Scrutinizing Holder’s Actions on Guantanamo — And Beyond
Attorney General Eric Holder announced last month that some of the detainees currently housed at Guantanamo may be released into the U.S. This reportedly would include 17 Uighur detainees who received military training in terrorist camps in Afghanistan. National Intelligence Director Dennis Blair went so far as to declare that those released might get some sort of public assistance to “start a new life.” (Perhaps a flat screen TV too?)
Senator Jeff Sessions, a former prosecutor and judge, clearly did not like what he was hearing. On April 2, he wrote a letter to Holder. It seems there is a legal problem with this scheme — aside from the political firestorm which would follow the release of terror trainees into the U.S. The letter, which was made available to PJ Media, reads in part:
Recently, the United States Court of Appeals for the District of Columbia Circuit held in Kiyemba v. Obama, 555 F. 3d 1002 (D.C. Cir. 2009), the federal courts lack the constitutional authority to order the release of the Uighur detainees into the United States. … (“[N]ever in the history of habeas corpus has any court thought it had the power to order an alien held overseas brought into the sovereign territory of a nation and released into the general population.”) Accordingly, the Obama administration is under no obligation to release the Uighurs or any other Guantanamo detainees into the United States. In fact, the administration is likely legally barred from admitting the Uighurs or other dangerous detainees into the United States.
In 2005, Congress enacted a clear prohibition on the admission of any alien who had engaged in various forms of terrorist activity or training. The prohibition, which is codified at 8 U.S.C. Section 1182(a)(3)(B), includes a range of terrorist-related activities, including receiving military-type training “from or on behalf of any organization that, at the time the training was received, was a terrorist organization.” … The Uighurs received military training at camps run by the Eastern Turkistan Islamic Movement, a known terrorist organization. Accordingly, the Uighurs should be deemed inadmissible to the United States under federal law. Other Guantanamo detainees appear to fall within the disqualifying provisions of Section 1182(a)(3)(B) and would similarly be deemed inadmissible.
Sessions also queried Holder as to what “legislative authority, if any, exists” for providing detainees with a “new lease on life” stipend.
Well, it would be odd indeed that the attorney general, before advertising the administration’s intentions, would not have first examined whether a policy directive of the administration ran afoul of federal law. But then as we saw this week, Holder is a man on a mission — to make sure the Obama policy directives get no legal push back from the Justice Department.
This week the Washington Post revealed that Holder had overridden the legal finding of the Office of Legal Counsel (OLC), which determined that the legislation to provide voting rights for the District of Columbia was unconstitutional. Conservative critics were quick to point out that it was just this sort of political arm-twisting of career attorneys which brought scorn upon (and eventually the resignation of) George W. Bush’s attorney general, Alberto Gonzales. And it suggested that Holder’s promises during his confirmation hearing that he would maintain his ”independence” were empty. As Ed Whelan, former deputy of OLC, explained:
At his recent confirmation hearing, a chastened Holder assured senators that he had learned from the past and was committed to upholding the department’s high standards. He specifically promised not to politicize DOJ’s legal positions: “We don’t change OLC opinions simply because a new administration takes over,” he said. Any review “will not be a political process, it will be one based solely on our interpretation of the law.”
Well that what then, and this is now. And now his conduct has given even the Washington Post editors “pause” and spurred their call for release of all the relevant memos and opinions. Perhaps he will do so, but this is not an administration that has been easily moved to change course, especially when conservative critics are leading the charge. So where does this leave us?
Perhaps it is time for Congress to step up to the plate.While Holder may have pulled a fast one in the confirmation hearing, there is no reason for Congress to compound its error. What is sorely lacking here, both on the detainee issue and on D.C. voting rights, is congressional oversight. Sessions deserves praise for firing off a letter on the release of detainees. And Sen. John Cornyn likewise gets kudos for his own letter demanding the OLC’s legal opinion on D.C. voting rights. But there is no substitute for a public hearing and sharp questioning of Holder. There is nothing quite so illuminating, as we learned during the Bush years, as watching the attorney general explain what he is up to and whether he is actually fulfilling his role as legal watchdog, rather than political enabler.
Under the Bush administration, Sens. Patrick Leahy and Chuck Schumer would be certain to drag the attorney general in front of the cameras and start hammering away at the first hint that he had given insufficient attention to career attorneys’ legal research or neglected legal restrictions on the government’s policy objectives. But now they have zero interest in quizzing the Democratic administration’s top lawyer. Some public pressure might be brought to bear on them, but they are unlikely to be swayed by pleas for them to fulfill their Constitutional obligations. So where are the Republicans?
