Courts ought to butt out of how the administration disposes of detainees at Guantanamo Bay. They are not defendants; they are held “as enemies under the laws of war.” And besides, as the Supreme Court held after World War II, it “is inherent in the executive power to control the foreign affairs of the nation.”
What about the Geneva Conventions, you say? Forget it: They don’t create any enforceable rights for these detainees, and federal judges have no business entertaining claims based on them — including claims rooted in the Conventions’ Common Article 3, which has no bearing on this situation. And don’t tell us about how U.S. statutory law might help the detainees. Gitmo is part of Cuba; it’s not sovereign U.S. territory. The judicial power to enforce U.S. law “does not have extraterritorial application and therefore does not apply to petitioners at Guantanamo Bay.” There is, moreover, nothing in the U.S. Constitution that entitles these aliens to relief — on that, a conservative-leaning panel of the D.C. Circuit had it just right when it reversed that bleeding-heart, Clinton-appointed district judge.
Sound familiar? You must figure I’ve dusted off a copy of Dick Cheney Does the Imperial Presidency — or maybe that I’m reading from some relic those Constitution-shredders in the Bush Justice Department left behind.
I am actually reading from the brief submitted to the Supreme Court last week by Pres. Barack Obama’s Justice Department. As the DOJ announced, in what’s becoming its weekly contribution to the Friday Night Embarrassing News Dump, the brief sets forth the administration’s opposition to the Uighurs, Chinese nationals held at Gitmo who are claiming a right to be released in the United States.
Captured in Pakistan after receiving terrorist training in Afghanistan, the Uighurs are the antiwar Left’s cause célèbre. Human-rights activists are thus crestfallen after Obama’s decision to fight any effort by the federal courts to direct their transfer into the U.S. — especially given that the seemingly imminent release of these trained terrorists to live among us (on public welfare, no less) has been dangled publicly by Attorney General Eric Holder and National Intelligence Director Dennis Blair. But the dangling backfired, generating public ire and congressional pressure that caused the president to reverse course, just as he has done on prisoner-abuse photos, military tribunals, indefinite detention, terrorist surveillance, etc.
Given the Obama campaign’s derision of Bush national-security policies that President Obama has largely adopted, his Justice Department’s brief is a remarkable document. For example, after Holder’s ballyhooed
purging of the terms “war” (in favor of “overseas contingency operation”) and “enemy combatant” (in favor of the unwieldy “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations”), one can’t help but be startled by the Justice Department’s matter-of-fact description of most Gitmo detainees (i.e., those other than the Uighurs) as “individuals currently detained as enemies under the laws of war.”
Further, while he probably shouldn’t hold his breath waiting for Holder’s apology phone call, Rep. Dan Lungren (R., Calif.) will no doubt find Justice’s brief quite interesting. Less than three weeks ago, when the attorney general testified before the House Judiciary Committee, Lungren pressed him on whether
Obama’s idea of closing Gitmo and moving detainees into our country would not be a blunder. “As you know,” Lungren pointed out to Holder, “their being in the United States gives them an attachment to the Constitution they might not otherwise have, and, therefore, they have the full panoply — or, arguably, they may have the full panoply of Constitutional rights.”
This legal ramification of physically transferring alien detainees into the U.S. (which is to say, into the territorial jurisdiction of the federal courts) was undeniable — unless, of course, you were Eric Holder. The attorney general
stubbornly refused to concede Lungren’s point. “I’m not sure about that,” he maintained. He declined to budge beyond saying “I suppose, yeah,” it was possible that some lawyer might put such a dubious argument “in a brief.”
We now know exactly who that lawyer is: Elena Kagan, the solicitor general in Holder’s department.
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