Wednesday, October 15, 2008

Fear Mongering: Are the Uighurs "a Threat to the Public at Large"?

Marty Lederman

The Department of Justice has filed, in the U.S. Court of Appeals for the D.C. Circuit, its Motion for Stay Pending Appeal and for Expedited Appeal in the case of the 17 Uighur detainees who Judge Urbina has ordered released. Lyle Denniston's title for his post describing the government's filing is (appropriately) to the point: "U.S. sees danger if detainees come."

That about sums it up: The government's strategy in its brief is to persuade the court of appeals that Judge Urbina's ordered release of the 17 Uighurs, into Uighur communities in the U.S., "would pose a serious security risk."

That sounds ominous -- and if it were true, it presumably would be a compelling reason to question the particular form of relief that Judge Urbina has ordered. But is it true?

I don't have any personal knowledge of the detainees or their history, and so I can't say for certain that the Uighurs would not present a threat to public safety. But the government hasn't cited any evidence that supports the prognostication of such a dire prospect.

Indeed, as the Uighurs point out in their reply brief, in the case of at least nine of the detainees, there is no evidence the government could possibly identify, because the government has failed to file a habeas return as to those detainees, and thus the record is barren.

The government's alarms are especially jarring because just last week, Judge Urbina offered the government an opportunity to make a factual proffer of "the security risk to the United States should these people be permitted to live here," and the government lawyer reported that he did not have "available to me today any particular, specific analysis as to what the threats from a particular individual might be if a particular individual were let loose on the street."

Moreover, the U.S. has been trying for several years to resettle these detainees among foreign civilian populations -- an effort that strongly belies the notion that they are especially dangerous.

Understandably, then, Judge Urbina found that the government "has presented no reliable evidence that Appellees would pose a threat to U.S. interests."

In the absence of any evidence of a threat, the government argues that "it is self-evident" that compliance with the district court's order "could pose a threat to the public at large."

But what, exactly, is it that makes it so "self-evident" that the Uighur detainees "could pose a threat to the public at large"? The government appears to rely upon four things:

1. First, the government states that the Uighurs (most of them, anyway) are "trained fighters," twelve of whom claim to have had weapons training at military camps in Afghanistan. (DOJ concedes that one of the detainees, Arkin Mahmud, was captured before he engaged in any such training. It does not explain in what way the other four detainees are "trained fighters.")

2. Some of the detainees have, as the DOJ puts it, stated that they sought the training "for the purpose of attacking China or Chinese interests."

3. "Congress has made a legislative judgment in the immigration laws that individuals who seek to commit terrorist acts against a sovereign government -- and who receive weapons training for the purpose of doing so -- are not safe to be admitted into the United States" (citing 8 U.S.C. 1182(a)(3)(B)).

4. The government asserts that Parhat and some unknown number of other Uighurs were "a part of or a supporter of" the East Turkistan Islamic Movement (ETIM), a group that the Secretary of State has designated a terrorist organization.

Let's take a look at these claims one by one.

First, the detainees are said to be "trained fighters," twelve of whom have admitted to having had weapons training at military camps in Afghanistan. Even if one credits evidence outside the habeas record, however, the most that this would show is that 12 of the 17 detainees had some training in the use of rifles, and in the case of five of those twelve detainees, the use of AK-47s. That training was, by all accounts, to assist them in fighting against the Chinese government. Being trained in the use of rifles -- for the express purpose of fighting a government halfway around the world -- surely is not sufficient to establish any threat to persons here in the U.S. Many people living in the United States are, of course, trained in the use of rifles.

Second, and to similar effect, DOJ tries to support its claim of dangerousness by explaining that the detainees sought the training "for the purpose of attacking China or Chinese interests." The quotations the government offers in support of this assertion, however, do not say anything about "attacking" China or its interests. Instead, they are all to the effect that (some of) the Uighurs sought firearms training in order to "fight against" or "fight back against" the Chinese government -- and in one case (Mahnut), in order to take "action against the Chinese military." That the Uighurs wanted to be prepared to fight the Chinese government is not a surprise, and hardly make them "attackers" of China, let alone terrorists. More to the point, however, these quotations provide no reason to think that these detainees pose any danger at all to the U.S. or its people in the event the Uighurs are released to live here temporarily under the conditions and supervision of the district court.

Third, the Department claims that Congress itself has made a "legislative judgment" that any individuals who seek to commit "terrorist acts" against any sovereign government -- and who receive weapons training for the purpose of doing so -- "are not safe to be admitted into the United States." The government cites 8 U.S.C. 1182(a)(3)(B) in support of this argument.