Arlen Specter, ranking minority leader on the Judiciary Committee, has not spoken up about any of this. Emails from this reporter first to his Senate office and then to the communications director for the Judiciary Committee asking for comment and inquiring whether he intends to seek a hearing have not yet elicited any response. (The former was polite enough to direct me to the latter which remains mute.) But then Specter wound up voting to confirm Holder, so it might be uncomfortable for him to underscore that he was snookered by Holder’s promises of independence.
Republicans, however, are not without procedural tools to demand proper congressional oversight. They could well hold up the controversial nomination of Dawn Johnsen to head the OLC, as well as other Justice Department nominees, until they get a full accounting of Holder’s interaction with staff attorneys and an explanation as to how he seriously he is taking his obligations to examine the legality of the administration’s actions.
For now, we are left to ponder whether Holder is serving up just what the administration wants to hear (as was alleged in his role in controversial Clinton-era pardons) or whether he really is the man of integrity his supporters claimed him to be. Right now the available evidence suggests he is a compliant figure uninterested in providing objective legal advice and constitutional discipline for an administration badly in need of both.
Ms Rubin
Thank you for your excellent report and your efforts to preserve the Rule of Law in the United States and prevent suspected terrorists from being admitted into this country.
Both Eric Holder and Barack Obama, in their heart of hearts, want to stick it to white people. Arlen Specter is simply another politically correct “moderate” Republican. On a gut level, they all perceive whites as a cancer on the Earth. Those incarcerated at Guantanomo are ultimately considered as victims of racism. America owes them big time. They therefore need to be released and provided with financial assistance to make it in our country. It’s the least that we can do. Holder wouldn’t even think of releasing these prisoners if they possessed blue eyes and blond hair.
The West has little chance of survival unless we confront race guilt. This mindset renders us incapable of defending ourselves. We are in deep danger. We cannot afford to continue being inhibited. Time is running out.
If this doesn’t constitute misfeasance and nonfeasance (if not also malfeasance) in office, I can’t imagine what would. Impeachment is looking like a real option.
Isn’t bringing someone from Guantanamo to the US the same as bringing someone from American Samoa, Guam, Marshall Islands, Federated States of Micronesia, Northern Marianas, Palau, Puerto Rico or U.S. Virgin Islands? That is, legally.
Why are people concerned about bringing prisoners from Gitmo to the US? They are going to be jailed and kept inside secured prisons.
If someone is to be released, why aren’t they deported to their country of citizenship?
I would expect simple answers to simple questions.
Why are people concerned about bringing prisoners from Gitmo to the US? They are going to be jailed and kept inside secured prisons.
More naivete from the left. They will be released rather than tried. Try getting a jury to convict any of these.
Even if you could select a non-bribable jury, the jurors, prosecutors judges and witnesses will have to wear bags over their heads or risk being targeted by the accused’s community. Send them back from whence they came.
@4. vivo:
Unfortunately some detainees can’t be deported to their home country because of the threat of persecution. My personal thought is that any detainee that cannot be found guilty in a court of law should be granted political asylum in the US – the nature of their extended detention could make any deportation problematic.
Despite the prohibition on bringing trained fighters into the USA, without proving their guilt on criminal charges, there is no basis to assert that they should not be granted asylum. The failure in this case would be in arresting and detaining individuals without having sufficient evidence to justify their detention.
Peace.
DS
“Why are people concerned about bringing prisoners from Gitmo to the US? They are going to be jailed and kept inside secured prisons.”
No:
“National Intelligence Director Dennis Blair went so far as to declare that those released might get some sort of public assistance to “start a new life.””
“why aren’t they deported to their country of citizenship?”
Because Transnational Progressive types are afraid they’ll be tortured or killed by their government.
Simple enough for ya?
I agree with David Thomson about Obama and Holder. They both have the same mindset of payback. Their obsession with the white race and “getting even” is going to really mess up this country. Rev. Wright’s church was all about that too which is why Obama spent 20 years drinking the Rev’s Kool Aid.
Vivo,
1) Simple answer, no. None of them are U.S. Citizens or U.S. Nationals (and there is a difference in status amongst the examples you mention), they are they are (or were called) enemy combatants captured on a battlefield by the military. Under the Geneva Convention, they don’t qualify for our Constitutional protections. In truth, they don’t qualify for Geneva protections as they are not uniformed military of a signatory (or any) state.
