What could Eric Holder’s wall be telling him about the Uighurs?

It was just three weeks ago that the attorney general took the podium at the United States Military Academy to help inaugurate West Point’s new Center for the Rule of Law. Addressing the young cadets, he reflected on the role models who’d helped him develop his “unwavering commitment to the fundamental principle of the rule of law.” As he explained:

There is a tradition at the department that each attorney general chooses which portraits of prior attorneys general to place on the walls of his office. . . . One of the portraits I chose was that of former attorney general and Supreme Court justice Robert Jackson, a man who authored perhaps the most important court opinion on presidential power in the last century. Though only a concurring opinion, Jackson’s outline in the Youngstown case of three situations in which presidential powers fluctuate remains the gold standard to this day for defining the extent to which the president can operate consistent with the rule of law. Jackson’s standards are as informative today as they were prescient 57 years ago.

The attorney general surely overstates the significance of Justice Jackson’s famous concurrence in the 1952 “Steel Seizure” case (Youngstown Sheet & Tube v. Sawyer), in which the Court invalidated Pres. Harry Truman’s attempt to nationalize the steel mills during the Korean War. The tripartite analysis Jackson offered was elementary: Executive power is at its highest point when the president acts consistently with express congressional authorization, at its lowest ebb when he acts in contravention of a statute, and somewhere in the middle when he acts without the legislature’s weighing in one way or another. No other justice on the Court was moved to join the concurrence, Jackson himself called it “somewhat over-simplified,” and, recounting the opinion nearly 30 years later, the Court (in 1981’s Dames & Moore v. Regan) described Jackson as having simply “elaborated in a general way the consequences of different types of interaction between the two democratic branches in assessing Presidential authority to act in any given case.”

All the same, though, the concurrence was of monumental importance to this attorney general — until about five minutes ago.

Holder was one of the cadre of left-wing legal lights who spent several years denouncing Pres. George W. Bush for purportedly conducting illegal surveillance (A.K.A. “domestic spying”) against American citizens. Following the 9/11 attacks, like every wartime president since the technology has been available, Bush ordered his intelligence agencies to monitor enemy communications — including communications involving suspected al-Qaeda collaborators that crossed into or out of the United States. It was an obvious defensive measure to take, it was not done in total secrecy (top members of Congress from both parties were briefed), and it was part of the strategy that kept us free from domestic terror attacks for seven years. But there was a problem. Bush’s “Terrorist Surveillance Program” did not comply with the letter of a congressional statute, the 1978 Foreign Intelligence Surveillance Act (FISA): It did not undertake the laborious process of seeking permission from federal judges before eavesdropping. For Holder and his allies, who were willing to compromise national security to score political points, this was an opportunity. The Jackson concurrence was dug out of the lawfare arsenal and used to beat George Bush like a mule. Painting the commander-in-chief as a Nixonian rogue, the Left twisted “lowest ebb” into “illegality” — as in, the president acts illegally whenever he transgresses a statute. To Holder, it did not matter that court decisions had held, despite FISA, that the president retained constitutional authority to order national-security wiretaps against agents of foreign powers. It did not matter that this had been the express position of the Clinton administration, in which Holder had served as deputy attorney general. Indeed, it did not matter that, in a 1994 memorandum, Walter Dellinger, then head of the Clinton Justice Department’s Office of Legal Counsel, had described the Jackson concurrence as “recognizing existence of President’s authority to act contrary to a statutory command.”

No, as far as Holder and his gang were concerned, Congress had enacted a statute and the president had not abided by it — case closed. Holder didn’t want to hear anything about the president’s solemn duty to use the powers at his disposal to protect the American people from hostile foreign threats — a duty that (unlike mollifying Congress, ensuring maximum due process for alien jihadists, and running General Motors) actually requires a president. Speaking for the Obama campaign at a June 2008 speech, Holder railed that government had “approved of secret electronic surveillance against American citizens,” decrying the measure as one of the Bush administration’s “needlessly abusive and unlawful practices” that betrayed our commitment to, yes, “the rule of law.”

So now Holder is the attorney general. And unlike his Bush administration predecessors, he is not looking to keep terrorist communications out of the United States; he is trying to usher terrorist operatives into the United States. To appease the same antiwar Left that Holder was courting with his June 2008 stemwinder, President Obama began his administration by rashly promising to close the detention camp at Guantanamo Bay, where we are still holding approximately 240 jihadists, most of them graduates of al-Qaeda training camps. Obama had no plan for accomplishing this commitment, so now, to fulfill it, he finds himself needing to release many, if not most, of them.

For that, he will need help from the many countries that — like the Obama campaign — have slandered Gitmo for years as a human-rights atrocity. Naturally, those countries would prefer not to have terrorists roaming their streets and are not leaping at the chance to take them off our hands. So, in a cockamamie effort to lead by example, the Obama administration figures that if we are nutty enough to put out the welcome mat for a few terrorists, other nations may be persuaded to endanger their citizens too.

