Jay Cunningham
10-21-08, 13:08
American Gun Owner = Trained Jihadist
The Uighur saga provides a window on Obama-style counterterrorism.
By Andrew C. McCarthy
Are you a bitter clinger? One of those American gun owners belittled by Sen. Barack Obama, filled with antipathy for people who aren’t like you? You know, people like foreign Muslims whose idea of a few weeks’ vacation is a course of paramilitary training at an al-Qaeda-affiliated camp?
Well, if you are, you’ll be pleased to know that an appellate judge — one of the Obama philosophical bent that will be seeded throughout the federal courts if the Senator is elected president two weeks from now — thinks you are every bit as dangerous as those trained terrorists.
Such is the latest lesson in the saga of the 17 Uighur detainees held at Guantanamo Bay.
The good news is that a divided panel of the federal appeals court in Washington has, at least for the moment, stayed district judge Ricardo Urbina’s order that these trained jihadists be released into the United States. The bad news is that the panel was divided, 2-1. And, to put it mildly, the reasoning of the dissenting judge, Clinton appointee Judith W. Rogers, is astounding.
The case will be argued to the appeals court on November 24.
Some quick background: The Uighurs are Chinese Muslims captured by coalition forces after the American invasion of Afghanistan. The men are jihadist trainees, all of whom received instruction in the paramilitary camps of the East Turkestan Islamic Movement — a designated terrorist organization affiliated with al-Qaeda.
The military has taken an incoherent position on the Uighurs, the sum of its haste to empty the much maligned Gitmo plus its stubborn, politically correct disregard for the tenets of jihadist ideology. Thus, these detainees are deemed not to be a threat to the United States, only to China, yet somehow still to be “enemy combatants.” Meanwhile, the State Department is desperately trying to find a country willing to accept the men. (State has previously persuaded Albania to take five other Uighur detainees.)
Though China would gladly take the Uighurs, U.S. treaty obligations forbid such repatriation because we have reason to think they’d be persecuted there. Moreover, because no other country wants trouble with the Chicoms, none is willing to step up to the plate to relieve our quandary.
The U.S. Court of Appeals for the D.C. Circuit told the government in June that it needed to come up with a better rationale for branding the Uighurs enemy combatants. Judge Urbina then dramatically upped the ante, not only concluding the detainees were not combatants but ordering them released into the United States. The government sought an emergency stay of that order so that the D.C. Circuit could hear its appeal.
That was the occasion for yesterday’s ruling, and for Judge Rogers to share her very interesting views. As the Washington Post reports (italics mine):
Justice Department lawyers have argued that only the president or Congress has the legal authority to order the Uighurs’ release into the United States. They have also said that immigration laws would preclude them from entering the country because they received weapons training at a camp operated by a designated terror organization.
Rogers rejected those arguments, writing that courts have the power to order the release under habeas corpus, a centuries-old legal doctrine that allows prisoners or detainees to challenge their confinement in federal court. The judge also rejected the argument that immigration laws would bar the Uighurs' entry, writing that such an interpretation would "rob" the men's rights of meaning.
Even if the men had received weapons training, she wrote, that "cannot alone show they are dangerous, unless millions of United States resident citizens who have received fire arms training are deemed to be dangerous as well."
Remarkable.
To begin with, the political branches are supreme in matters of border control. This is why, for example, even American citizens can be searched without warrant when entering or leaving the United States. The Supreme Court has long held that border control is a key aspect of sovereignty; it is for Congress to set conditions regarding who gets to come into our country, and for the president to execute those limitations as well as guard against the entry of people (or materials) who may be threatening.
As NR’s editors observed last week, Congress has included in the conditions it has set proscriptions against the entry of aliens who have had paramilitary training in terrorist camps or are members of terrorist organizations. The Uighurs are disqualified under both categories.
Step back for a second and note the contrast. We endured three years of commentariat teeth-gnashing when it became known that President Bush violated the FISA statute by conducting surveillance without warrants. This is not the occasion for rehearsing the merits of that debate (for anyone who cares, I've already had plenty to say about it — for example, here). But one can only marvel at how the minds of our intelligentsia work.
Why do they assume it is an imperious affront (some said an impeachable offense) for a president trying to defend the lives of Americans to run afoul of statutes, but it’s just peachy for a judge to violate statutes for the purpose of allowing trained jihadists to move into our country and live among our citizens? Let’s leave aside the obvious fact that a judge, with no institutional competence in security matters, is more apt to make a bad decision. The judge is politically unaccountable: We can get rid of a president who endangers us; what do we do about the judge?
