June 15, 2011 | National Review Online

Welcome to Boumediene World

Here we go.

The Los Angeles Times and Voice of America report that a federal appeals court in Washington has presumed to invalidate the commander-in-chief’s determination that a wartime detainee held by the military at the Guantanamo Bay naval base is an alien enemy combatant.

The detainee, Huzaifa Parhat, is a Chinese Muslim, one of nearly two dozen Uighurs captured in Afghanistan by American and allied forces after the September 11 attacks.  Seventeen Uighurs are still being detained.  The appeals court (which announced its ruling but has not yet released the formal decision because it contains classified information), ordered that Parhat must be released, transferred, or granted a new combatant-status hearing.

And so the Boumediene fallout begins.

Against the backdrop of the Supreme Court’s startling June 12 decision to grant the aliens held at Gitmo a constitutional right to challenge their detention in federal court, Parhat is living proof of the old saw that bad facts make bad law.

The Uighurs are technically classified as “enemy combatants.” Still, they have long been cleared for release because our military does not deem them a threat to the United States.  That doesn’t mean they are not a threat, mind you. They are — it’s just that their beef is with China.

Thus we cannot return them to China because they’d be persecuted by its Communist regime. American treaty obligations forbid transferring a person to a country where he’d likely face persecution. Though Albania accepted five of the Uighurs, other countries are unwilling to divvy up the rest because they don’t want the headache of angry Chicoms, who want their rebellious nationals back. As usual, our fabulous allies in the war on terror would rather hammer Cowboy Bush over the existence of Gitmo than help us clear people out of there.

So now the alternative is . . . what? To release the Uighurs into the United States? These guys weren’t out of China on Hajj. They were getting combat training from Islamic militants in Afghanistan. Moreover, many — though apparently not Parhat — have been involved in serious incidents at Gitmo, including numerous assaults on U.S. military personnel and participation in riots incited by jihadists.

Their status presents difficult military, diplomatic, and foreign policy issues. You can argue that it hasn’t been handled well, that we should never have detained the Uighurs in the first place. But all war is fraught with error, and the cold detachment of hindsight is always 20-20. Perhaps in their wisdom the judges will enlighten our highly professional military and the rest of us dolts about how, in the heat of battle, they would have divined the difference between Muslim militants who mean harm to the United States and Muslim militants who mean harm to China. I have my doubts.

And that’s the point. Delicate military, diplomatic and foreign policy matters are not what we have courts for. Judges are not institutionally competent to decide those issues.  Until recently, the Supreme Court routinely acknowledged that.

The question of who is an “enemy combatant” is not a legal issue. It is, in the first instance, a battlefield determination to be made by our armed forces, and thereafter a political issue to be decided by the officials our system makes responsible for the authorization of military force and the conduct of war.

Federal judges tend to be very good lawyers. But there is nothing in the training of a lawyer that equips a judge with special expertise to decide who is an enemy combatant. More importantly, judges don’t answer to the American people, who have chosen democratically to wage a defensive war against Islamic radicals and have elected a commander-in-chief, checked by other elected representatives in Congress, to make such wartime calculations as who the enemy combatants are.

But here in Boumediene world, we are now evidently going to pretend that these are simple legal questions.

Forget about the national security implications. Forget about any diplomatic complexities. Forget about the perils of signaling to our troops in the field that their commanders’ decisions are no longer final, binding orders. No, an injustice has been done to a Uighur detainee, so the judges will rectify it. For those strictly in the business of vindicating rights and insulated from the consequences of their decisions, the rest is just details.

In the style of a bull in a china shop (pardon the pun), the court stamps its feet and says:  Release him. How is that in the interests of the American people? You can see why it’s in the interests of the Uighurs, but with due respect to them, their interests don’t get priority in this equation. With no responsibility for national security and no political accountability to the Americans who might soon find themselves living next door to a pack of Muslim paramilitary trainees, how do the judges suppose this is a call they should be making?

And in the greater scheme of things, how much injustice has there really been?

Our political representatives, and the diplomats, military experts and intelligence professionals who advise them, have worked very hard for six years to balance the national security threat posed by Islamic militants against (a) the need to accommodate nations whose cooperation we require and who object to the detention of their nationals; (b) the commonsense desire not to endure the resource-drain and political criticism that result from holding people who may not pose a significant threat; and (c) the imperative not to extradite detainees to places where they’d be abused.

They’ve made some mistakes. For example, the withering critique of Gitmo, which grants no credit for the life-saving intelligence the facility has generated, has induced the release of many jihadists who’ve promptly returned to the business of killing.

But look at the trend.  At one time, there were over 800 detainees at Gitmo. There are now 270. Working carefully, despite the fact that the nation is still at war and nearly 200,000 American men and women are still in harm’s way, the detainee population has been reduced by two-thirds. And it would already have been reduced by another several percentage points if some Muslim country had stepped up to the plate and agreed to take the Uighurs we’ve been working feverishly to unload.

Not good enough. After all, these aliens have not only combat skills acquired in jihadist training camps but constitutional rights acquired in Washington courtrooms. So they’ll be ordered released . . . the rest of us can worry about to where.

Welcome to Boumediene world, where the judges run the war.

– Andrew C. McCarthy is author of Willful Blindness: Memoir of the Jihad and director of the Center for Law and Counterterrorism at the Foundation for the Defense of Democracies.

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