Georgetown Security Law Commentary

Merging the NSC and the HSC: A Legal Footnote

By: Justin Rubin, Senior Counsel, Legal Affairs Department of the Project on National Security Reform

Last Tuesday, the President announced the merger of the staffs of the National Security Council (NSC) and Homeland Security Council (HSC) within one National Security Staff.  The President, however, did not merge the Councils themselves, instead maintaining them as two separate entities.  The public discussion, and comments from White House aides, indicate that the President took this step because he could not legally merge the two Councils without a new Congressional enactment.  A close legal analysis, however, makes clear that the President has ample authority to merge the two entities without Congressional approval.  

The President’s decision comes after a 60-day review of the current structures of the HSC and NSC and whether the integration of those bodies would enhance our nation’s security.  Though the President concluded after the review that merging the HSC and NSC staffs would more effectively integrate the instruments of national power, in contrast to many people’s expectations, he decided not to abolish the HSC.  In fact, the White House pledged to maintain the HSC "as the principle venue for interagency deliberations on issues that affect the security of the homeland."  Though the President’s decision to merge the two staffs is a much-needed and welcome change, maintaining two separate Councils reflects a specific choice to preserve a distinct body for advising the President on threats to the homeland such as terrorism, natural disasters, health-related crises and weapons of mass destruction.

The confusion over the merger’s legality was highlighted by Spencer Hsu’s article in last Wednesday’s Washington Post, attributing to unnamed White House aides two reasons for maintaining the HSC:  "Doing so will improve state and local officials' access to the White House and does not require an act of Congress." While the first may be true – it is essential that state and local officials have sufficient access to the White House homeland security coordination body – the second, which implies that the further integration of the Councils requires statutory authorization, is not.  The President does have the authority to merge the Councils and his decision not to merge them should be viewed in that light.

The National Security Council and Homeland Security Council were created by the National Security Act of 1947 and the Homeland Security Act of 2002, respectively.  The acts establish the Councils, set their membership, make them responsible for advising the President on interagency coordination, and create two separate staffs reporting to two separate Executive Secretaries. Merging the two Councils, as the President’s actions demonstrate, requires two unique legal decisions: whether to merge the two Councils’ staff and whether to merge the two Councils, which both currently exist in statute. Contrary to the view expressed in Spencer Hsu’s article and elsewhere, the President has the legal authority to do both.

First, the President has clear legal authority to merge the Council staffs.  While the statutes create separate NSC and HSC staffs reporting to statutorily created NSC and HSC Executive Secretaries, the laws do not require that the staffs, or the Executive Secretaries, be different. The President, therefore, can merge the Councils’ staffs into one staff by dual-hatting one individual as both the NSC and HSC Executive Secretary and require that the staff serve as a single unit reporting to that one individual.  This requires no legal change.

Second, despite claims that merging the HSC and NSC would require an act of Congress, the President has multiple means to effect a de facto merger of the two Councils without a statutory change.  Firstly, the Homeland Security Act gives the President the authority to "convene joint meetings of the Homeland Security Council and the National Security Council with participation by members of either Council or as the President may otherwise direct." 6 U.S.C. 496. This statute gives the President both the authority to call joint meetings and to choose who shall participate in such meetings – a power the President traditionally exercises, but does not statutorily have.  As a result, using this authority, the President could merge the two Councils by designating all future NSC and HSC meetings as joint meetings.

A second option for merging the Councils would be to call meetings of only one of them.  While the Councils are tasked with advising the President, neither the National Security Act nor the Homeland Security Act requires the President to call meetings of either. This reflects the limits of congressional authority: Congress has no Constitutional authority to require the President to listen to specific individuals’ or Councils’ advice.  In fact, even President Truman, who signed the NSC into existence, questioned the constitutionality of the NSC on such grounds.  See Cody M. Brown, The National Security Council: A Legal History of the President’s Most Powerful Advisors, Project on National Security Reform 10 (2008). As a result, had President Obama so desired, he could have merged the Councils by placing traditional homeland security issues within the jurisdiction of the NSC and inviting department heads, such as the Secretaries of Homeland Security and Transportation, to relevant meetings of the NSC as he is empowered to do by the National Security Act of 1947.  This approach would merely require not calling meetings of the HSC, clearly within the President’s constitutional and statutory authority, and would, in effect, merge the Councils.

