A Case Built on Irrationality

The Uighur saga nicely captures all the irrationality and hypocrisy of our counterterrorism approach. That policy foolishly holds that we can focus on terrorist activity without focusing on the jihadist ideology that motivates it.

So what happens? The military, which has released many terrorist operatives in the course of the past several years, saw the Uighurs as a group that could be unloaded. It took the position that they were “enemy combatants” but not America’s enemy, reasoning that these detainees’ dispute was with China. This contention was legally incoherent: one must be America’s enemy to be detained by the U.S. as an enemy combatant. It also showed a deep ignorance of jihadist ideology.

In fact, the Uighurs were captured by coalition forces after the U.S. invasion of Afghanistan. Their presence there was not an accident: They had sought and received instruction in the paramilitary camps of the East Turkestan Islamic Movement, an al-Qaeda affiliate formally designated as a terrorist organization under U.S. law. Besides their training, at least some of the Uighurs are known to have fought against Coalition forces, and to have joined other terrorist detainees in protests at Guantánamo Bay.

Obviously, because the military’s position was untenable, it was appropriate for the reviewing federal appeals court to invalidate the enemy combatant designation — something Congress gave the court the power to do. But the judiciary did not have the power to order the Uighurs released, much less released into the U.S.

In fact, the federal REAL ID Act of 2005 provides for the exclusion of any alien who has received terrorist training or has belonged to an organization that promotes terrorism — against anyone. The Uighurs are excludable on both grounds, even if one accepts, for argument’s sake, that they were trained for the purpose of conducting operations against China.

Now, for the purpose of resettling this group, Mr. Obama may ignore statutory provisions — measures enacted precisely because paramilitary training has been a feature of virtually all attacks carried out by radical Islam against the U.S.

Clearly, we cannot send the Uighurs to China; our treaty obligations forbid transfer to countries where detainees are likely to be persecuted. Consequently, they should be detained until another country willing to receive them can be found. Relocating them in the U.S. would be irresponsible and fly in the face of the law.