Sen. Dick Durbin (D., Ill.) is the leading congressional advocate of the plan to ship the terrorists being detained at Guantanamo Bay to a prison in his (and the president’s) home state — i.e., the scheme to redistribute federal taxpayer money to Illinois to buy a jail the state barely uses and should never have built. As detailed in my column on Thursday, he is also a leading proponent of the purported imperative to close Gitmo, based on the canard that its existence drives terrorist recruitment, resulting in more terrorism.
The senator has written an op-ed for The Hill arguing his case. He makes some extravagant claims designed to assure Americans that the transfer of detainees from Cuba to a prison inside our country will not result in their being released here. As he puts it:
No detainees transferred from Guantanamo to the United States will be released domestically. The president has signed two laws that would prohibit such release. Both laws include identical provisions barring the release of Guantanamo detainees on U.S. soil. In the extremely unlikely event a detainee is found not guilty, he will not be released inside the United States.
Senator Durbin does not tell us what laws he is talking about, but at least one of them appears to be the Homeland Security Appropriations Act of 2010, signed by President Obama on October 28. (I don’t know if he’s talking about two provisions in that one statute or if there is some other pertinent statute — but given that he says “both laws include identical provisions,” we need find the relevant provision in only one of them.) When a lawmaker posits a claim about a law but fails to quote or cite the law so we can compare his claim to the text, it pays to be wary.
Here, wariness proves to be justified. The relevant provision, Section 552 of the HSA Act, does not bar the domestic release of detainees. It merely bars the president from using congressionally appropriated funds to release the detainees. That’s fine as far as it goes. It would, for example, serve to stop the proposal floated earlier this year by Attorney General Eric Holder and National Intelligence Director Dennis Blair, which envisioned releasing some of the terrorists here and allowing them to live freely on public welfare payments. (With Democrats now pooh-poohing Republican fears that trained terrorists might someday be released here, it’s worth remembering that it was the Obama administration that made the suggestion in the first place. As Blair said back in April: “If we are to release them in the United States, we need some sort of assistance for them to start a new life. . . . You can’t just put them on the street.”)
Nevertheless, Durbin is being disingenuous — doubly disingenuous, in fact. First, the principal fear is no longer that the Obama administration will try to free the terrorists and relocate them here. It is that the federal courts will order the release of the detainees. And second, the senator’s brave assurance that if “a detainee is found not guilty, he will not be released inside the United States” is a smokescreen. As he well knows, most of the Gitmo terrorists are not going to be found guilty or found not guilty — they’re not going to be tried at all.
The main worry in this situation is the class of prisoners known to be dangerous based on foreign intelligence information and confessions that can’t be used in court. Those detainees are being held indefinitely under the laws of war. We have held millions of enemy prisoners on this basis throughout our history. But this war is the first in which federal judges, abetted by legislators like Senator Durbin, have been given the power to second-guess the judgments of our professional war-fighters, taking it upon themselves to decide who is an unlawful enemy combatant — or, as Congress now puts it, an “unprivileged enemy belligerent.”
Predictably, judges have proved hostile to indefinite detention without trial. Thus, they have made some preposterous rulings reversing the military’s enemy-combatant designations (e.g., the case of Khaled al-Mutairi, discussed here). The judges also reason that their newfangled power to review detention cases implies an unwritten power to order the release of detainees they’ve decided are not combatants. As the Left is fond of asking when it seeks to expand judicial authority: What is a right without a remedy?
One judge has already attempted to order the release of jihadists (the Uighurs) into the U.S. directly from Gitmo — a ruling that was reversed on appeal and is now before the Supreme Court. The district judge tried to free foreign jihadists and bring them into the country to live among us despite the facts that (a) they were physically outside the United States, (b) they had no legal right to enter the United States, and (c) they were specifically barred from entering the United States by an act of Congress. The 2005 REAL ID Act excludes aliens who have been members of a terrorist organization or received paramilitary training in a terrorist camp.
