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

By Jack M. Balkin

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.

Full post as published by Balkinization on October 15, 2008 (boomark / email).