It is curious that White House aides would cite the need for Congressional action as a reason for the President’s decision to merge the Council staffs, but not the Councils themselves.  The President has ample authority, given to him by the Constitution and the Congress to merge the NSC and HSC.  Though we do not know, beyond the statements attributed to White House aides, whether this was a real concern, it should not have been.  While many policy and political arguments exist for keeping separate Councils – including enabling state and local officials’ to access the White House, maintaining a forum focused purely on homeland security issues, allowing the President and future presidents greater flexibility in deciding how to use the NSC and the HSC, and, potentially, avoiding a political fight with those in Congress who oppose merger – the need for an act of Congress is not one of them. 

Rubin’s views are not necessarily representative of PNSR’s.

Scholarship: Recent articles on torture

"Torture, Truth Serum, and Ticking Bombs: Toward a Pragmatic Perspective on Coercive Interrogation" (Loyola University Chicago Law Journal, 2008) Kenneth Lasson (University of Baltimore School of Law) The 'War on Terror' has prompted a great deal of discussion about the use of torture as a means of extracting information from those suspected of having perpetrated past acts of violence or planning future ones. It seems increasingly difficult to adhere to international norms governing a nation's moral and legal obligations to protect its citizens from grave danger while continuing to support individual freedoms. Among the more difficult questions to emerge from those that were far-fetched (if not unthinkable) just a few decades ago is how to handle the so-called ticking-bomb scenario. As terror organizations grow in size and complexity, uncovering terrorist plans by interrogating a group member has become critical, and the need to gather intelligence in order to save lives increasingly urgent.

"Do Norms Reduce Torture?" (Journal of Legal Studies, Vol. 38) by Michael J. Gilligan (New York University, Department of Politics) and Nathaniel H. Nesbitt. This article tests the proposition that norms alter state behavior with respect to the expanding international norm against torture from 1985 through 2003. It finds no evidence that the spreading of the international norm against torture, measured by the percentage of countries in the world that have acceded to the UN Convention Against Torture, has lead to any reduction in torture according to a variety of measures. HT to National Security Advisors.

"The Jaundiced Eye of the Beholder: The Case for an Objective Definition of Torture" (Journal of Transnational Law and Contemporary Problems, Forthcoming) by Michael W. Lewis (Ohio Northern University - Pettit College of Law). After discussing current misconceptions about intelligence gathering and coercion that are common to all sides of the torture debate, this article describes the reality of intelligence collection. It then reviews the wide range of competing definitions of torture; those provided by international courts, those proposed by commentators and those implemented by governments around the world. Some proposed definitions are so broad that practically any form of interrogation would be illegal, others so narrow as to allow for a wide variety of shockingly brutal techniques.  People or governments under pressure from terrorist attacks view the definition of "severe pain and suffering" differently from those outside such a cauldron. The excesses that follow terrorism have generally later been regretted, but such regrets do little to comfort the victims of these excesses. This article proposes a solution. To prevent the definition of "severe pain and suffering" from changing between September 10 and September 12, it recommends tying the definition to pre-existing standards that are difficult to manipulate and internally self-policing.  HT to National Security Advisors.

Scholarship: "Combatants and the Combat Zone", “The Detention of Civilians in Armed Conflict”

"Combatants and the Combat Zone"  (University of Richmond Law Review, forthcoming) by Mary Ellen O'Connell (Notre Dame Law School).  This article discusses President George W. Bush's claim of wartime privileges to kill without warning and detain without trial those suspected of association with terrorist organizations. These claims were made in the face of contrary international law. Under international law, a war or armed conflict is characterized by organized armed groups engaged in intense, armed hostilities. To meet these criteria, such groups are associated with territory. In addition to the concept of armed conflict, the concept of conflict zone is important. Killing combatants or detaining them without trial may be permissible when done in a zone of actual armed hostilities. Outside such a zone, however, authorities must attempt to arrest a suspect and only target to kill those who pose an immediate lethal threat and refuse to surrender. 

"The Detention of Civilians in Armed Conflict" (American Journal of International Law, forthcoming) by Ryan Goodman (Harvard Law; NYU Law). In the armed conflict between the United States and Al Qaeda, the legality of the government’s detention scheme has been mired in confusion. The lack of clarity is especially acute with respect to the substantive criteria for defining who may be detained. A crucial determinant of the lawfulness of the scheme is whether international humanitarian law (IHL) permits the preventive detention of civilians, or particular groups of civilians. Part I maps the contemporary IHL regime, discussing features that pertain to detention of particular individuals in armed conflict. Part II analyzes conceptual errors involving U.S. detention law and practice. And, part III examines the humanitarian and security implications of the types of errors made by proponents and opponents of U.S. detention policy.  HT to National Security Advisors.

