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The Uighur next door

Your friendly neighborhood East Turkestani terrorist

By Seth Mandel

October 24, 2008
 

In October 2001, Huzaifa Parhat's home was an al-Qaeda-funded terrorist training camp in Tora Bora, Afghanistan.

Seven years later, on the orders of a federal judge, don't be surprised if you bump into Parhat at your grocery store, park, or post office. Just hope he isn't holding that Kalashnikov rifle he admits he learned how to use from a close ally of Osama bin Laden.

Parhat is a Uighur (pronounced WEE-gore). Uighurs are Muslim natives of the Xinjiang region of China, though they prefer to call it East Turkestan. They are separatists fighting for their independence, and as such have been subjected to harsh oppression by the Chinese regime.

According to the U.S. State Department, most Uighurs do not violently support an independent East Turkestan nation, but the more extreme minority two decades ago formed the East Turkestan Islamic Movement (ETIM), a violent terrorist group with a growing presence and influence throughout Asia.

Hasan Mahsum, leader of the ETIM until he was killed in 2003 in raids on al-Qaeda-linked camps, established ties with bin Laden in the late 1990s, according to terrorism expert and economist Thomas Joscelyn. Soon after, the ETIM opened, with bin Laden's help, the training camp at Tora Bora, from which Parhat was fleeing when he was captured.

In June, U.S. District Judge Ricardo M. Urbina ordered Parhat's release, and on Oct. 7 ordered the release of the remaining 17 Uighurs at Guantanamo Bay, after declaring that they were no longer to be considered "enemy combatants." But to where should they be released? If sent back to China, the Uighurs' attorneys argued, their clients would be killed by the Chinese government. No other country will take them, for fear of angering China (and fear of importing Muslim terrorists).

And so, after the Uighurs assured the court that they only hate China -- the U.S. is A-OK in their books -- Urbina ordered their release into the U.S. According to the Washington Post, a Uighur in the audience shouted "We won!" which was followed by a raucous cheer from the others.

The question is, then, who lost?

Andrew McCarthy, chair of the Foundation for Defense of Democracies' Center for Law and Counterterrorism and the lead prosecutor in the trial following the 1993 attack on the World Trade Center, warned of the Uighurs' impending release in June. Writing at National Review Online, McCarthy described the case as the fallout from the Supreme Court's June 12 decision in Boumediene to allow foreign nationals held at Guantanamo to challenge their detention in U.S. federal courts via the right of habeas corpus­ -- a right formerly granted by the Constitution and upheld in precedent only to Americans. The decision paved the way for the Uighurs' case.

"The question of who is an 'enemy combatant' is not a legal issue," McCarthy wrote.  "It is, in the first instance, a battlefield determination to be made by our armed forces, and thereafter a political issue to be decided by the officials our system makes responsible for the authorization of military force and the conduct of war.

"Federal judges tend to be very good lawyers. But there is nothing in the training of a lawyer that equips a judge with special expertise to decide who is an enemy combatant. More importantly, judges don't answer to the American people, who have chosen democratically to wage a defensive war against Islamic radicals and have elected a commander-in-chief, checked by other elected representatives in Congress, to make such wartime calculations as who the enemy combatants are. But here in Boumediene world, we are now evidently going to pretend that these are simple legal questions."

McCarthy asks how the decision is in the interests of the American people, but it's clear the judges, in this case and others like it, don't consider themselves to be sitting on a distinctly American court. By way of explanation, the legal scholars at the libertarian Cato Institute -- usually enamored of any decision that grants more people more freedom and less government oversight -- were left scratching their heads over Boumediene. Writing for Cato's annual "Supreme Court Review," University of Chicago Law School professor Eric A. Posner has an explanation for how Justice Anthony Kennedy, who wrote the majority opinion on Boumediene, made his decision.

Posner writes that the judicial precedent for the dissenting opinion on Boumediene is Eisentrager, in which the Supreme Court ruled that the U.S. military had jurisdiction over Germans who engaged in military activity against the U.S. after Germany's surrender in World War II, and were caught and held in an American military prison in Germany. The German aliens had no right to habeas corpus, the court ruled in an opinion delivered by Justice Robert Jackson.

"[T]he crucial assumption in Eisentrager is that overseas noncitizens are not entitled to judicial process, logistics or no logistics," Posner writes, explaining that the logistical ease with which prisoners can be tried in U.S. courts is irrelevant. "Why doesn't Justice Kennedy confront what seemed like a natural assumption to Justice Jackson -- that nonresident aliens just don't have the rights that Americans have, and thus don't deserve judicial protection of any sort? The answer is that Justice Kennedy is a cosmopolitan."

Posner goes on to explain that judicial cosmopolitanism is a belief that the U.S. must uphold human rights as part of its responsibility to confer global constitutional rights on those normally unaffected by the Constitution.

Think Sen. John Kerry's "global test" as applied to American constitutional law: forget case law, disregard precedent, and don't get bogged down in the decision's effect on Americans -- we're part of a global village now, and the law must conform to our critics' interpretation of our responsibilities.

Posner explores the phenomenon of judicial cosmopolitanism, and concludes thus: "The constitutional basis for this view remains to be worked out. Although it may be good policy for the American government to respect -- or at least take account of -- the interests and values of foreigners, it is not clear why American judges should compel the government to do so by giving overseas aliens the right to bring actions against it in American courts, or by incorporating foreign norms into American constitutional law."

In other words, why a judge would rule that the existing American Constitution should be ignored while a fictional global constitution should be adhered to is anybody's guess, but it sure seems irresponsible and dangerous.

None of this means that everything the U.S. military -- and the politicians directing much of its action -- did was strategically sound during the course of the global war on terror. Nor does it assume that mistakes were never made. But terrorists captured in al-Qaeda-funded training camps located at the epicenter of our enemies' campaign to destroy our nation and murder innocent Westerners should not be allowed to rewrite precedent-setting Constitutional case law on the basis of a judge's cosmopolitan desire to appease our critics.

The release of Parhat and his fellow Uighurs may pass some perverse global test, but it fails the American people.

Seth Mandel is the managing editor of The Jewish State.