The Blog

A REAL Problem for Obama

The law that may stop the president from releasing terrorists into the United States.

12:00 AM, Jun 2, 2009 • By STEPHANIE HESSLER
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

The Bush administration appealed, arguing that the release of the Uighurs into the United States conflicts with the REAL ID Act and other immigration laws. This February, the D.C. Circuit Court of Appeals reversed Judge Urbina's ruling on the grounds that he had no "power to order an alien held overseas brought into the sovereign territory of [our] nation and released into the general public." Instead, the D.C. Circuit Court left the Uighurs fate to the political branches, while noting (without deciding) that there could be legal issues as to whether the president "may ignore the immigration laws and release [the Uighurs] into the United States without the consent of Congress."

The Uighurs appealed the ruling to the Supreme Court where it is currently pending. Late last Friday the Obama administration filed a brief urging the Supreme Court to deny the Uighurs' appeal, based largely on separation of powers grounds. While arguing that the Judicial Branch has no power to free the Uighurs, the Department of Justice repeatedly emphasized the Executive Branch's prerogative to decide their fate.

And, the administration may well determine that some (if not all) of the Uighurs should be released in our country. In fact, one administration official has said that the President may not only seek to free the Uighurs--but also may offer them government assistance to adjust to life in America: National Intelligence Director Dennis Blair said the Uighurs, if freed to the United States, might receive taxpayer-funded aid to "start a new life and not return to some of the conditions that may have inspired them in the first place."

Not so fast says Republican Senator Jeff Sessions of Alabama, the ranking member of the Judiciary Committee. He has sent two letters in the last two months to Attorney General Holder asking how the administration plans to release people with terrorist ties into the United States without directly violating the REAL ID Act. The administration has yet to respond.

Senator Sessions states that "[i]t would be both dangerous and contrary to our immigration laws to admit trained foreign militants into our civilian population." Specifically, REAL ID expressly bars entry to anyone with paramilitary terrorist training. Sessions explains that the act, therefore, forbids entrance to the Uighurs because they have "trained at camps run by the Eastern Turkistan Islamic Movement, which has been designated as a terrorist organization by both the United States and the United Nations." (President Obama is aware of this fact, having acknowledged that its leader is a "brutal terrorist.")

The reason the administration has yet to reply to Senator Sessions may be that it recognizes it will have to ask Congress to repeal parts of the REAL ID Act for domestic detainee release to be lawful. And--until recently--the president might have expected full support from members of his own party. Given that Congressional Democrats have just refused funding to close Guantanamo (evidently they are not especially concerned about the President's self-imposed deadline)--they may be in no hurry to rescind part of a national security law so that we can open our doors to trained militants.

Stephanie Hessler is a former constitutional lawyer for the Senate Judiciary Committee.