Almost immediately after taking office, the Obama administration set an arbitrary deadline for closing the secure terrorist detention facility at Guantánamo Bay, Cuba. That was the easy part. The hard part is deciding what to do with the hundreds of foreign terrorists detained at Guantánamo who, thus far, have been kept safely away from American communities.
For a substantial number of these detainees — maybe as many as half — the administration aspires to transfer them to the United States and has announced a bias for using civilian courts to try to bring them to justice. The administration and its defenders say that, because we have tried terrorists in civilian court before, we should do so again. And they say there is no problem with our doing so this time because, whatever happens in court, the administration would not release detainees into the United States. Both assertions miss the mark.
KEEP TRIALS OUT OF U.S.First, whether we can try terrorists here is not the issue; the issue is whether we should try terrorists here. Before he became attorney general, Michael Mukasey was a noted federal trial judge who presided over civilian trials of terrorists, like the trial of the so-called "Blind Sheik," Omar Abdel Rahman, for the 1993 World Trade Center bombing. He has noted that there are very good reasons why we shouldn't try terrorists in civilian court, including the risk of compromising sensitive information, the logistical and security nightmares for American cities and the additional legal rights terrorists will receive if they are brought here.
Second, as a case the U.S. Supreme Court on Oct. 20 agreed to hear makes clear, what the administration and its defenders really mean to say is that, whatever happens after detainees are brought here, the administration does not intend to release them into the United States. The case, Kiyemba v. Obama, involves a group of ethnic Uighers from China who are detained at Guantánamo. The Uighers won their habeas corpus petition to be released from custody. Many of them, however, had received military-style training in the Tora Bora Mountains of Afghanistan — including weapons training on AK-47 assault rifles — at a camp run by the head of a group that our State Department has designated a terrorist organization and that the United Nations has listed as a group associated with "Usama bin Laden, al Qaeda, or the Taliban."
Not surprisingly, given their association with a terrorist group and China's opposition to their resettlement in a third country, it has not been easy to find countries eager to accept the Uighers into their civilian population. So they sued to be released into the United States. A federal judge granted their request and ordered them released here. It did not matter to the judge that the Uighers did not have an immigration status, or that they had received military-style weapons training, or that they had associated with a terrorist group. He was persuaded by their argument that justice somehow required that they be released into this country.
Fortunately, the U.S. Court of Appeals for the D.C. Circuit reversed this decision, ruling that, even if the government had to release the Uighers, it did not have to release them into the United States. The D.C. Circuit's ruling is important to our ability to detain foreign nationals safely outside our borders during wartime and to the ongoing debate over where we should detain and try foreign terrorists.
Specifically, the D.C. Circuit noted that the Supreme Court has held that foreign nationals who are not present in the United States have fewer legal rights than those who are. It also noted that the Supreme Court has repeatedly ruled that the sovereign has a right to control its borders, which means it has a right to bar from being released into its territory foreign nationals whom it has not admitted onto its soil. In this case, because these detainees remain at Guantánamo, outside our borders, they have fewer legal rights than they would have if they were brought within our borders, including any right to be released into our civilian population.
We don't know how the D.C. Circuit would have ruled if the Uighers had been present on U.S. soil. But we do know a couple of things. First, the essence of the D.C. Circuit's decision not to release them into the United States was based on the fact that they had not been brought into the United States.
Second, other foreign nationals who have committed murder and other serious crimes and were in the United States have been released here when our government could not transfer them to another country.
RISKING JUDICIAL RELEASESo despite its aspirations, once the administration brings detainees into the United States, it is no longer simply about what the administration will or will not do with them. It's also about what a federal judge will or will not do. As we saw with the Uighers' case, a judge may very well agree with the legal arguments of Guantánamo detainees and order them released into the United States. That risk does not exist if the Obama administration does not bring detainees into the United States and instead tries them at the modern, multimillion-dollar courtroom at Guantánamo Bay, under the very military commission rules it has now rewritten to its liking.
If the Supreme Court affirms the D.C. Circuit's decision, it will allow the political branches to continue to maintain control over our borders, and it will bring clarity to an important issue in the debate over whether detainees at Guantánamo Bay ought to be transferred here. And that clarity is this: If you want certitude that foreign terrorists detained at Guantánamo will not be released into the United States, then don't bring them here in the first place.
U.S. Senator Mitch McConnell (R-Ky.) is the Republican leader of the Senate.