4th Circuit removes FSIA hurdle to most torture suits

By Sarah Wappett-Kendall, CNSL Research Assistant    

It has long been the rule that the Foreign Sovereign Immunities Act (FSIA) protects not just foreign governments but also their officials from suit in U.S. courts. However, in the recent case of Yousuf v. Samantar, the Fourth Circuit held that the FSIA does not protect individuals from suit under the Torture Victims Protection Act (TVPA). The district court had followed the majority of circuits and had ruled that the FSIA provides immunity to individuals who acted as an “agency or instrumentality” of a foreign state. The Fourth Circuit, however, split with its sister circuits, holding that the statutory construction of the FSIA does not allow it to apply to individuals (and certainly not to individuals who are no longer government officials). It held that common law doctrines of act of state immunity might apply, but deciding cases on the basis of these doctrines introduces more uncertainty and takes far longer because the Executive branch has to weigh in than the simple jurisdictional rule of FSIA. The Fourth Circuit’s view is (1) a better outcome in the instant case; (2) a better reflection of Congress’s intent in drafting the TVPA; and (3) a better protection of separation of powers; but it will encourage more suits against properly immune defendants (such as Belhas and Matar noted below) and force them to litigate on the merits in order to avail themselves of common law immunities such as the act of state doctrine.

Ali Samantar, was the Somali government official in charge of the nation’s armed forces in the 1980s and 1990s as First Vice President, Minister of Defense, and then Prime Minister of the Democratic Republic of Somalia. Plaintiffs allege that the Somali military, under the direction of General Samantar, disregarded the distinction between civilians and rebels and allege a litany of human rights abuses and war crimes including extrajudicial killings, torture, and arbitrary detentions. Plaintiffs brought suit in the Eastern District of Virginia under the TVPA and the ACTA against Samantar, who currently resides in Virginia. The court dismissed the complaint for lack of subject-matter jurisdiction on April 27, 2007. Plaintiffs appealed to the Fourth Circuit.

In considering the TVPA, the majority of courts have reasoned that Congress intended that FSIA should immunize all conduct expressly ratified by foreign governments, even when the challenged conduct is torture or other egregious human rights violations (see example here). FSIA therefore protects Samantar under the majority view, and the district court ruled accordingly when the government of Somalia wrote in support of Samantar claiming that any actions, including all those alleged in the plaintiff’s complaint, fell within the scope of his official duties.

Courts have ruled that individuals acting in their official capacities are also subject to FSIA immunity. However, defendants acting outside their official capacities do not. An official of a foreign government is acting within his official capacity when two conditions are met: (1) the defendant’s actions are lawful according to the laws of defendant’s state (and thus within the scope of his authority), or (2) those actions were authorized by a public admission of that foreign state. Under the majority view, FSIA immunity has largely been up to the defendant’s home government’s decision to ratify conduct or not.

Previous cases have emphasized whether the government in question was willing to ratify the controversial acts of its officers. In two recent cases, Israeli generals were sued under TVPA for ordering bombings against Lebanon and Gaza. In these cases, the Israeli government wrote to the State Department requesting that the suits be dismissed as the generals had been acting in their official capacities and asserting that allowing the suits to proceed would have been akin to suing the State of Israel itself. The U.S. State Department submitted a Statement of Interest (SOI) in Matar (but not Belhas) urging dismissal based on sovereign immunity. Both Belhas and Matar were dismissed based on immunity under FSIA, reflecting the position of the majority of the Circuits. In Yousuf, as in Belhas and Matar, the government of the defendant wrote on his behalf effectively ratifying all of his alleged actions. Without any evidence that the defendant acted in a personal or private capacity or that his actions were unlawful and not authorized by the state, the majority view is that Samantar should receive immunity under FSIA.

