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Scrutinizing Holder’s Actions on Guantanamo — And Beyond

Releasing terror trainees into the U.S. is not just politically problematic — it may be illegal, points out a letter PJM has obtained.

by
Jennifer Rubin

Bio

April 5, 2009 - 1:03 am

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.

Jennifer Rubin blogs at the Washington Post.
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