2) By closing the military detention center in Gitmo and moving the current and future detainees to civilian prisons in effect grants them the same legal status as an illegal alien arrested and convicted in the U.S. This creates an unintended consequence of going into battle (and abrogates Geneva) wherever our military is deployed, the enemy may get full U.S. constitutional protections, while the military does not. That means the military would become effectively deputized U.S. federal law enforcement agents worldwide, wherever they may be employed. We would truly be the “policemen of the world”. Also, let’s imagine the restrictions our commanders on the battlefield would have. It would be easier and smarter to not take prisoners.
3) Many of those countries either won’t take them (especially European), or WILL execute them (China). Others, it appears, that we HAVE remanded them to (Yemen, Saudi Arabia), do little or nothing to prevent them from returning to terrorist groups.
Eric Holder could not wait to investigate Sheriff Joe Arpaiao from Maricopa County, Arizona, a champion of the law, who is now under investigation by the Justice Department.
Of course, pressure from vocal Hispanic radical organizations, such as La Raza Unida and others, who feared the Sheriff, was behind.
Add to add, Pelosi’s statement that workplace raids are un-American, and how Obama’s administration has stopped these raids, the boldness of the illegal immigrants is growing by the day.
California is locked Democrat, but the attempt here is also to change the electoral vote in other states like New Mexico and Arizona by allowing an influx of Mexicans and other Hispanic thus making sure a Republican victory in the future is almost impossible.
4. vivo
“Why are people concerned about bringing prisoners from Gitmo to the US? They are going to be jailed and kept inside secured prisons.”
Where they will proselytize and infect the other inmates with the Jihad virus, inmates that in many cases, already resent if not hate the US.
Indeed the inmates are running the asylum. Why isn’t the congress impeaching these judges? These judges are making laws and that is the job of the congress, but then that is what the Constitution says so who cares.
Eric Holder’s law office is representing many of the Gitmo terrorists; therefore, he has a severe conflict of interest.
Releasing said terrorists in the United States & on welfare is just adding salt into the wound. Politically, this is suicide for all involved.
Expect another terrorist attack when these terrorists are set free in the United States. But Obama will attempt to blame President Bush once more. This tune is already old.
No problem. Let the guys out. Let them live in the US. I am sure Mr Holder has a few spare rooms that he could house the guys until they get back on their feet. Just keep them away from Wright’s Kool Aid.
Maybe Obama could cut a deal with the Red Chinese. They will not hurt the Uigher terrorists, maybe only take one kidney, and Obama will stop trying to destroy the dollar and with it China’s five trillion dollar lien on US taxpayers. A win-win for all inolved…
The Hon. Jeff Sessions is a hero. I love him.
I hope the detainees are released where vivo and David S. live.
That is all.
Peace.
“They wouldn’t be safe if the went home?”
So what about my safety? I am not safe if they want them to be my neighbor. The best place they have ever lived is in jail. They have catering and room service.
I doubt they’d be safe here either
Specter is not a Republican. He is a RINO’s RINO whose career was built on poking Republicans in the eye.
Expecting Arlen to come clean on Holder is like asking William Jefferson Clinton to keep his hands to himself or Obama to stop playing the race card.
6. David S:
Your thoughts on this seem to assume a few things that are simply not true.
1) That U.S. constitutional protections apply to foreign combatants, whether or not they fight for a country.
2) That current legal rules of evidence apply to the battlefield. Just how are we going to scrupulously maintain “chain of evidence” in a firefight?
3)”Criminal charges” assumes the broke a law. Whose law? Ours? how can you enforce that in a foreign country? They merely shot at us, and we captured them instead of killing them.
4) Granting asylum? They weren’t escaping persecution when they left their countries, but only after becoming terrorists. They have no basis for asylum. Of course, we don’t want to send them to certain death, therefore we keep them in Gitmo.
5) The only sufficient evidence for the military to detain them is that they engaged in battle with us. Nothing more, nothing less.
6) That this is a law-enforcement problem. Posse Comitatus FORBIDS the military
I find it rather disturbing that many (you included) wish for us to bend over backwards in the treatment of our enemies, literally to the point we endanger ourselves unnecessarily. Your type wishes us to be perfect – and perfect is the enemy of good.
Now, I think that we could have possibly avoided these problems if we would have merely declared we would treat them IAW Geneva. In some ways we treat them better, in others we don’t follow. If we would have done so from the beginning, there would be nothing anyone could really say about how we treat them, as it was in accordance with international treaty.
Of course, THEY don’t care about Geneva – remember Jihadi BEHEADINGS of non-combatants such as Berg? Another assumption you make – that there is a moral equivalence between us and them.
If the administration wants to play catch and release with these guys, fine, but let’s have the same treatment of them as was proposed for AIG executives who earned bonuses:
publish their name, photo, and address.
