(Compiler's note: It is a long, but must read article. So click on the title above and read the original article. We are going to hear more of this.)
By Andrew C. McCarthyCourts 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. .....
.... Justice does not make a single reference to
Section 1182(a)(3). That’s the provision in which Congress bars from admission any alien who has been affiliated with a terrorist organization or has had terrorist paramilitary training. In this litigation, that would be checkmate, so why not invoke it? Very simply: Because
while Section 1182(f) is a limitation on the power of the court, Section 1182(a)(3) is a limitation on the power of Obama. The administration does not want to acknowledge any such limitations — doubtless because, as the brief asserts, “the Executive” is still “encouraging other countries to participate in resettlement efforts.”
Neither the Supreme Court nor Congress is going to like this game. The administration is telling the justices that Congress has rendered them powerless to order the Uighurs’ release in the United States, yet DOJ refuses to acknowledge that Congress has also rendered the president powerless to release them here. Obviously, the administration is engaging in this sleight of hand because President Obama still intends to resettle at least some of these trained terrorists in the United States. Inspiring other countries to be reciprocally suicidal is Obama’s only real chance to honor his reckless commitment to close Gitmo by January.
Somebody on Capitol Hill should ask Attorney General Holder why his department held back from making its best argument to the Supreme Court.
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