Ah, but the Question Is *Not* Whether It Is “Wise” To Detain the Uighurs, “All Things Considered”

OK, so perhaps I went a bit overboard with the Ouija board metaphor. No, I do not think that the military’s detention of the Uighurs was just random, or whimsical, or the product of consultations with the Easter bunny.

More to the point, I, too, accept Eric’s assumption—for how could anyone deny it?—that “the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals,” and that such considerations are what drive its detention decisions. Of course that is the case. The Chinese haven’t “conned” our military. We’re doing the Chinese a favor—presumably because the administration believes that will redound to our national interests in the long term. And on top of that, we are incapacitating radicalized folks who just might present a danger to us one day, and/or who just might have some intelligence of value that we could extract if only we can use “enhanced” interrogation techniques on them during incommunicado detention over a long period of time.

From the military’s perspective, if there is reasonable supposition that the Uighurs might be dangerous—say, a 1 percent chance—and further suspicion that they might, just might, have some intelligence value (say, another 1 percent chance), and if our favor for the Chinese here might result in a reciprocal favor on our behalf from Beijing … well, then, why not detain them for six years? If that’s all the executive branch had to consider—and if its views would never be subject to any review by any other entity (which was the administration’s objective in choosing Guantanamo)—well, then, of course it would err on the side of suppressing virtually every possible threat, no matter how minor or how speculative.

And, if that were the relevant question here, then yes, it would be fairly unnerving to have the federal courts “make an all-things-considered judgment about the wisdom” of the military’s decision.

So, it’s a good thing that’s not what the D.C. Circuit has been instructed to do.

Instead, the judges have been assigned to evaluate whether a preponderance of the evidence demonstrates that these are persons whom Congress has given the president the lawful authority to detain. The judges did not decide that it would not be “wise” to continue the detention—they determined that it would be illegal . If Parhat has not “supported” the ETIM; or if the ETIM is not functionally a part of the Taliban; or if the ETIM has not engaged in hostile action against the United States and its coalition partners; or if (as I’ve argued) the ETIM and Parhat would have to have a much closer and more direct connection with al-Qaida in order to bring this detention within the authority the AUMF grants … well, then, in that case the president would not have the legal authority to detain Parhat—indeed, in my view, he’d be acting contrary to an implied limitation that Congress has established.

It was not very difficult, or outside their ordinary judicial function, for this panel of judges to determine that the Pentagon had failed to present any credible evidence on even the two easiest prongs of the Pentagon’s own theory of why Parhat was detainable-that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.

Eric’s view appears to be that such questions, while relevant, should hardly be determinative—that the only pertinent question ought to be whether the United States is better off with the Uighurs in captivity, or better off if we release them, “all things considered.” And because judges can’t possibly evaluate all the myriad considerations of national security in the way that military officials can, they should reflexively defer, unless they sniff the Easter Bunny lurking. That is to say—and as Eric’s closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that’s not the view of history and of all Western nations engaged in armed conflicts for centuries; it’s not the considered judgment of virtually every president, military commander, and public official we’ve ever had, from Washington on down; it’s not the view of the courts; it’s not Congress’s view; hell, it’s not even the view of the Bush administration, which conceded to the court that it was legally required, at a minimum, to have sufficient grounds for concluding that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.

It’s not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there’s no constituency at all for reviving it (outside the academy, that is). 

Once one acknowledges that there is a legal standard that the Bush administration must satisfy in order to detain someone incommunicado for more than six years, it makes perfect sense for Congress (or the Constitution) to authorize federal courts to ask the executive to make at least a plausible showing that it has satisfied that legal test. In the case of the Uighurs, the Bush administration has failed that test miserably—which is “all” that Judges Sentelle, Garland, and Griffith quite understandably concluded.