The Fourth Circuit, however, took a hard look at the linguistic construction of the FSIA and ruled that it does not afford immunity to individuals. Without analyzing the assessments and conclusions over the statute’s language, the result is that, as Judge Duncan noted in his concurring opinion, Samantar and future defendants will have to rely on “common law immunities that predate the FSIA” such as act or state and head of state immunity. While those potential defendants who would be immune would probably be the same, the change would not likely protect them from having to defend against a suit on the merits. The ratification of an individual’s actions by his home government no longer offers automatic immunity in U.S.courts (at least, in the Fourth Circuit). It would be subject to the opinion of the Executive Branch as articulated by the State Department as to whether act of state or head of state immunity should apply.

This outcome better respects Congressional intent for the TVPA and the ACTA as well as the legal principles of allowing the Executive to guide matters of foreign relations. This arrangement will permit the results in Belhas and Matar but also allow suits against defendants like Samantar to go forward. The trade-off is that, under the Fourth Circuit’s view, properly immune defendants will have to litigate a suit longer before it is dismissed under the common law act/head of state immunity.

Scholarship: "Legislating Clear-Statement Regimes in National-Security Law"

"Legislating Clear-Statement Regimes in National-Security Law" Jonathan F. Mitchell University of Chicago Law. Congress's national-security legislation will often require clear and specific congressional authorization before the executive can undertake certain actions. The War Powers Resolution, for example, prohibits any law from authorizing military hostilities unless it "specifically authorizes" them. And the Foreign Intelligence Surveillance Act of 1978 required laws to amend FISA or repeal its "exclusive means" provision before they could authorize warrantless electronic surveillance. But efforts to legislate clear-statement regimes in national-security law have failed to induce compliance. The Bush Administration inferred congressional "authorization" for the NSA surveillance program from ambiguous language in the post-September 11th Authorization to Use Military Force. Recent proposals to strengthen the clear-statement requirements in Congress's national-security framework legislation are unlikely to be effective without institutional mechanisms, such as points of order, that can deter future legislators from enacting vague or ambiguous legislation from which the executive might claim implicit congressional "authorization," and that can induce Congress to confront Presidents that act without specific congressional authorization.

Scholarship: "Former Presidents and Executive Privilege"

"Former Presidents and Executive Privilege" by Laurent Sacharoff (Temple University Beasley School of Law). This article argues that a new President may review a previous administration's assertions of executive privilege and should disclose the previously withheld information if doing so would be in the public interest.  Executive privilege arises from a President's Article II powers; when a new President arrives, she enjoys plenary Article II powers, including the right to assert or waive executive privilege.  The Privilege is not personal to any individual President but rather may only be asserted in the public interest, and a new President should review previous assertions of executive privilege vigorously, since Congress cannot determine whether a particular President has abused the privilege to hide evidence of wrongdoing in his administration. HT to National Security Advisors.

The Candidates’ Surprising Silence on Torture and Guantanamo Bay

By Annamartine Salick, CNSL Research Assistant and Nadia Asancheyev, CNSL Fellow

This week, for the first time ever, a military judge at Guantanamo threw out a confession by a detainee because it was obtained through torture.  Both the presidential candidates have stated that they oppose torture.  And yet neither Senator McCain nor Senator Obama has said a word about this landmark ruling.

Why haven't the candidates responded to this unprecedented decision?  How has torture disappeared so entirely from the political dialogue?  How is the next President going to deal with the two hundred and fifty plus individuals still imprisoned in legal limbo at Guantanamo Bay?  More importantly, what are the candidates' larger policy prescriptions for the detention, treatment and interrogation of individuals captured in the amorphous global War on Terror? 

Next week, Americans will elect a new President who will face enormous security challenges, both in protecting America's home front and in the international arena.  These issues are of paramount importance, both to how America will be perceived in the world, and to how we define ourselves as a nation.  Unfortunately, the candidates' positions are essentially indistinguishable, and to the electorate's detriment, it is almost as though there is a tacit understanding between them not to discuss these complex and thorny issues.

Senator McCain is widely respected by Democrats and even some Republicans, for breaking party ranks to spearhead legislation aimed at reining in the Bush administration's detention policy.  In the primary season, McCain's "zero-tolerance" policy on torture differentiated him from his opponents.  For instance,  Giuliani said the president alone should decide what interrogation techniques to use, and Romney famously declared that he would double the size of Guantanamo (to much applause).