Judge Rogers claimed that continued detention would deprive the Uighurs of their rights. Of course, alien detainees now have constitutional rights thanks to the Supreme Court’s 5-4 decision in the Boumediene case at the end of last term. Against history, precedent and common sense, the Court’s liberal bloc held that aliens are vested with Article I’s habeas corpus guarantee — the right to challenge one’s detention in court.
That was the feature of the ruling applauded by Sen. Obama. He says all this chitter-chatter about tension “between fighting terrorism and respecting habeas corpus” is a “false choice.” Really? So we can fight terrorist paramilitary training that threatens our citizens and respect habeas corpus by moving the trained terrorists into our citizens’ neighborhoods? No choice there, right?
In fact, habeas corpus is just a right of access to court. It doesn’t tell a judge what she is authorized to do. That is Congress’s job. If it is to be the case that “habeas corpus” means the judge can ignore Congress and do whatever she subjectively thinks “justice” requires, how is that anything other than a blank check?
Again, our legal elites told us the sky would fall and the Constitution lay in tatters if the president’s war powers were construed as a blank check to run roughshod over congressional enactments and judicial oversight. Fine, but then how do we rein in the imperial judiciary? Given their lack of accountability, aren’t judges the last officials who ought to be getting a blank check in a democratic society?
Most unbelievable of all, though, is Judge Rogers’s take on guns. Can you imagine drawing a moral and factual equivalence between United States citizens who own firearms and alien terrorist trainees who have gone to jihadist camps and received instruction in explosives, close-combat, assassination tactics, and jihadist ideology? The mind reels.
Sen. Obama has indicated that, if elected, he will return us to his vision of the “rule of law”: The pre-9/11 days when counterterrorism was the province of the federal courts. How reassuring that, as Colin Powell assures us, Obama is possessed of such “intellectual rigor.” After all, that’s what enables him to shun the simplistic Bush approach of regarding terrorists as wartime enemies . . . and all its attendant false choices.
Sure, the Uighurs may move in next door to you. But not to worry: Obama promises you’ll have the enormous satisfaction of knowing your reputation in the international community — in places like Iran, Saudi Arabia, and Pakistan — is now markedly improved. And you can sleep well at night knowing jurists just like Judith Rogers could soon be filling vacancies on federal courts throughout the country.
— National Review’s Andrew C. McCarthy chairs the Foundation for the Defense of Democracies’s Center for Law & Counterterrorism and is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books 2008).
http://article.nationalreview.com/?q=NzcyZjU2NWY4MjhkYjczYTg2ZmYyNmEyZTg0OGVkYmQ=&w=MA==
The Uighur saga provides a window on Obama-style counterterrorism.
By Andrew C. McCarthy
Are you a bitter clinger? One of those American gun owners belittled by Sen. Barack Obama, filled with antipathy for people who aren’t like you? You know, people like foreign Muslims whose idea of a few weeks’ vacation is a course of paramilitary training at an al-Qaeda-affiliated camp?
Well, if you are, you’ll be pleased to know that an appellate judge — one of the Obama philosophical bent that will be seeded throughout the federal courts if the Senator is elected president two weeks from now — thinks you are every bit as dangerous as those trained terrorists.
Such is the latest lesson in the saga of the 17 Uighur detainees held at Guantanamo Bay.
The good news is that a divided panel of the federal appeals court in Washington has, at least for the moment, stayed district judge Ricardo Urbina’s order that these trained jihadists be released into the United States. The bad news is that the panel was divided, 2-1. And, to put it mildly, the reasoning of the dissenting judge, Clinton appointee Judith W. Rogers, is astounding.
The case will be argued to the appeals court on November 24.
Some quick background: The Uighurs are Chinese Muslims captured by coalition forces after the American invasion of Afghanistan. The men are jihadist trainees, all of whom received instruction in the paramilitary camps of the East Turkestan Islamic Movement — a designated terrorist organization affiliated with al-Qaeda.
The military has taken an incoherent position on the Uighurs, the sum of its haste to empty the much maligned Gitmo plus its stubborn, politically correct disregard for the tenets of jihadist ideology. Thus, these detainees are deemed not to be a threat to the United States, only to China, yet somehow still to be “enemy combatants.” Meanwhile, the State Department is desperately trying to find a country willing to accept the men. (State has previously persuaded Albania to take five other Uighur detainees.)
Though China would gladly take the Uighurs, U.S. treaty obligations forbid such repatriation because we have reason to think they’d be persecuted there. Moreover, because no other country wants trouble with the Chicoms, none is willing to step up to the plate to relieve our quandary.
The U.S. Court of Appeals for the D.C. Circuit told the government in June that it needed to come up with a better rationale for branding the Uighurs enemy combatants. Judge Urbina then dramatically upped the ante, not only concluding the detainees were not combatants but ordering them released into the United States. The government sought an emergency stay of that order so that the D.C. Circuit could hear its appeal.
