Their Rights vs What's Right
It is interesting to note what Andy McCarthy doesn’t argue in this carefully worded post on the Uighur Muslims — he doesn’t argue that they pose a threat to Americans, or that it is morally defensible to hold them. Instead he makes what I’ll assume is an accurate argument:
…just because courts have the power to review whether a prisoner is properly designated an enemy combatant does not mean they have the power to order the release into the United States of those found not to be enemy combatants.
Mr. McCarthy also argues that some Obama supporters are going to be sorely upset about this:
The Uighurs appealed, and today the Justice Department filed its responsive brief. Solicitor General Elena Kagan argued — consistent with the Bush administration position — that the Uighurs have no right to be released into the U.S.
Of course, it is perfectly consistent to say that these people “have no right” to be released into the United States, and that given how we’ve treated them we nevertheless possess a moral obligation to release them here. I don’t know whether the Obama Administration intends to adopt that position, but if they don’t they deserve strenuous criticism.
This is premised on my understanding that when people say these Uighur Muslims “received Al Qaeda training,” they are referring to the fact that they were shown how to fire a single gun in an Afghan village where they settled as refugees. Am I missing something?
The Real ID Act makes inadmissible for immigration purposes anyone who trained as a terrorist (20 of the original 22 Uighurs did) or associated with a terrorist origanization; by their own words, all admitted at their CSRTs they were associating with the ETIM while in Afghanistan. Rule of law. BTW, several also said they were trained by Abdul Haq who, on April 20, 2009, the Obama administration designated a terrorist, the current head of a terrorist organiztion (ETIM), and a member of al Qaeda’s shura council since 2005. Judge Urbina said last year after issuing his (since overturned) order they be brought to the U.S. and released free, “I expect that they will not be molested. I am a federal judge.” So, if they only are a threat to China and they very likely would not be “molested” by law enforcement surveillance, how many thousands of law enforcement personnel would it take to protect Chinese dimplomats in say D.C. and hundreds of Chinese workers working in say the new One World Trade Center where China has leased several floors? Just asking.
— Tim · May 30, 01:56 PM · #
You apparently are missing that any enemy of the Chinese government is an enemy of the U.S. Who knew?
— Greg Sanders · May 30, 02:06 PM · #
How’s that Rule of Law argument holding up against their indefinite detention without charges (7 years and counting, so far)?
— Chet · May 30, 02:53 PM · #
“How’s that Rule of Law argument holding up against their indefinite detention without charges (7 years and counting, so far)? — Chet”
It is holding up just fine if embrace Common Article 3 of the Geneva Conventions and consider the rulings of our Supreme Court (Hamdi v Rumsfeld, 2004). Both say indefinite detentions are lawful until the end of hostilities.
— Tim · May 30, 03:52 PM · #
Tim,
The Uighur Muslims aren’t a party to the hostilities in question!
— Conor Friedersdorf · May 30, 04:27 PM · #
I think the basic question…and I don’t know the answer…….is ….are we the good guyz?
Or just the marginally better guyz.
— matoko_chan · May 30, 05:11 PM · #
Conor:
Yes, as I demonstrated above, these 17 Uighurs were a party to the hostilities. I’ll expand on the point. A Uighur battalion fought with al Qaeda’s 055 Brigade in Afghanistan against the Northern Alliance and then continued to fight alongside the Taliban after our invasion. 2 of the 22 who were sent to Gitmo surrendered at Mazār-e Sharīf on November 9, 2001 (along with John Walker Lindh and lots of others). Most were already in ETIM training camps in Tora Bora when we invaded yet a couple escaped to them from elsewhere; a few were captured there. After we began bombing their camps in Tora Bora, most attempted to escape by crossing the border but were captured a few miles into Pakistan. The leader of the ETIM during that period shared the goals of violent jihad with OBL and held a long affiliation with al Qaeda (Pakistan troops killed him in 2003 and Abdul Haq took over).
Perhaps 7 years in Gitmo has mellowed them. Nope. They smashed a TV to the ground when they saw a commercial (a lady with bare arms) during a soccer game beamed into from the UAE was just a one off. Nope. A British visited Gitmo earlier this year and the Uighurs’ behavior was less than stellar. They were all jihadists and while China was likely those Uighurs’ favorite target, we’ll do a substitute. Of course, if they are running free in the U.S., they’ll have plenty of Chinese targets of opportunity and if Americans end up collateral damage, they will call that a bonus. Gitmo did not make them violent jihadist; they arrived their that way. The facts, like jihadists, don’t change.
But what the heck; let’s take a chance on them anyway. It is a big country and odds are it will not be another member of my family who ends up collateral damage like on 9/11. Who cares if we risk another attack. If we get hit again, it we be just us taking another one for the team of nation that could not give two you know what about America. Well, I care about America and my countrymen and say we should not take the chance. You have the right to think differently yet that is what I think.
— Tim · May 30, 06:37 PM · #
That’s a good response. I’m sorry for your loss.
— nicholas · May 30, 07:15 PM · #
But….wouldn’t it be a huge coup if we could actually reform a terrorist? Don’t people serve prison terms, pay their debt to society and become productive law-abiding citizens? Why do we have prisons if people can never reform?
What a meme-war victory that would be.
Isn’t our culture superior? Don’t we believe that?
Or did we originally just capture these guyz with the idea of life sentences.
Then why not just execute them?