There are several problems with this argument:

For one thing, the government has cited no evidence that any of the detainees, let alone all 17 of them, "seek to commit terrorist acts" against anyone, let alone against a sovereign government. (The statute in question has several broad definitions of "terrorist activity." 8 U.S.C. 1182(a)(3)(B)(iii). As far as I know, the government has not cited any evidence that any of the Uighurs has any intent to engage in any such activities.)

Moreover, the statute does not provide that any person who "seeks" (i.e., hopes or intends) to commit any terrorist activity against another foreign government is "not safe" to be admitted into the U.S. What it says, instead, is that a person is inadmissible under the immigration laws if he has engaged in a terrorist activity; or is likely to engage in terrorist activities after admission; or has incited terrorist activity with an intention to cause death or serious bodily harm; or is a representative or knowing member of a designated foreign terrorist organization; or has used a position of prominence within a country to endorse or espouse terrorist activity in a way that the Secretary of State has determined undermines United States efforts to reduce or eliminate terrorist activities; or is a spouse of a person described in one of those categories. As far as I can tell the government has not pointed to any evidence that any of the 17 Uighurs falls within any of these statutory categories.

Finally, even assuming that each of these statutory categories were a proxy for dangerousness within the United States, and if there were evidence that the detainees fit within those categories (which there is not), that would only mean that they are inadmissible under the immigration laws, not that they can be detained indefinitely. Indeed, in two recent cases (Zadvydas v. Davis and Clark v. Martinez), the Supreme Court has held that inadmissible aliens must be released into the United States after six months of detention if there was nowhere else to send them -- even where they had been convicted of a crime.

Fourth, the government hints at one other basis for its claim that the Uighurs "would pose a serious security risk": It asserts that Parhat and some unknown number of other Uighurs were "a part of or a supporter of" the East Turkistan Islamic Movement (ETIM), a group that the Secretary of State has designated a terrorist organization.

Now, if some of the Uighurs were members of ETIM, and knew it was a terrorist organization, such knowing membership would make them ineligible for admissibility into the U.S. under the immigration laws. However, (i) inadmissibility under such laws does not necessarily preclude the remedy Judge Urbina ordered, and the Constitution might still require it (cf. Clark and Zadvydas); (ii) such membership certainly would not mean that the Uighurs pose a "serious security risk" within the United States (since the ETIM's only enemy is China); and, most importantly and most tellingly . . .

. . . (iii) DOJ does not provide any evidence that any (let alone all) of the Uighurs is "a part of or a supporter of" ETIM. The evidence DOJ cites are the statements of Parhat and other detainees, described at pages 17-18 of the D.C. Circuit's Parhat opinion. The only aspect of those statements of any relevance here is Parhat's apparent statement that one Hassan Maksum was "a leader" at the camp at which he trained. The government claims that Maksum is also a leader of ETIM. Even if this were supported by the record, it would hardly be evidence that Parhat, or any other detainee, is a part of ETIM -- let alone that all 17 Uighurs would pose a threat to the security of Americans.

* * * *

I should emphasize that I don't know for certain how this unique and unfortunate case should be resolved: Perhaps there is some evidence in a record somewhere, not cited by DOJ, that demonstrates that some of the Uighurs would pose a real danger to persons in the U.S. Perhaps releasing them within the United States would do incalculable damage to our foreign relations with China, and perhaps there is some (undisclosed) legal theory under which that damage to our Chinese relations alone is sufficient grounds for keeping these detainees indefinitely detained at GTMO (although I'm doubtful). Alternatively, perhaps the ideal thing for the courts to do here is to await the next Administration, which might be more successful than the Bush Administration at finding another country to which the Uighurs could be sent.

I don't know enough about the facts and the law to opine confidently on any of these questions.

But the Department of Justice has instead opted to rely primarily on the notion that Judge Urbina has ordered the release of "terrorists" into the United States -- that such a remedy for their unlawful detention of more than six years "would pose a serious security risk." And as to that contention, the government has failed to make its case.

I doubt the court of appeals will credit the government's unsupported allegations of dangerousness. But even if it does not, the government's latest filing will have had a deleterious effect on the case: As the New York Times now reports, the allegations in DOJ's brief have virtually precluded the possibility that the Uighurs can be sent to another nation, a solution that would resolve this case.