But Holder has a problem: federal immigration law. Sen. Jeff Sessions (R., Ala.), a former federal prosecutor and Alabama attorney general who is now the ranking Republican on the Judiciary Committee, has written to remind Holder that, edified by war and a dozen years of jihadist attacks, Congress amended that law in 2005 to bar the admission of alien terrorists into the United States. Thus, Section 1182 of Title 8, United States Code, clearly provides that an alien “is inadmissible” if any one (or more) of the following applies:

‐he “has engaged in a terrorist activity”;

‐the government “knows, or has reasonable ground to believe,” he “is engaged in or is likely to engage after entry in any terrorist activity”; ‐he “has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity”; ‐he “is a representative . . . of . . . a terrorist organization . . . or a political, social, or other group that endorses or espouses terrorist activity”; ‐he “is a member of a terrorist organization” (“unless the alien can demonstrate by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization)”; ‐he “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization”; or ‐he “has received military-type training . . . from or on behalf of any organization that, at the time the training was received, was a terrorist organization.” The alien jihadists that Holder wants to release into the United States — where they would live freely on subsistence payments provided by the American taxpayers they were training to kill — are all inadmissible on multiple prongs of the statute. It’s not even a close question.

In testimony on the Hill Thursday, the evasive attorney general promised skeptical senators like Richard Shelby (R., Ala.) that “with regard to those who you would describe as terrorists, we would not bring them into this country and release them, anyone we would consider to be a terrorist.”

Americans ought to have deep doubts about making fitness for admission into the United States dependent on whether an alien is someone President Obama or Attorney General Holder would “consider to be a terrorist.” Obama’s decades-long friendship with Weather Underground terrorists Bill Ayers and Bernardine Dohrn, and Holder’s facilitation — over the vigorous objections of the FBI, other law-enforcement agencies, and victims’ families — of President Clinton’s 1999 pardons to FALN terrorists, make their judgment in this regard suspect. And notwithstanding Holder’s intimation to the contrary, the standard is also not the subjective view of Senator Shelby or any other member of Congress. Instead, as Holder likes to say, we live under “the rule of law.” In this case, that’s Section 1182.

The Uighur Muslim detainees whom Holder would relocate to our country are involved in a separatist jihad against China. That is what induced our military prosecutors to assert — in preposterous avoidance of jihadist ideology — that they are a threat only to the Chinese, not to us. But under the governing statute, it doesn’t make the slightest bit of difference. The Uighurs are affiliated with East Turkestan Islamic Movement, an al-Qaeda franchise that has been formally designated as a terrorist organization under U.S. law. As terrorism expert Thomas Joscelyn documents, their training was orchestrated by a terrorist named Abdul Haq, a member of al-Qaeda’s Shura Council (its top advisory circle). Even if you buy the fiction that their only enemy is China (and as Joscelyn relates, there is a slew of counter-evidence), they still came to Afghanistan to obtain terrorist paramilitary training so they could go back and “cause death or serious bodily harm” in China. There’s not a snowball’s chance in hell that they didn’t know why they were at the training camps, where explosives construction and assassination tactics are taught, and their training thus served to “endorse and espouse terrorist activity.” Under the law, it would be illegal to grant the Uighurs entry into the United States. That law is supported by Justice Jackson’s Youngstown concurrence — the opinion Holder says he is reminded of whenever he looks up at his wall. Against that concurrence, President Bush had salient constitutional arguments on his side. He was the commander-in-chief during a war authorized by Congress, ordering the penetration of enemy communications to protect the American people from additional salvos following the most devastating domestic attack by a foreign enemy in American history. Supreme Court authority tracing to the Civil War Prize Cases affirmed his obligation to repel foreign attacks regardless of whether Congress acted. Federal appellate courts had repeatedly upheld the president’s authority to conduct warrantless surveillance for national-security purposes. By contrast, President Obama and his attorney general can point to no similar arguments to support endangering Americans — and there can be no denying that the Constitution empowers Congress to fix standards for immigration into the United States, which it has done in Section 1182.

When I was a federal prosecutor, I kept a picture on my wall, too. It was a surveillance photo snapped by the FBI in 1989. It depicted several jihadists toting firearms at a paramilitary training session they’d conducted in Calverton, Long Island. The circumstances were alarming, but the men hadn’t attacked any Americans, so the FBI decided they were harmless enough. The investigation was dropped. I kept the picture on my wall to remind myself that, four years later, the men in the picture bombed the World Trade Center.

It would be nice if the attorney general remembered why he put Justice Jackson’s portrait on the wall. It would be better still if the reason was to heed the justice’s words rather than exploit them for partisan sniping.