That was the occasion for yesterday’s ruling, and for Judge Rogers to share her very interesting views. As the Washington Post reports (italics mine):
Justice Department lawyers have argued that only the president or Congress has the legal authority to order the Uighurs’ release into the United States. They have also said that immigration laws would preclude them from entering the country because they received weapons training at a camp operated by a designated terror organization.
Rogers rejected those arguments, writing that courts have the power to order the release under habeas corpus, a centuries-old legal doctrine that allows prisoners or detainees to challenge their confinement in federal court. The judge also rejected the argument that immigration laws would bar the Uighurs' entry, writing that such an interpretation would "rob" the men's rights of meaning.
Even if the men had received weapons training, she wrote, that "cannot alone show they are dangerous, unless millions of United States resident citizens who have received fire arms training are deemed to be dangerous as well."
Remarkable.
To begin with, the political branches are supreme in matters of border control. This is why, for example, even American citizens can be searched without warrant when entering or leaving the United States. The Supreme Court has long held that border control is a key aspect of sovereignty; it is for Congress to set conditions regarding who gets to come into our country, and for the president to execute those limitations as well as guard against the entry of people (or materials) who may be threatening.
As NR’s editors observed last week, Congress has included in the conditions it has set proscriptions against the entry of aliens who have had paramilitary training in terrorist camps or are members of terrorist organizations. The Uighurs are disqualified under both categories.
Step back for a second and note the contrast. We endured three years of commentariat teeth-gnashing when it became known that President Bush violated the FISA statute by conducting surveillance without warrants. This is not the occasion for rehearsing the merits of that debate (for anyone who cares, I've already had plenty to say about it — for example, here). But one can only marvel at how the minds of our intelligentsia work.
Why do they assume it is an imperious affront (some said an impeachable offense) for a president trying to defend the lives of Americans to run afoul of statutes, but it’s just peachy for a judge to violate statutes for the purpose of allowing trained jihadists to move into our country and live among our citizens? Let’s leave aside the obvious fact that a judge, with no institutional competence in security matters, is more apt to make a bad decision. The judge is politically unaccountable: We can get rid of a president who endangers us; what do we do about the judge?
Judge Rogers claimed that continued detention would deprive the Uighurs of their rights. Of course, alien detainees now have constitutional rights thanks to the Supreme Court’s 5-4 decision in the Boumediene case at the end of last term. Against history, precedent and common sense, the Court’s liberal bloc held that aliens are vested with Article I’s habeas corpus guarantee — the right to challenge one’s detention in court.
That was the feature of the ruling applauded by Sen. Obama. He says all this chitter-chatter about tension “between fighting terrorism and respecting habeas corpus” is a “false choice.” Really? So we can fight terrorist paramilitary training that threatens our citizens and respect habeas corpus by moving the trained terrorists into our citizens’ neighborhoods? No choice there, right?
In fact, habeas corpus is just a right of access to court. It doesn’t tell a judge what she is authorized to do. That is Congress’s job. If it is to be the case that “habeas corpus” means the judge can ignore Congress and do whatever she subjectively thinks “justice” requires, how is that anything other than a blank check?
Again, our legal elites told us the sky would fall and the Constitution lay in tatters if the president’s war powers were construed as a blank check to run roughshod over congressional enactments and judicial oversight. Fine, but then how do we rein in the imperial judiciary? Given their lack of accountability, aren’t judges the last officials who ought to be getting a blank check in a democratic society?
Most unbelievable of all, though, is Judge Rogers’s take on guns. Can you imagine drawing a moral and factual equivalence between United States citizens who own firearms and alien terrorist trainees who have gone to jihadist camps and received instruction in explosives, close-combat, assassination tactics, and jihadist ideology? The mind reels.
Sen. Obama has indicated that, if elected, he will return us to his vision of the “rule of law”: The pre-9/11 days when counterterrorism was the province of the federal courts. How reassuring that, as Colin Powell assures us, Obama is possessed of such “intellectual rigor.” After all, that’s what enables him to shun the simplistic Bush approach of regarding terrorists as wartime enemies . . . and all its attendant false choices.
Sure, the Uighurs may move in next door to you. But not to worry: Obama promises you’ll have the enormous satisfaction of knowing your reputation in the international community — in places like Iran, Saudi Arabia, and Pakistan — is now markedly improved. And you can sleep well at night knowing jurists just like Judith Rogers could soon be filling vacancies on federal courts throughout the country.
— National Review’s Andrew C. McCarthy chairs the Foundation for the Defense of Democracies’s Center for Law & Counterterrorism and is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books 2008).
http://article.nationalreview.com/?q=NzcyZjU2NWY4MjhkYjczYTg2ZmYyNmEyZTg0OGVkYmQ=&w=MA==