"The administration stepped up its search for a new home for the detainees," the Times reports, "after a federal judge ordered them to be released inside the United States a week ago." Yet now this "urgent effort by the Bush administration to find a country willing to accept [the] 17 detainees held at Guantánamo Bay, Cuba, has stalled because of a bitter dispute inside the government about whether the men are dangerous." The State Department is, quite understandably, furious:
People briefed on the issue said that the State Department, which is charged with trying to resettle Guantánamo detainees by coaxing other countries to accept them, argued that the Justice Department compromised diplomatic efforts with a court filing Friday that asserted that the Uighurs should not be released inside the United States. The filing described them as “a danger to the public” and as men who had been trained in insurrection. “Based on what they were saying in the brief, it made it impossible to conduct negotiations,” said an administration official who spoke on the condition of anonymity because he had not been authorized to discuss the dispute.
Imagine how those State Department negotiations must have gone: Our diplomats have been begging some other nation to accept the Uighurs, notwithstanding that the nation will incur the wrath of China. State gets close, but no luck. The court of appeals' order gives it a short reprieve, and it's working furiously to convince Nation X that it can safely accept the Uighurs. Then the United States's own Justice Department argues to the judiciary that releasing these detainees into a civilian population "would pose a serious security risk" and that it is "self-evident" they would pose a "threat to the public at large." At which point Nation X quite understandably tells the State Department to go take a hike. DOJ has thereby scuttled the last, best chance (within the Bush Administration, at least) to find a solution to the Uighur problem that is palatable to everyone (except perhaps China).

And for what?


Why doesn't the government just come out and say it. We illegally imprisoned and tortured these guys and we're afraid they might hold a grudge against us.

What about the government's main argument, which is the Mezei is controlling? As I read that case, the government can keep an alien out for any reason whatever and doesn't need to give a reason for doing it.

"That exclusion by the United States plus other nations' inhospitality results in present hardship cannot be ignored. But, the times being what they are, Congress may well have felt that other countries ought not shift the onus to us; that an alien in respondent's position is no more ours than theirs. Whatever our individual estimate of that policy and the fears on which it rests, respondent's right to enter the United States depends on the congressional will, and courts cannot substitute their judgment for the legislative mandate."

Mezei if anything had much greater claim to reentry to the US having lived here for some 20 years and was detained at Ellis Island, not Guantanamo. No reason was given for his exclusion other than "national security" and no other country would take him.

As far as I know, Mezei is good law, so how can a District Court basically overturn USSC precedent? I'm not making this as an arguing point, I am generally curious as to why all the four points Lederman makes have any bearing if Mezei is good law (and if it isn't good law, the USSC needs to say so, not a District Court).

1) The Chinese claim the EITM are responsible for bombings in their country. That makes them terrorists. While I do not place much stock in the veracity of the Chinese dictatorship, the allegation is there.

2) When you live with and train with the EITM, you are EITM, not tourists. The petitioners have never offered a reasonable innocent alternative explanation.

3) The fact that the military has sought to remove these former POWs to another country and none are willing to accept them (including all of the critics of Gitmo) speaks volumes.

4) Importing terrorists not only presents a direct danger to the citizenry, but also an indirect danger that they will import their war into the United States. If we shelter these terrorists, China has every right to come into out country and take them down as we did in Afghanistan when the Taliban sheltered al Qaeda.

5) Article III does not provide the judiciary any power to ignore the immigration laws and order the importation of foreign terrorists through a habeas corpus proceeding.


That's one of the more dishonest aspects of the government's argument.

Mezei tried to enter the US of his own free will -- these guys were kidnapped, tortured, and unlawfully detained by the US government.

Guantanamo Bay is US territory for all practical and legal purposes. These folks are under US jurisdiction, period, and not by any choice or act of theirs, nor by an accident like a shipwreck. The only reason they are situated where they are is because the US government deliberately brought them to Guantanamo Bay in order to commit crimes against them.

And even as I typed that, Bart was fabricating more of his endless lies...

1) These detainees are not POWs, and the US government has explicitly denied that they are POWs.

2) If any of these detainees is guilty of some crime under the laws of the United States, the government has had more than six years to seek an indictment and bring them to trial. They haven't even tried, for the simple reason that there isn't any evidence of wrong-doing.

3) Meanwhile, the US government's own actions against these detainees were in violation of various US criminal statutes from the start. The only REAL threats to our national security here are the crimes being committed by our own government against our own laws.

Marty, c'mon, these are icky yellow-brown ethnic people. Of course they're terrorists.


What about the government's main argument, which is the Mezei is controlling? As I read that case, the government can keep an alien out for any reason whatever and doesn't need to give a reason for doing it.

It would be simpler if they were already "out". They're not. They're "in". The U.S. brought them to U.S. territory.


"Bart" DeClueless:

3) The fact that the military has sought to remove these former POWs to another country and none are willing to accept them (including all of the critics of Gitmo) speaks volumes.

"'Tis nae me problem, Jimmie."