Let’s have an ex-Gitmo suspected terrorist registry law, like they do for sex offenders, so the public is informed and can be on guard for their safety.
U. S. citizens could make it be known that any detainees released would be ‘dealt with’ summarily. While this may sound a bit over the top, this is exactly why Richard Speck was never released on parole: the Illinois parole board knew he wouldn’t last long if released.
Oh crimeny, serves me right for not fully checking my post before hitting “send”:
6) That this is a law-enforcement problem. Posse Comitatus FORBIDS the military from performing as police. If we extend our other laws, why not that one?
A few facts need to be kept in mind:
1. Many of the detainees were NOT “captured on a battlefield”; instead, many were picked up at their homes, and some were picked up in Pakistan and other countries, on rumor or tips given to us by rival warlords or questionable informants.
2. Of these, not one has been charged with anything; instead, the government has circulated rumor and unproven allegations as a way of making them seem dangerous. No one on this blog has seen any hard evidence of their danger, because the government has made it all top secret.
3. The law cited about being illegal to bring terrorists into the country is interesting; it is a fact that for years, the Bush Administration has protected and harbored Cuban terrorists, one of whom is accused of blowing up an airliner with civilians aboard. The Right may want to be extremely careful about pursuing this line of legal reasoning.
4. A few actually WERE captured in battle; based on the Geneva Conventions, they can be held without trial until hostilities end. Which brings up an interesting dilemma- most wars have a defined beginning, and end; the US government has refused to define when the “war on Terror’ will end; in theory, anyone picked up as a terrorist can be held for years, decades, maybe forever.
Oh, if this sounds good to you, keep in mind a few more facts; the current Administration considers right-wing militias to be domestic terrorists; and based on the legal reasoning of the Bush Administration, domestic terrorists can be captured and treated exactly as the Gitmo detainees, that is, held forever without trial or charges.
Does this still sound good to everyone here?
Soldiers in the field do not & cannot be expected to arrest or detain individuals based on typical criminal activities or actions. The rules of evidence in criminal proceedings would make prosecution of terrorists impossible. In war, and that is what we are in, criminal proceedings requirements become impossible to deal with. That is why Obama & company do not want enemy combatants. This way, they can claim we violated civil rights or profiled them, when in fact these people were participating in, plotting, or training to murder Americans & even fellow Muslims. Terrorism is a unique form of criminal activity that cannot be prosecuted in typical criminal courts & the rules of evidence would reveal our sources & make them vulnerable to attacks.
Conflating this to criminal courts, has only enabled our enemies who will use our own justice system to destroy us while they operate under no civil code or conduct.
Once an attack takes place by a former Gitmo detainee, Americans will realize we’ve been had by the radical left who only wants to try to create their vision of an utopian world, at our expense. Utopia is a dream. It cannot happen. But the left dreams on while ignoring reality. I say, let them be the first to die for their causes!
Rubin claims, with no support, that these 17 Uighurs “received military training in terrorist camps in Afghanistan,” thus suggesting that we are about to release dangerous terrorists onto our soil. But my understanding is that even the Bush administration long ago concluded that these were not terrorists and tried to get them released to other countries, unsuccessfully. But until that fundamental point is settled, most of the discussion above is moot. And Jennifer Rubin ought to know better.
However that falls out, some of these remarks, like Spanky’s racism, are just plain offensive or, like Sebastian Shaw’s panicked shriek that these people will simply be set free to commit acts of terrorism, just plain silly. Get a grip.
25. ChipD:
1) Who was “picked up at their homes”, or on “rumors”? Where is your basis for this “fact”?
2) Why does an “enemy combatant” have to be charged with a crime? Are they subject to U.S. law, no matter where they reside?
3) Please cite your reference. We don’t know what you are talking about. Saying “It is a fact” is not really, a fact. Post a reference. Because you believe it doesn’t make it true.
4) A FEW, please. You give them too much benefit of the doubt. You are right, we decide when the war on terror ends, and when they get to leave. Why is that a problem?
No, “domestic terrorists” are treated as per U.S. law – as is accorded U. S, citizens. Those at Gitmo are not U.S. citizens, they do not deserve protection under the law.
It’s very easy to figure out whether those poor innocent Uigurs are terrorists or not. If even the lilly-white liberals in Europe, who would fellatio every “freedom fighting” moslem terrorist, are afraid to take them – then surely those guys are dangerous. So lets send them to a diverse multi-cultural and religiously progressive country – Pakistan. After all, they went there voluntarily – and it’s not like Pakistan got any worse in the last few years.
