The Uighurs and the 'Torture' Memos

White House lawyers are refusing to accept the findings of an inter-agency committee that the Uighur Chinese Muslims held at Guantanamo Bay are too dangerous to release inside the U.S., according to Pentagon sources familiar with the action.

This action — coupled with the release of previously top secret legal opinions on harsh interrogation methods — demonstrates the Obama administration’s willingness to ignore reality.

President Obama’s decision to close the terrorist detention facility (known as “Gitmo” to the military) was made despite Bush administration determinations that there were no realistic alternatives to it.   

Gitmo holds three classes of terrorist detainees:  first, those that are held for prosecution of terrorist acts such as Khalid Sheik Muhammed; second, those who cannot be prosecuted and will be released or transferred to another country for trial or incarceration; and third, those who cannot be prosecuted (because the information against them is intelligence information inadmissible in court) but who pose such a danger that they cannot be released.

The last category encompasses a large number of the Gitmo detainees. The Supreme Court has held — in the Hamdan decision — that “administrative detention” is permissible in time of war.  

After Obama’s promise to close Gitmo, the White House ordered an inter-agency review of the status of all the detainees, apparently believing that many of those held would be quickly determined releasable.  The committee — comprised of all the national security agencies — was tasked to start with what the Obama administration believed to be the easiest case: that of the seventeen Uighurs, Chinese Muslims who were captured at an al-Queda training camp.

The Uighurs sued for release under the Supreme Court’s Boumediene decision, which gave Gitmo prisoners the Constitutional right to habeas corpus.  Last October, a federal court ordered their release into the United States, but an appeals court overturned the decision, saying the right to make that determination rested entirely with the president.  Since then, Attorney General Eric Holder has said that some of the Gitmo inmates may be released into the United States.  

That, apparently, is what the White House plans for the Uighurs and others.  

Reviewing the Uighurs detention, the inter-agency panel found that they weren’t the ignorant, innocent goatherds the White House believed them to be.  The committee determined they were too dangerous to release because they were members of the ETIM terrorist group, the “East Turkistan Islamic Movement,” and because their presence at the al-Queda training camp was no accident.  There is now no ETIM terrorist cell in the United States:  there will be one if these Uighurs are released into the United States.

According to Defense Department sources, the White House legal office has told the inter-agency review group to re-do their findings to come up with the opposite answer.  

The White House already came up with the opposite answer in declassifying and releasing the so-called “torture memos,” the previously top-secret legal opinions which found, under the law as it was written at the time, that interrogation techniques which ranged from the mildest to the toughest — from open-fingered face slapping to waterboarding — were permitted under the law.

The legal opinions were correct. Under the law in 2002, threats and mild physical abuse — which were not likely to cause lasting psychological harm — were legal.  Waterboarding, the harshest technique which triggers the autonomic reaction of the sense of drowning, was deemed legal because of extensive experience in training pilots and special operations troops who didn’t experience lasting harm.

But now, having released the details of the techniques, the Obama administration — through Director of National Intelligence Dennis Blair — has said that none of these techniques will be used again.  Coupled with the publication of the Army’s guide to interrogation of prisoners, al-Queda and all other terrorists now know what to expect if captured by Americans.  And, as they have in the past, they can use this knowledge to train to resist the techniques we can use.

White House chief of staff Rahm Emanuel excused the release of the memos because, he said Sunday, that information about the techniques revealed was already public and that they have been banned.  Which begs the question of how successful interrogations can ever again be performed.

The Obama administration’s action has given terrorists what may be a decisive advantage.  If a detainee knows what to expect, his confidence cannot be shaken.  He cannot be forced out of his comfort zone into doubt.  And he can withhold information that may be critical to saving American lives.

President Obama and Attorney General Holder have embarked on a course that denies our intelligence agencies and military forces the ability to gather intelligence needed to interdict and prevent future terrorist attacks.  Releasing the Uighurs into the United States as free men creates a specific terrorist threat within our borders.  

The administration is now under pressure to constrain the NSA’s terrorist surveillance program — what the media and liberal pressure groups insist on calling “warrentless wiretapping” — because it allegedly gathered more information from more sources than it was supposed to do in the last few months.  

The heated debate over the Foreign Intelligence Surveillance Act — the law under which that program functions — resulted in a new law that provides specific and effective protections of American civil liberties that are Constitutionally sufficient.  If President Obama continues his current course, he will go farther in limiting how this program functions.  

In his dissent in the Boumediene case, Justice Scalia said that it gave the power to detain enemy combatants to the branch of government that had the least expertise in national security, the courts.  He added that the decision would probably cost American lives.

Scalia was correct on the latter point, but the advent of the Obama administration makes the former at least questionable.  How many more advantages is President Obama willing to grant our enemies?