What to Do With the Uighurs?

What to Do With the Uighurs? By Matthew J. Franck
Bench Memos/NRO, Thursday, February 19, 2009

Back in October, Judge Ricardo Urbina of the federal district court in D.C. ruled, on a habeas petition, that 17 Uighurs (Muslims of Turkic ethnicity from western China) held at Guantanamo must be released into the United States. The government no longer considers the Uighurs to be enemy combatants—i.e. included among those against whom military force was authorized in 2001—but neither does it wish to see them come stateside, for very good reasons (like their membership in a group our State Department lists as a terrorist organization). And sending them back to China looks like a sentence to torture and death at the hands of the Chinese government.

So clearly the Bush administration—as now its successor the Obama administration—had a dilemma about the final disposition of the Uighurs. But it was judicial activism of the worst sort for a judge to order the release of these men into the U.S. Thus it was good news yesterday when a three-judge panel of the D.C. Circuit Court of Appeals unanimously overturned the district court ruling. One of the three appellate judges, though, Judith Rogers, concurred in the judgment on grounds that Judge Urbina had merely acted hastily; Judge Rogers would appear to be ready to release the Uighurs into the U.S. after a couple more questions are answered.

Thank goodness, then, for Judges Arthur Randolph and Karen Henderson, who held (in Randolph's opinion for the court) that there is no power presently in the hands of federal judges to admit aliens to the United States whom the political branches of government have not seen fit to admit under relevant immigration laws and procedures. The Uighurs, Randolph pointed out, haven't even applied for admission to the United States under any immigration rubric. And never in our history has a federal court fashioned an extra-statutory ground for ordering the entry into the U.S. of an alien kept out of the country by the government.

Judge Rogers argues that the majority vitiates the Supreme Court's Boumediene ruling granting the Guantanamo detainees the privilege of habeas petitions in federal courts. She might better take that complaint to Justice Anthony Kennedy and his colleagues in the Boumediene majority, who created this mess. As Judge Randolph notes, it is one thing to say that a habeas-wielding court can order someone's release from detention—as Boumediene seemed to say of Gitmo detainees. But it's another thing to say that a court using habeas powers can order someone's entry into the U.S. in defiance of our immigration laws and of the policymakers who implement them. Not for the first time, the D.C. Circuit finds itself dealing with a crapstorm originating above them in the Supreme Court.

Does this mean Boumediene is a dead letter? One can hope so, but I doubt it. It does mean that while this matter is left to courts, easy answers won't be forthcoming. And it means that President Obama—who can enjoy this moment as the named respondent in Kiyemba v. Obama—has the ball in his court now. Close Gitmo? Sure. Then what?

Maybe he can brainstorm up a solution with that other legal genius, Anthony Kennedy.