Hyphenated is ready with the pitchforks and a breezy little system for determining guilt. I pray he never makes it onto a jury. Fortunately, he’d be too busy with the lynch mob to serve. He knows the guilty when reads about them. Don’t need no stinkin’ courts. Don’t need no stinkin’ investigation. Why, that entire paragraph on the internet tells him every he needs to know to condemn dozens to an oubliette.
@21. Jeff Weimer:
I think you overstate your case.
I spoke to the plight of detainees. I am not willing to assume that all detainees are “foreign combatants”. I understand that different standards may apply in different individual cases.
I spoke to the importance of a court of law. Military and civilian courts could both fulfill this function. However, you are assuming that all detainees were foreign combatants detained on the battlefield. What is the basis for your assumption?
The laws of war would be appropriate, if in fact the detainee was captured as part of a war. There are clear standards for determining who is a legal combatant and who is not under the Geneva conventions. You again assume that all detainees shot at us. That’s a big assumption.
If we label someone a terrorist, and can’t prove it, we bear responsibility for that prejudicial act. The basis for asylum is the potential for persecution – political asylum has a long tradition, and it doesn’t usually involve imprisoning applicants indefinitely.
Unless this evidence is brought before a proper tribunal, it is nothing more than the say-so of the military. You are assuming again, not I.
The formulation of my statement is to identify the law-enforcement problem within the larger military context.
We should follow the laws and treaties that we have assented to. This does not mean bending over backwards to be perfect – it means making a concerted effort to do the best that we can. We should not settle for “good enough” – because for someone who spends the rest of their life in secret detention without cause, it’s not.
You have assumed that all detainees are foreign combatants, detained on the battlefield for firing shots at US forces. You have assumed that none could possibly be eligible for asylum, and that there is sufficient evidence of their wrongdoing – despite no independent assessment being made of any such evidence. Furthermore, you assume that the entire process must be conducted outside of judicial oversight, despite the clear role of our courts in providing a check and balance against the executive branch. Yet you accuse me of making unsupported assumptions in support of my position that we should follow the law.
That was basically what I was arguing. Good to see that we agree on what should have been done in the first place. I’m simply advocating that we should also follow these conventions now.
Geneva is a standard that we agreed to on our own. You are correct that terrorist entities don’t adhere to these standards – but the nations of the world agree that Geneva is a binding agreement. We don’t gain license to violate our international obligations by simply going to war with a stateless entity. It’s not about moral equivalence – it’s about our honor. Do we honor our commitments or not?
Peace.
DS
How dow we know that some of these detainees weren’t simply at the wrong place at the wrong time? The answer is we won’t unless we play by the rules. It is harmful to our judicial system and our values to hold people indefinetely without due process.
If we captured them during a combat situation then the Geneva Conventions come into play. Sure the other side doesn’t play by those rules. But why if we don’t play fair and demonstrate to the world our high standing ideals we’re no better than the terrorists.
6. David S:
“Unfortunately some detainees can’t be deported to their home country because of the threat of persecution.”
I don’t think it’s our responsibility about what other government might do.
9. Jeff Weimer:
Thanks for your comments. What a mess!
11. MiamaMan:
““Why are people concerned about bringing prisoners from Gitmo to the US? They are going to be jailed and kept inside secured prisons.”
Where they will proselytize and infect the other inmates with the Jihad virus,”
That can happen, but they can still be deported.
17. Delia:
“I hope the detainees are released where vivo and David S. live.”
I don’t care. They are not going to blow up my little shack, they’ll go to Delia’s McMansion . . .
@33. vivo:
I’m afraid that’s a rather short-sighted position. It has always been our responsibility, and it always will be. Your opinion has little bearing on the issue.
Peace.
DS
#33 vivo – Um, gosh vivo, THAT was a boneheaded comment. Not our responsibility? We signed a treaty with most of the nations of the world regarding political asylum. We are treaty-bound to not return a person to his country when he faces immediate death there for political reasons. Try knowing the issue before you post, vivo, please. (Btw, how do you not know this?)
That’s why this GTMO thing is so hard. No one wants these guys. They’re the worst of the worst. Their own countries will kill them out of hand. A neutral nation which will take them will allow them to leave to return to the battlefield, as so many have already. Other nations don’t want these guys (which is a big damned clue for not allowing them here, either).
The answer is to shoot most of them as spies and saboteurs, as they were captured on the battledield sans any identifiers as combatants, per the Geneva Convention. If they were trained in terrorist camps, then they are terrorists. Shoot them, too. All others are case-by-case political asylum issues.