Other countries are under no obligation to haul the U.S.'s a$$ out of a sling. Being opposed to Guantánamo to begin with, they may even feel that refusing to let the U.S. off the hook may further the interests of forcing a shutdown of Guantánamo....


What remains to be seen is whether the government's appeal will be assigned to the same panel that decided Parhat, per the Uighirs' motion. That panel has already seen all the classified material from the CSRT and is in the best position to judge the invalidity of the government's claims. But with the DC Circuit so split ideologically, it is possible that the operating procedures will be bent.

Incidentally, the weapons on which they supposedly trained are just those the possession of which was determined to be a right in Heller.

There's also an element of Munaf in the case. It seems the government is saying that Uighurs are no longer "in custody", they are at liberty to go wherever they are allowed per the regulations of Guantanamo, a military base not open to the public. But the immigration cases make it clear that there are time limits on non-custody custody, and it's certainly clear that the habeas court can have their bodies brought into that court. Of course, the government says that it will immediately take them into immigration custody as non-admissible alien terrorists.

As for Mezei, its historical roots in McCarthyism cut against it, these days courts are rarely willing to accept the unsupported assertions of the government, and even non-citizens awaiting deportation cannot be held indefinitely until a country willing to accept them has been found. But what exactly is the immigration status of the Uighurs? They were brought to Guantanamo at the behest of the government, on the government's mistaken belief that it is not subject to US law. They seem to be non-admitted aliens paroled into the US with the permission of the Attorney General, similar to witnesses in alien smuggling cases.

Let's cut a litle slack for little Lisa's bro, who during the day, with his backpack of lies, while BUI (Blogging Under the Influence), warns us that the sky is falling and all night long has to check under his bed for terrorists, including potentially Uighurs if Marty has his way.

The detainees filed a motion for the appeal be assigned to the Parhat panel but it was denied. Now they are briefing the government's motion for a stay pending appeal before a new panel.

Good post Marty except for speculating about the work of the state department in trying to settle these or any of the remaining prisoners. The State department has sat on its hands and has done nothing to help the Uighers or other prisoners find homes outside the US. I found a european country that was willing to take my client, who like the Uighers was found not to be an enemy,that particular country only asked one thing of the state department and that that the US ask them to take my client. The state department refused and said it would be willing to send my client to that country if "they asked."
Shit, why would this country that was willing to do a favor ask the state department for permission to take this guy?
But that is our arrogant government... they take innocent people, hold them without charge for years and if another country wants to step in and help they have to ask "please."

I bet I walk past people every day who have more real and demonstrated risk to me than any of the 17 prisoners in question.

I think I have a pretty good bet. The administration has had seven years to collect evidence and prepare a case -- and this is it? This is all you've got?

I could make a few good guesses on people I walk past every day, and give me seven years and the resources of a major world government, I could get evidence of risk that would show up this nonsense as the stale, weak beer it is.


1. I'll leave it to others to give the US position, but if you look at Judge Urbina's ruling, he referred to three cases - all decided by the US Supreme Court and decided to prefer the later rulings to the earlier one. I know that since the unilateral declaration of independence, the USA has developed some pretty strange jurisprudence on many matters, but that approach to precedent seems reasonably conventional to this foreign lawyer.

2. Your assertion that "other countries" are trying to shift the onus onto the USA does not survive even the most cursory examination: which "other country" do you suggest went around offering bounties to impoverished people for turning over captives to US forces, which "other country" do you suggest detained these people in conditions which bring shame upon their captors, transported them to the western hemisphere and unlawfully detained them for years on end - and continues to detain them?

3. Courts are not merely courts of law, they are above all courts of justice. Could you honestly put your hand on the testament of your choice and say that if what happened to these detainees had happened to a member of your close family in some other part of the world, you would not be up in arms screaming for redress of a great wrong ?

4. Go over to Scotusblog and read the motion on behalf of the United States and the reply of the Applicants: you will get a very strong smell of "let's kick this one into touch until after inaugration day".

5. Once upon a time government lawyers would have resigned rather than put their names to such papers. O tempora! O mores!! What has happened to the concept of honour ?

Do not fall into the way of thinking of our resident loathsome spotted reptile, please !


As to your first point, I believe what Judge Urbina tried to do is say that if Meizi were decided today, it would be decided differently. I believe that is not the proper role of a District Court and more importantly, the USSC has said it is not the proper role. The USSC had an opportunity to overturn Meizi in Zavydas, but declined, therefore it is still good law even if we don't like the results. For what it's worth, I also think Zavydas would have been decided differently had it been decided in June of 2002 instead of June 2001, but that's speculation.

