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Sat., Oct. 18, 2008, midnight

Courts rush in where Congress fears to go

Importing terrorists hardly seems like a winning strategy to protect the nation’s security. But that’s what one federal judge says we have to do.

On Oct. 7, D.C. District Court Judge Ricardo Urbina ruled that 17 Chinese Muslims captured fleeing terrorist training grounds in Afghanistan in late 2001 must be set free in the United States.

His rationale: The detainees “were not waging war on the United States, have never waged war on the United States, (and) were not training to wage war on the United States.”

That’s probably true. The detainees, ethnic Uighurs, were training to wage terrorist war on China. To that end, they studied weapons and paramilitary techniques alongside al-Qaida and other jihadi allies. So while they might not want to attack America, who’s to say they wouldn’t take a shot at China’s embassy or its diplomats?

But if Judge Urbina had had his way, they’d be loose in the Washington area by now. Fortunately, the D.C. Circuit put a stay on his order so the government can make its case.

A couple points:

First, this is judicial activism, plain and simple. The political branches are responsible for overseeing entry into the United States. It’s unprecedented for a judge to order the government to bring a foreigner on foreign soil into the United States and set him free, without respect to immigration law or anything else. The judge’s command was downright imperious:

“I do not expect that these Uighurs will be molested or bothered by any member of the United States government. I’m a federal judge, I’ve issued an order, and what it says it says and what it implies, it implies, and that’s comity among the branches. Nothing will happen to these people until Thursday when this hearing convenes.”

So interbranch comity, rules Judge Urbina, means doing what the judiciary says to do, law be damned.

Second, the case illustrates the need for a comprehensive detention policy to prevent terrorist activity. We don’t have one now. Guantanamo is a stop-gap solution at best, and the Supreme Court has thrown its continued viability into question. What do we do with those who would wage war on the U.S. and our allies, but haven’t done so yet? Congress has been unwilling to even ask the question so far.

And that leads to a third point: We have to make tough choices in detainee affairs, as the Uighurs’ case illustrates so well. The U.S. wants to release them, but no country wants them – other than China, which has some unfriendly ideas about what it might do with them.

Releasing trained terrorists allied with America’s enemies into the United States isn’t such a great idea, either. There are no easy answers about what to do with enemy combatants, nonenemy combatants, and other miscellaneous rogues who’ve taken up arms as part of nonstate entities like al-Qaida. If Congress doesn’t answer these questions (and maybe even if it does), the courts will, even though they’re poorly equipped to make these kinds of decisions.

And that is the fourth and final point: The courts, by and large, really don’t seem to understand any of this. The Supreme Court has taken the lead in tying the executive branch’s hands in dealing with detainees, an easy course of action because it doesn’t have to articulate a positive strategy for what to do with them. This hasn’t been helpful, it hasn’t made America safer, and it hasn’t done anything to improve America’s respect for rights or standing in the world.

If the courts had to grapple with the consequences of their decisions, rather than just basking in praise from cosmopolitan elites over sticking it to the Bush administration once again, one suspects that their approach to these cases would be quite different.

In fact, a smart congressman named Rep. Louie Gohmert of Texas reached that same conclusion and proposed legislation to make the courts understand the consequences of their decisions. His “Giving Inmate Terrorists More Opportunities (GITMO) Act of 2008” would “provide for the transport of the enemy combatants detained in Guantanamo Bay, Cuba to Washington, where the United States Supreme Court will be able to more effectively micromanage the detainees by holding them on the Supreme Court grounds.”

That modest proposal appears saner than Judge Urbina’s order to let the Uighur detainees loose in Washington. It’s a black mark against Congress and the courts that we’ve reached this point.

Andrew M. Grossman is senior legal policy analyst in the Center for Legal and Judicial Studies at the Heritage Foundation (

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