October 20, 2008
By Andrew M. Grossman
Importing terrorists hardly seems like a winning strategy to
protect the nation's security. But that's what one federal judge
says we have to do.
On Oct. 7, D.C. District Court Judge Ricardo Urbina ruled that
17 Chinese Muslims captured fleeing terrorist training grounds in
Afghanistan in late 2001 must be set free in the United States. His
rationale: The detainees "were not waging war on the United States,
have never waged war on the United States, [and] were not training
to wage war on the United States."
That's probably true. The detainees, ethnic Uighurs, were
training to wage terrorist war on China. To that end, they studied
weapons and paramilitary techniques alongside al Qaeda and other
jihadi allies. So while they might not want to attack America, who
is to say they wouldn't take a shot at China's embassy or its
But if Judge Urbina had had his way, they would be loose in the
Washington, D.C., area by now. Fortunately, the D.C. Circuit put a
stay on his order so the government can make its case.
A couple points:
First, this is judicial activism, plain and simple. The
political branches are responsible for overseeing entry into the
United States. It's unprecedented for a judge to order the
government to bring a foreigner on foreign soil into the United
States and set him free, without respect to immigration law or
The judge's command was downright imperious: "I do not expect
that these Uighurs will be molested or bothered by any member of
the United States government. I'm a federal judge, I've issued an
order, and what it says it says and what it implies, it implies,
and that's comity among the branches. Nothing will happen to these
people until Thursday when this hearing convenes."
So interbranch comity, rules Judge Urbina, means doing what the
judiciary says to do, law be damned.
Second, the case illustrates the need for a comprehensive
detention policy to prevent terrorist activity. We don't have one
now. Guantanamo is a stop-gap solution at best, and the Supreme
Court has thrown its continued viability into question. What do we
do with those who would wage war on the U.S. and our allies, but
haven't done so yet? Congress has been unwilling to even ask the
question so far.
And that leads to a third point: We have to make tough choices
in detainee affairs, as the Uighurs' case illustrates so well. The
United States wants to release them, but no country wants them -
other than China, which has some unfriendly ideas about what it
might do with them.
Releasing trained terrorists allied with America's enemies into
the United States isn't such a great idea, either. There are no
easy answers about what to do with enemy combatants, nonenemy
combatants and other miscellaneous rogues who have taken up arms as
part of nonstate entities like al Qaeda. If Congress doesn't answer
these questions (and maybe even if it does), the courts will, even
though they're poorly equipped to make these kinds of
And that is the fourth and final point: The courts, by and
large, really don't seem to understand any of this. The Supreme
Court has taken the lead in tying the executive branch's hands in
dealing with detainees, an easy course of action because it doesn't
have to articulate a positive strategy for what to do with them.
This hasn't been helpful, it hasn't made America safer, and it
hasn't done anything to improve America's respect for rights or
standing in the world.
If the courts had to grapple with the consequences of their
decisions, rather than just basking in praise from cosmopolitan
elites over sticking it to the Bush administration once again, one
suspects their approach to these cases would be quite
In fact, a smart congressman named Rep. Louie Gohmert of Texas
reached that same conclusion and proposed legislation to make the
courts understand the consequences of their decisions. His "Giving
Inmate Terrorists More Opportunities (GITMO) Act of 2008" would
"provide for the transport of the enemy combatants detained in
Guantanamo Bay, Cuba, to Washington, D.C., where the United States
Supreme Court will be able to more effectively micromanage the
detainees by holding them on the Supreme Court grounds."
That modest proposal appears saner than Judge Urbina's order to
let the Uighur detainees loose in Washington. It's a black mark
against Congress and the courts that we've reached this point.
Grossman, is senior legal policy analyst in the Center for
Legal and Judicial Studies at the Heritage Foundation
First appeared in the Washington Times
Importing terrorists hardly seems like a winning strategy to protect the nation's security. But that's what one federal judge says we have to do.
Andrew M. Grossman
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