REAL ID Act, Congress explicitly provided for the exclusion from the U.S. of any alien who has received terrorist training or has belonged to an organization that promotes terrorism — against anyone. The Uighurs are ineligible on both grounds: Even if one accepts, for argument’s sake, the contention that their dispute is with Beijing, not us, they were trained by a terrorist group for the purpose of conducting operations against China.
Even in its excesses, the Supreme Court has acknowledged the seriousness of the terrorist threat. In its 2001 Zadvydas decision, which created a due-process right against unduly lengthy detention of deportable aliens, the justices added the caveat that government would be given more latitude in a case involving terrorism or other national-security threats.
The conduct of war and the handling of detainees, furthermore, implicate sensitive matters of diplomacy. Nearly three-fourths of the combatants to have passed through Gitmo have been repatriated. The State Department has worked diligently to find a country willing to take the Uighurs — in fact, State has already persuaded Albania to accept five of their countrymen. China wants these detainees back, but we cannot send them there without violating a treaty obligation against transfer to a country where persecution is foreseeable. And under pressure from Beijing, to say nothing of their own security interests, other countries have refused to accept them.
None of this mattered to Judge Urbina, whose ruling makes a daunting diplomatic task even more difficult. Even allowing that Judge Urbina, appointed by President Clinton in 1994, felt the Uighurs’ pain, one might hope he’d have reasoned that people who attend jihadist camps assume the risks of jihad. The judge worries about the Uighurs’ rights, but what about the rights of the American people? If the courts are going to presume to manage our national security, when do we get to the security part?
The federal appeals court in Washington has stayed Judge Urbina’s release order, and the government will seek to have it overturned. This must be done promptly. In the interim, with three weeks to go before an election now enveloped in economic strife, it is worth remembering that Barack Obama lauded the Boumediene decision and its augur of a return to Clinton-era counterterrorism-by-indictment. To the contrary, John McCain aptly panned Boumediene, warning that it would make us less safe. Once again, on a crucial question of national defense, McCain was right and Obama was wrong. Might we suggest that Sen. McCain might remind voters of that fact?