The Blog

Obama's Rule of Law

8:49 PM, May 21, 2009 • By THOMAS JOSCELYN
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

In his speech today, President Obama surrounded himself with images of the law. In a hall housing the U.S. Constitution and the Declaration of Independence, the president clearly sought to portray himself as one who was protecting America's legal heritage after almost eight years of "fear" and "hasty decisions."

With respect to closing the detention facility at Guantanamo, President Obama said the legal challenges he faces are nothing new. In his prepared remarks, the president said:

Indeed, the legal challenges that have sparked so much debate in recent weeks in Washington would be taking place whether or not I decided to close Guantanamo. For example, the court order to release seventeen Uighur detainees took place last fall - when George Bush was President.

Later, the president discussed different categories of detainees. He explained that one category of detainees had already been exonerated by the law.

The third category of detainees includes those who we have been ordered released by the courts. Let me repeat what I said earlier: this has absolutely nothing to do with my decision to close Guantanamo. It has to do with the rule of law. The courts have found that there is no legitimate reason to hold twenty-one of the people currently held at Guantanamo. Twenty of these findings took place before I came into office. The United States is a nation of laws, and we must abide by these rulings.

The "court order to release seventeen Uighur detainees" that President Obama referred to is Judge Richard M. Urbina's October 17, 2008, opinion in the D.C. District Court. Judge Urbina's order built upon an earlier decision by the D.C. Court of Appeals in the matter of Parhat v. Gates. And of the "twenty-one" people Obama says "there is no legitimate reason to hold," seventeen of them are the Uighurs referenced in these two decisions.

There are at least two problems with President Obama's comments.

First, the two decisions cited above are riddled with errors and omissions. One omission is particularly noteworthy. Neither Judge Urbina's decision, nor the Appellate Court's decision mentions Abdul Haq, the master terrorist who trained many of the Uighur detainees.

Abdul Haq is a member of al Qaeda's elite Shura Council and has plotted terrorist attacks against Chinese targets for years. We know this because Obama's Treasury Department designated Abdul Haq a terrorist affiliated with al Qaeda and the Taliban just last month. And we know that he was the leader of the Uighurs detained at Gitmo because many of the Uighur detainees have admitted it.

Despite the fact that Haq is the leader of the Eastern Turkistan Islamic Party (ETIP), a UN and U.S. designated al Qaeda affiliate, and was the leader of the Uighur detainees' group in Afghanistan, there is no mention of him in the court decisions cited above.

So, the very decisions that Obama says establish the "rule of law" are seriously flawed. It is true that the Treasury Department's designation came out after the court decisions. But, it was no secret who Haq was or that his organization was affiliated with al Qaeda. Haq and his group have advertised their ties to al Qaeda in their propaganda videos.

This is why President Obama's own Treasury Department says that Abdul Haq is a threat. It does not make sense, therefore, to suggest that Haq's trainees are necessarily nothing to worry about.

Second, President Obama did not mention that another court shot down Judge Urbina's decision earlier this year. While Obama mentioned that "the court order to release seventeen Uighur detainees took place last fall," he failed to say that another court offered a sharp rebuke to Judge Urbina's ruling in February of this year. A senior judge from that court wrote, "We are certain that no habeas corpus court since the time of Edward I ever ordered such an extraordinary remedy." The courts, therefore, have not determined whether or not any of the Uighurs can be released into the U.S.

The Obama administration has reportedly been considering releasing some of the Uighur detainees into the U.S. soon. If it does, then perhaps the president's conception of the "rule of law" is really just in the eye of the beholder.