However, since McCain secured the Republican nomination, he has scarcely mentioned torture.  Many McCain supporters were shocked when Governor Palin berated Obama for wanting to read "terrorists their rights."  Wasn't the whole point of the McCain's efforts to pass the Detainee Treatment Act to ensure the basic protections of detainee's rights?  McCain's tacit endorsement of Palin's speech suggests that he has moved away from his hard-line, principled position against torture to win political points from the Republican base.

On the Democratic side, Obama condemned torture early on.  In 2007, Obama stated: "torture is how you get bad information, not good intelligence. Torture is how you set back America's standing in the world, not how you strengthen it. It's time to tell the world that America rejects torture without exception or equivocation." This is just the type of rhetoric that is sadly lacking since the conventions.

Despite McCain's new-found silence on torture, both candidates appear to agree on the issue, but both seem complicit in declining to discuss it.  Their statements to date are simply inadequate for such a weighty and fundamental issue.  In the three presidential debates, they ignored both torture and Guantanamo. (Guantanamo was mentioned zero times; torture was mentioned three times in the context of McCain's own personal history.) 

The next President will inherit one of the most horrific, embarrassing, and harmful legacies of the Bush administration—its detainee policy.  How we detain and treat individuals captured in the War on Terror has massive ramifications, both at home and around the world.  America's international reputation has suffered untold damage from the abuse of Abu Ghraib and the orange jumpsuits of Guantanamo.  The country deserves candidates who will have a meaningful discussion on issues that the nation is debating.

As the clock ticks down to Election Day, we know every nuance of the candidates' economic platforms, but have stunningly little information about what each candidate will do about torture, Guantanamo Bay, and detainee policy generally.  It isn't too late to let us know.

DOJ's Uighur Reply Brief -- You'd Be a Threat to Harm Americans, Too, If We Had Detained You Unlawfully at GTMO for Six Years

By Professor Marty Lederman

The Department of Justice has filed its reply brief in the stay proceedings in the Uighur case.

This brief is less focused than the government's earlier brief on the risk of a threat from the detainees if they are released to reside temporarily in the United States. But the government does not abandon the argument, either. It once again asserts, for example, that "Congress has specifically determined that aliens who engage in activities of the type admitted to by petitioners should be excluded from the United States." In my post last night, I argued that this is not the case. The government does not provide any argument to support this assertion.

Moreover, DOJ now makes another argument, one evidently intended to ameliorate the problems it had previously created for the State Department's attempts to persuade another nation to accept the Uighurs.  DOJ now does not argue that the Uighurs are inherently dangerous to any civilian population; instead, it claims that "bringing petitioners to the United States pending appeal poses a risk distinct to this nation." The Department does not explain what the "distinct" risk to the United States might be -- after all, these detainees were, at most, preparing to fight the Chinese government.  But it does say this:  The Uighurs "ask to be brought to the country that has detained them for six years." The insinuation is obvious: These detainees would not be a threat to U.S. persons -- except that the Pentagon has unlawfully detained them at Guantanamo, incommunicado and without any justification, for more than half a decade . . . and so they naturally would be inclined to harm Americans in retaliation for such unjust treatment. As the Department puts it, "evaluation of potential risks . . . surely would be affected by the fact that petitioners were detained for six years by the country to which the district court has now ordered them brought."

In other words, we wouldn't have a legal justification for indefinitely detaining these prisoners at GTMO. . . except that we have already unlawfully detained them for six-plus years at GTMO, which has made them a threat to the safety of the United States.

Pretty audacious, no?

More details from Lyle Denniston here.

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

By Professor 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?

A Pre-9/11 Presidential Debate

By Justin Florence, CNSL fellow

This November we'll pick our first new President since the 9/11 attacks, but last Thursday's national security debate missed the significance of 9/11 and the Bush Administration's war on terror. Nearly all of Jim Lehrer's questions, and the candidates' answers, focused on U.S. policy toward particular nation-states. When should we pull troops out of Iraq? When should we send troops into Pakistan? What should our policy be toward Georgia, Russia, Iran, Israel, North Korea, and Afghanistan?

In this tour around the globe, the candidates and the moderator kept pausing at national borders. Even the discussion of terrorism centered on which nation-state marks the "central front" in the war on terror. As a result, the candidates never addressed the newest, hardest, and most important national security issue the country faces: What sort of policy should we pursue toward non-state or trans-national actors, in particular, terrorist organizations like al Qaeda?

Here are the three big-picture questions that Jim Lehrer should have asked the candidates about the war on terror.

