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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 Jack M. Balkin

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?

[UPDATE: In a comment to last night's post, William Ockham asked: "Why doesn't the government just come out and say it: We illegally imprisoned and tortured these guys and we're afraid they might hold a grudge against us." I thought William's comment was tongue-in-cheek. In fact, it was prescient. Never underestimate . . . ]

More details from Lyle Denniston here.

Full post as published by Balkinization on October 16, 2008 (boomark / email).