— matoko_chan · May 30, 07:25 PM · #
Tim,
Could you link where you found the above info (or cite it if it’s not Online)? I’ll do some followup reading to see if you’re right and Hilzoy wrong.
— Conor Friedersdorf · May 30, 08:58 PM · #
You know, if you didn’t want to come off like a quivering chickenshit afraid of his own shadow, step one would be getting over your aversion to adult language. (Step two, of course, would mean not using 9/11 to justify senseless, illegal abuse of prisoners.)
Oh, and racist, to boot.
— Chet · May 30, 09:08 PM · #
Gotta dig Petraeus.
Closing the military prison at Guantanamo Bay would purge the U.S. of a symbol used by enemies to divide the nation, the head of the U.S. Central Command said Friday.
Army Gen. David Petraeus said the U.S. military is “beat around the head and shoulders” with images of detainees held in Guantanamo, the facility in Cuba President Barack Obama has vowed to close. He said closing Guantanamo and ensuring detainees are dealt with by an appropriate judicial system would bolster the nation’s war effort in Afghanistan and Iraq.
“I do believe very strongly that we should live our values,” he said. “Generations of soldiers have fought to defend those values, and we should not shrink from living them, from operationalizing them, on the battlefield.”
Wonder how long he can bear to remain republican.
— matoko_chan · May 30, 11:30 PM · #
It’s pretty dangerous, in my experience, to assume that anything Andrew McCarthy says is accurate.
— southpaw · May 31, 12:28 AM · #
I’ll just quote from a D.C. Circuit decision finding that one of the Uighurs was not an enemy combatant:
That’s here: http://pacer.cadc.uscourts.gov/common/opinions/200806/06-1397-1124487.pdf
Following that decision, the Bush administration reclassified all the Uighurs as “No Longer Enemy Combatants.” In a decision finding that the continued detention of the Uighurs was unlawful (but the court couldn’t do anything about it), the D.C. District Court said:
That’s here: Qassim v. Bush, Civ. No. 05-0497, at 5 (D.D.C. Dec. 22,
2005). (Sorry, couldn’t find a copy on the free side of PACER.)
These are factual findings of United States courts and determinations of the Bush Administration, and they are—so far as I can tell— completely inconsistent with Tim’s attempt to paint the Uighurs as violent threats to this country.
— southpaw · May 31, 01:39 AM · #
Tim wrote: “Who cares if we risk another attack. If we get hit again, it we be just us taking another one for the team of nation that could not give two you know what about America.”
Freedom isn’t free, as it were. It carries some inherent risk. If you want your family to be safe, have yourselves locked up in a Supermax prison.
— Jon H · May 31, 06:06 AM · #
Ironic to hear McCarthy talk about the rule of law. I thought in this brave new world of ours, the law was a strategic chit to be deployed against our enemies?
— vimothy · May 31, 02:26 PM · #
“completely inconsistent with Tim’s attempt to paint the Uighurs as violent threats to this country”
On the contrary, Uighurs are ten feet tall and can shoot lightening bolts from their eye balls.
— vimothy · May 31, 02:31 PM · #
Regarding General Petraeus, obviously, if Obama were interested in closing Guantanamo or doing what’s right for America rather than in being a self-righteous prick, he would have consulted first with the military, reached out to Dick Cheney and other Republicans, and had a bipartisan agreement, presented as a Pentagon initiative, to close the facility. (I think it’s safe to say that, privately, everyone in the Bush administration would agree that Gitmo failed in its basic purpose, of establishing a secure facility immune to judicial review, and thus it isn’t worth the public relations hassle. As Jack Goldsmith points out, the government has figured out other ways to deal with terrorists without judicial interference.) But self-righteousness is to Democrats like water to fish: they die without it.
— y81 · Jun 1, 12:50 AM · #
What is striking to me in the responses of Chet, Southpaw, Matoko, Jon and vimothy is the striking lack of empathy for the loss suffered by this person Tim who is commenting with you. He states a family member died in the 9/11 attacks. It could have been his brother, his father, his daughter – we are not told this and need not know. The fact is that he suffered a personal loss from a terrorist attack. In a civilized society that information should temper one’s response.
As to Southpaw’s legal argument, nothing is changed by citing the machinations of the Bush administration or case law findings in a court that holds no jurisdiction. As stated previously, these individuals were apprehended while escaping from a terrorist training facility. The law is clear, individuals associated with terrorist organizations or who trained as terrorists are inadmissible for immigration purposes. If one ignored the Real ID Act and allowed them entrance into the country as an apology to make up for the time they have spent in detention, they will certainly continue to behave as they have intended to, and the possibility of violence to our Chinese political guests and collateral damage to US citizens is a very real consideration. I would not find this an acceptable risk.
As they are not considered enemy combatants of the United States, it would seem they should be released somewhere. But only China is likely to take them, and then it would be into immediate custody followed by their execution.
I am afraid we are at a stand.
— nicholas · Jun 7, 04:21 AM · #
See:
Real ID Act of 2005, Sec 105
http://www.law.yale.edu/library/WebFiles/PDFs/RealID.pdf
and
Immigration and Nationality Act, Sec 212(a)(3)(b)
http://www.uscis.gov/propub/ProPubVAP.jsp?dockey=9b60c646835045a30ceca097f0ca1ba3
— nicholas · Jun 7, 04:54 AM · #