"Try Them Or Release Them?" How About Reading Them Their Rights?

President Obama’s proposal for a new legal system in which terrorism suspects could be held in “prolonged detention” inside the United States without trial would be a departure from the way this country sees itself, as a place where people in the grip of the government either face criminal charges or walk free.

NYT, President’s Detention Plan Tests American Legal Tradition, 22 May 2009

Oh, leftie heads are about to explode. The Obama Administration, in its latest Friday bad news dump, took the Bush position in its brief filed with the Supreme Court yesterday that, even though a federal court has ordered that the seventeen Uighur Chinese currently being held at Guantanamo must be released, federal Courts have no power to order them released in the United States. According to the Obama DOJ, they can retained at Guantanamo indefinitely until a suitable country agrees to take them. All those lefties who have been crying 'try them or release them' are going to need therapy.

That said, Obama is in fact moving away from Bush in one very critical area. He is returning us to the failed 9-10 law enforcement model to combat radical Islamic terrorism.

This from Andy McCarthy at the NRO:

The Uighurs, Chinese Muslim detainees held at Guantanamo Bay, received terrorist training at al Qaeda affiliated camps . . . and were captured after the U.S. invasion of Afghanistan. They are the Left's combatant cause célèbre. The military took the incoherent position that they were trained al Qaeda terrorists but that their real beef was with China, not us. Thus, the federal courts have held that they are not enemy combatants. The government has been trying to relocate them for years but no country will take the remaining 17 — other than China, where our treaty obligations arguably forbid us from sending them because there is reason to believe they'd be persecuted.

Of course, it's one thing to say that they are not enemy combatants and should therefore be released. It is quite another thing, though, to say that they should be released into the United States (which, because of their terrorist affiliations, would violate federal immigration law). . . . [F]ederal judge Richard Urbina did try to order their release into the U.S. (Here at NRO, the editors weighed in on Judge Urbina's absurd decision, here.) Fortunately, in a well reasoned decision authored by Judge Raymond Randolph . . . the DC Circuit Court of Appeals overruled Judge Urbina, holding that just because courts have the power to review whether a prisoner is properly designated an enemy combatant does not mean they have the power to order the release into the United States of those found not to be enemy combatants.

The Uighurs appealed, and today the Justice Department filed its responsive brief. Solicitor General Elena Kagan argued — consistent with the Bush administration position — that the Uighurs have no right to be released into the U.S. As Lyle Denniston recaps at SCOTUSblog:

The brief holds to the position of the Bush Administration that a court’s power to issue a remedy in a habeas case — in the wake of the Supreme Court’s mandate that the detainees have a constitutional right to seek their freedom — is limited to a finding of eligibility for release, without an actual release from captivity while diplomatic negotiations to resettle a prisoner continue. . . .

Read the entire article. Let the wailing and gnashing of teeth commence.

But it would seem that there might be wailing and gnashing on both sides of the aisle. As Andy McCarthy points out in a separate article, Obama is moving us towards a 9-10 law enforcement model for dealing with terrorism, putting the FBI back in the drivers seat. Read the article here. As McCarthy documents, that did not work out well when tried in the 1990's.