Appellate court rejects Uigher transfer to US

posted at 12:15 pm on February 18, 2009 by Ed Morrissey
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Last October, Judge Ricardo Urbina ordered the release of 17 Gitmo detainees into the US, specifically his court, as a rebuke to the Bush administration.  The Fourth Circuit stayed the order on appeal almost immediately, and today reversed it altogether.  The appeals court threw out Urbina’s order, keeping the US from self-importing al-Qaeda terrorists:

A federal appeals court has overturned a ruling that would have transferred 17 Guantanamo Bay detainees to the United States.

The men are Turkic Muslims known as Uighurs. They have been cleared for release from Guantanamo, but the United States will not send them home to China for fear they will be tortured. So they remain in prison while the U.S. figures out what to do with them.

A federal judge ruled in October that the men should be transferred to U.S. soil because they were no longer enemy combatants and the government didn’t have the authority to hold them.

This is of a piece with the Abu Qatada decision in the UK today, a nice bit of synchronicity for the Anglosphere.  For some odd reason, judges seem to think that Western societies have to apply due process to the extent of suicide.  In both countries, the appellate process has apparently restored some common sense.

In this case, the reversal comes on something of a technicality, but one that hits at the heart of the problem.  The court ruled that Urbina exceeded his authority by issuing an immigration order.  The 4th Circuit ruled that only immigration officials can issue that kind of order.  That makes the point that the executive branch, not the judiciary, has the responsibility for keeping the nation secure.  It also underscores the point that the Uighers do not have the same due-process rights as do American residents — which is one reason why we don’t bring those detainees onto American soil.

Will the Obama administration continue to oppose Urbina’s efforts to free terrorists in the nation’s capital?  That will be interesting to see.

Update: Andy McCarthy has more at The Corner as he reviews the opinion:

Justice Frankfurter summarized the law as it continues to this day:  “Ever since national States have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination by each State” – a matter “wholly outside the concern and competence of the Judiciary.”

He’s not sanguine that the majority on the Supreme Court will agree.

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