As to your second point, that's not my quote that is from the USSC's majority opinion in Meizi. Again, you can disagree with it, but until the court overrules it, it is the law of the land.

As to your third point, if my relatives had gone to another country to take up arms against my country and then been caught, well, I'd feel sad and all but would also think they kind of had it coming, sort of like if they were smuggling large amounts of drugs into another country and got caught.

As to your fourth point, I think it is an excellent idea to put this to after the election since I think it is inherently Congress' and the President's responsibility to decide what to do in this case. In fact, I wish they would have mentioned it in the debate. I think the American people would like to know what the next president intends to do in these situations. I think this case is a tough nut to crack, but I also think the Judge overstepped his authority by ordering them released into the US.


You'd like to know what they'd do in what situation exactly?

There are six billion people on the planet and every single one of them that has approximately adult faculties is capable of being the next Timothy McVeigh, Osama Bin Ladin, Charles Manson, or Dick Cheney.

Would you feel safer is we simply exterminated all of them as a precautionary measure?

You're stuck a false dilemma that completely ignores the facts:


The only thing you for sure is that the administration has been lying about them from day one. This is why we have laws, rights, and due process.

Scott: I'm not sure that your interpretation is correct. Meizi was decided much earlier than the two later cases and at a time when the legislation and treaty obligations of the USA were rather different. Precedent is only binding where neither law nor fact can be distinguished. Urbina distinguishes both.

You write:-

"As to your third point, if my relatives had gone to another country to take up arms against my country and then been caught, well, I'd feel sad and all but would also think they kind of had it coming, sort of like if they were smuggling large amounts of drugs into another country and got caught.""

You have changed the scenario: you and your relatives are both from a territory under the heel of a colonial oppressor, you are outside the territory and so are your relatives and you are both working to overthrow the oppressors of your country. Your relatives have been captured by brigands and sold to a third country which by rights ought to be supporting them in their struggle against oppression but has detained them unlawfully for 7 years in atrocious conditions.

Do you still feel "they had it coming" for being patriots? Do I hear your Founding Fathers, recently the victims of colonial oppression, spinning in their graves like jet engines preparing for take-off ?

I think Judge Urbina was faced with a situation more closely analogous with the case of James Somerset, the slave Mr Stewart of Virginia sought to have returned to his custody. You may recollect the decision of Lord Mansfield on 22nd June 1772 also in the exercise of the habeas corpus jurisdiction:

On the part of Somerset, the case which we gave notice should be decided, this day, the Court now proceeds to give its opinion. The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, which preserves its force long after the reasons, occasion, and time itself from whence it was created, is erased from memory: it's so odious, that nothing can be suffered to support it but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged."

The US Supreme Court, of course, did not exactly cover itself in glory on the slavery issue, did it? - see Prigg v. Pennsylvania, 41 U.S. 539 (1842) where Somerset's Case is cited.

And no, I do not think it was a good idea for government lawyers to seek to "kick the case into touch" for the next administration to decide - especially in this case - when the government its caught with its pants down having grossly violated the civil rights of the unlawfully detained persons, it would have been more graceful to say (without conceding the "Meizi" point) than in the circumstances there would be no objection to "the inconvenience" of release on bond while a resolution of their immigration status was sought in appropriate proceedings.

But then, regard for human rights and civilised behaviour has not exactly been a controlling feature of Guantanamo Bay - as I suspect you well know.

Meanwhile, back at the D.C. Circuit, the government filed a reply to the detainees opposition to their motion for a stay. See SCOTUSblog.

just a word in passing ..

my commendations to you m. mourad .. i continue to learn much from your contributions to this blog ..

Jkat - thank you for your kind words.

Meanwhile at the US Court of Appeals for the DC Circuit, the case has indeed been kicked into touch until after the election. Scotusblog has the order here

The dissent of Rogers CJ is appended to the Order. I do not know how common it is for a US Judge to write a dissent to an interlocutory order such as this, but it is in what seem to me to be strong terms.

Oral argument is scheduled for 24th November - i.e after the election but before the transfer of power to the next administration.

Judge Henderson is, of course, the author of the primary opinion in the regrettable decision in Rasul -v- Myers
which could be described as the Administration's "get out of jail free card" for the ill-treatment of detainees.

In her opinion Judge Henderson ruled against the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” Finally, the Court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantánamo had any constitutional rights.

Whether Rasul was rightly decided will be for another day because it has been appealed, but Judge Henderson's opinion in that case certainly makes one wonder whether the real issue in this kind of case is (i) whether US human rights law is defective or (ii) whether some US Judges are unfitted to protect such rights.

My best friend is the one who brings out the best in me.
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