Both the Obama and Bush administrations have foolishly released dangerous detainees to other countries, knowing this would free them to go back to the jihad, as many have. Obama, in fact, released Binyam Mohammed to Britain despite the fact that Mohammed had plotted with “dirty bomber” Jose Padilla and 9/11 mastermind Khalid Sheikh Mohammed to carry out post-9/11 bombings in American cities. We can infer from this that the Obama administration has applied fairly lax standards in determining which detainees are no longer a threat, and who may, therefore, be extradited to nations willing to accept them. That suggests that the prisoners we are still holding — the last 200 or so from what started as around 800 Gitmo detainees – must be, at the least, more dangerous than Binyam Mohammed and the others we’ve released: pretty awful.
So we have custody of extremely dangerous terrorists who cannot be tried and who will not be taken off our hands by any trustworthy country. Their detention is now being scrutinized by judges who are skeptical of the traditional military practice of indefinite detention without trial. Some of us have implored Congress to enact rules of procedure for terrorist-detention hearings that would stop judges from favoring the terrorists over the military. But Democrats like Senator Durbin have turned a deaf ear, preferring to watch the judges make up the rules as they go along.
Congress, moreover, has not passed any law that either deprives federal courts of jurisdiction to entertain detainees’ release petitions or bars judges from ordering detainees to be released in the United States. A law denying the president funds to release the detainees is not a prohibition on the courts. And what if Congress did pass such a law? The courts easily could, and likely would, rule that it is unconstitutional. Remember, the Supreme Court has already ignored, and then invalidated on constitutional grounds, acts of Congress that attempted to divest the lower federal courts of jurisdiction over detainee cases.
Over a year ago, in the disastrous Boumediene case, the Supreme Court ruled that the detainees had at least some constitutional rights, even though they are situated outside the United States. And once they are physically inside the country, even illegal aliens enjoy a broad array of constitutional protections. In fact, the Obama Justice Department has explicitly recognized (in a Supreme Court brief submitted in the Uighur case) that the federal law makes a “critical distinction” between “an alien who has effected an entry into the United States and one who has never entered” — a distinction that, DOJ says, “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.”
Moreover, in 2001 (before the 9/11 attacks), the Supreme Court ruled in Zadvydas v. Davis that deportable aliens have a constitutional due-process right to be released into our country if the government fails to deport them in a timely manner. It’s true that Justice Stephen Breyer took pains to note that Zadvydas was not a case involving “terrorism or other special circumstances,” and that such national-security situations “might” create grounds justifying “forms of preventive detention.” But that was just dicta, and lower courts are not bound to follow it. And it is critical to understand that the prisoners at issue will be the ones judges will already have decided are not enemy combatants. As we’ve seen with the Uighur detainees, once a court ruled that they were not enemy combatants, the fact that they are jihadists who sought and obtained training in al-Qaeda camps was quickly forgotten.
Based on Boumediene, Zadvydas, and other alien-friendly jurisprudence, we can predict that, once the detainees are physically in the United States, there will be plenty of judges who will find: (a) that the detainees enjoy the same broad range of constitutional protections as illegal aliens; (b) that the judicial power to review detention necessarily implies a companion power to order the release of any detainees determined not to be enemy combatants; and (c) that detainees found not to be enemy combatants must be released inside the United States if no other country is willing to take them. If the judges base such rulings on the Constitution, it will not matter if Congress has enacted a statute barring release. It is black-letter law that a statute cannot override a command of the Constitution, and judges have long claimed the power to be the ultimate arbiter of what the Constitution commands — a claim that has been indulged by the political branches.
For what little it may be worth, I don’t think that claim should be indulged. There might have been an argument for it when courts were restrained, when they respected the superior institutional competence of the political branches in areas like national security. That, however, is a bygone era. Still, the notion of ignoring the courts is a pipe dream. What I am talking about would require a president willing to do what Franklin D. Roosevelt did in 1942 in the case of the Nazi saboteurs (Ex Parte Quirin): Advise the Supreme Court that the president, not the Court, is the constitutional actor responsible for conducting war and protecting the nation from foreign threats, and that he therefore had no intention of releasing enemy prisoners, regardless of the justices’ views on the matter.
Alas, though President Obama emulates FDR’s many power-grabbing proclivities, I am not holding my breath for him to follow the master’s lead on this one – or for Senator Durbin to urge that he do so. If the Gitmo detainees are transferred here, many will be released here.
Editor’s note: This piece has been amended since posting.