As an initial matter, the Bush Administration has viewed the War on Terror (now, the Long War) as the fundamental security challenge of our generation or even our century. But it's not obvious that non-state jihadist terrorists are -- at least by themselves -- the nation's most significant current national security challenge. Legitimate arguments can be made that as we obsess over small bands of terrorists, the United States' economic, political, diplomatic, technological, and military power is being eclipsed by the rise of China and the rest of the world. Or that the greatest threats to Americans' security over the long run come from climate change, or the Earth's limited energy and agricultural resources. Senators McCain and Obama should be put on the spot about whether they believe terrorism is by itself the single great national security challenge of our time. Should the war on terror create the single overarching framework that drives U.S. policy in the coming 4 or 8 years. The answer to this question of national security priorities matters enormously. It will govern how we allocate resources, what sorts of strategic decisions we make with respect to military force, alliances, diplomacy, and the rule of law, and perhaps most significantly how the President and his senior advisers allocate their time.

Second, whether global terrorism is the dominant national security threat the United States faces, or just one of many, the President must decide what the scope of our enemy is in this new kind of conflict. Both Senators Obama and McCain (in contrast to some of Senator Obama's Democratic primary rivals) have indicated that they believe in the idea of a "war on terror." But it would be helpful to know how, exactly, they define our "enemy" in this war. Is it Osama bin Laden and his immediate associates in the Afghanistan/Pakistan border region? Is it all terrorist organizations everywhere in the world? Just the Islamic or jihadist groups? Does it matter whether or not organizations have any association or affiliation with al Qaeda, be it through direct contacts, or ideological affinity? Or whether they have ever targeted, or intend to target, the United States? Does the enemy include individual lone-wolf terrorists anywhere in the world who wish to cause mass destruction of some civilians? The Bush Administration has taken a sweeping approach on this issue, assuming that Islamic terrorist groups around the world who have any associations, however slight, with the core of al Qaeda can be subjected to detention as enemy combatants or even assassination. Even beyond the particular tactical questions of against whom we use military force, the definition of our enemy will determine what sort of strategic decisions the next Administration makes. Does it wish to pit one terrorist organization against another? To capture or kill as many "terrorists" as possible, no matter what their cause? To limit terrorists’ ability to inflict harm through a greater focus on homeland security? To use military force against enemies here in the United States?

Finally, the war on terror has been dominated by issues of law as much as policy. Can the NSA conduct certain types of warrantless domestic surveillance of phone calls and e-mails? Who can be detained as an enemy combatant? How can they be interrogated? Who can be subjected to targeted killings? Where can the military be used? These questions are at the core of counter-terrorism policy, but the Bush Administration approach has been to push the law to (in some cases, beyond) limits and then set the policy there at the outermost reach. Indeed, as Jack Goldsmith, Jane Mayer, Charlie Savage and others have demonstrated, it has been the lawyers who have dominated policymaking in the Bush Administration. The next Administration will be confronted with whether to adopt the Bush Administration's legal approach to the war on terror, to alter it, or to attack it through investigations or criminal prosecutions of Bush Administration officials. The Presidential candidates should let us know how they would approach the law in the war on terror. How do they view the role of lawyers in making national security policy? From what type of people would they seek legal advice? Would they always follow the advice of their lawyers, or sometimes, as did President Bush at one point with the NSA program, explicitly disregard it? What role should the President have in these questions, vis-a-vis the Justice Department, the Congress, American courts, and international tribunals?

Voters would benefit greatly from answers to these questions the strategic significance, substantive scope, and permissible tactics in the war on terror. It seems likely, as well, that the candidates are much farther apart on these big post-9/11 issues than they are on their policy positions with respect to individual nation-states. Neither Senators Obama nor McCain embrace immediate Presidential-level talks with Iran, but both would accept some diplomacy (as has the Bush Administration). So too, neither would precipitously withdraw from Iraq, but (again, like the Bush Administration) neither wants to stay forever. And both (once again, like the Bush Administration) would use military force within Pakistan in some situations. I suspect, however, that the candidates would have vastly different approaches to the questions described above.

Fortunately, it's not too late to hear a good debate on how the United States should define and respond to a threat that knows no national borders. There's a vice-presidential debate coming on Thursday, and two more Presidential debates in the weeks to follow. Let's hope these debates take the candidates beyond 9/11.