I'll play spoiler.

Okay, so the courts look at these cases and say, hey wait, the CSRT determinations about these cats being enemy combatants was wonky, so you need to rethink this.  Rethinking commences and, hey, surprise!: No charges against them, not enemy combatants.  

Everyone is totally cool with that.  

So, Uighurs, you are free to go home.  Safe journey.

Except, well, wait.  Home doesn't want them.  Uighurs: "We would like to come home, please. Can we  come back?"  Home:  "Uh, no.  You were in Afghanistan doing lord knows what.  We'd feel safer if you didn't come back.  we don't want you.  Sorry, tough luck."

Now, this may come as a surprise, but we can't just put 17 Uighurs on a plane and send them to any country we want, even if it is their home country.  That tends to violate sovreignty and all.  Oh, yes, you get no argument from me that it's damned wrong to be plucking people from hither and yon, we certainly don't care about sovreignty and all when we do that, no argument.  But that doesn't work in two directions.  However morally repugnant it is to steal people from their home nations, we can't just send them back.  Those nations may just keep them right at the airport, thank you very much, and f*ck you, United States, for trying to sneak them back in.  You bastards.

Okay, so we can't just pack them on a plane and send them home.  Got it.  Everyone agrees.  

But we can't keep them at Gitmo.  There's no legal way to do so, it's wrong, and they can't be kept there.  Again: everyone agrees.  Cool.

So:  what to do?

Bring them into the United States, let them live here! Put them in a community of other Uighurs!      Boom!  Done!  Problem solved!  Easy peasy lemon squeezy!  Right?
    
Okay, well, hold on just a quick second here.  I have a few questions. 

So, when we let them in, what do they come in as, U.S. citizens?  Well, no, we can't make them U.S. citizens, can we?  That's just sort of crazy.  They haven't been here very long--in fact, not at all--and under immigration law, it's a lengthy process, and we can't really grant them citizenship just because we imprisoned them without eventually charging them.  I mean, it just sounds unreasonable and goofy.  Hi, sorry we detained you because we thought you were involved in training at al Qaeda camps, here, have U.S. citizenship even though you have never lived here.  Don't forget to vote!

Okay, so that doesn't work. 

Well, maybe we can then make them slightly less than citizens, give them green cards and make them lawful permanent residents.  But wait.  Does that make sense?  Given the fact that there are literally hundreds of thousands of people who have applied for visas to come here, and have had to wind their way through the immigration requirements, we are just going to give these guys lawful permanent status?  Hmmm.

Well, wait, what if we do that, and one of them goes off and commits a crime?  Can we deport them? like we can other immigrants?  If so, how?  Wouldn't we have to bring them into the United States consistent with U.S. immigration law, like we do with other aliens?

Well, wait, if we can only bring them in through U.S. immigration law, what do we do about the provisions of the law that would otherwise make them inadmissible?  Do we just ignore those provisions? 

I submit, brothers and sisters, that while everyone can agree that what happened to the Uighurs is, at the very least, regrettable, how we get them out of Gitmo is a tricky business.  The devil, as always in areas of the law, is in the details.  And unless you want to rip apart some of the fabric of immigration law, then this issue takes time.  Unless a country is willing to take them, as one has.

(Also, if the Uighurs want to come to the United States, they can now do what every immigrant can and does do: they can go to the consular office at Palau and file a visa application.  Which would be considered by US Citizenship and Immigration Services and a determination made on the application.  After which, if the Uighurs don't like the determination made by the USCIS regarding their visa or applications to come to the U.S., they may sue under the APA in a U.S. district court.)

This, my friends and neighbors, is why I don't scream and pull hair when I hear that Obama has not released the Uighurs into the U.S., or warns that dealing with the Gitmo detainees like the Uighurs (non-enemy combatants, but nowhere to send them) will be our thorniest issue (it will), or when he takes positions on State Secrets privilege that seems anti-thetical to what he has previously stated, or when he hasd decided to keep (but significantly modify) military commissions.

Because, and all due respect to Prof. Greenwald       and company, these things aren't so easily solved (I have yet to read Glenn Greenwald's plan for how to deal with these folks).  

I am, as I have mentioned before, an attorney with the Department of Justice.

I wanted to drop a note regarding the headline on TPM today, and the accompanying link to a Newsweek article regarding the report on the work by Yoo and Bybee (and others) on the "torture memo" put out by the Office of Legal Counsel during the Bush Administration. 

The content of the memo and the articles speak for themselves, but I do hope beyond hope that those progressives who were quick to beat the drum that the Obama administration, and Attorney General Holder specifically, had sided with the Bush Administration on--depending on where you read it depended on how it was phrased--"justice for torture victims" and "torture policy" and "state secrets for torture techniques."  

I am inside the DOJ, and I can tell you that when the DOJ attorney stood before the Ninth Circuit and said that the Department would stand by the assertion of the state secrets privilege in that case, he meant what he said: that the Department would stand by the assertion of the states secret privilege in that case.  That was the position he was told to take, but people mistakenly conflate the position a trial attorney is told to take at a particular moment under particular circumstances as the assertion of broad policy by the Department regarding torture and/or state secrets, world without end, amen.

The assertion was made given a particular case at a time of transition.  The AG had been in place all of a week or so by the time the trial attorneys were preparing for their arguments before the Niners.  There were at that time (and remain, I believe) no deputies beneath Holder.  You are talking about a Department operating at this moment largely under the guidance of attorneys in the civil service who are not political appointees, and who would not dare to create policy lest their decisions tie the hands of the political appointees who will take their seats in short order (I should note that the civil service attorneys in the Department are stunningly committed to the cause of Justice here, and to do so in consultation with colleagues in an effort to understand and apply the law, regardless of political ideology and belief.  Which is why the last 8 years have been so demoralizing).

So when I saw the representation made by the trial attorney, followed by a statement from the DOJ and the White House that the assertion of the states secrets privilege would be reviewed, I understood that position to mean that until it was up and running, the position would be a safe placeholder position until Politicals (i.e., the political appointees) were in place and policy could be set.

Because, you see, it is far, far easier to later waive the privilege if you decide it is unwarranted than it is to assert a privilege you have stood up and waived. 

The trial attorney did the right thing in the Boeing case; the acting associate and acting deputy AGs did the right thing in taking a prudent course that would not tie this Administration's hands in the future (while leaving open the possibility in a change in the assertion of the privilege).   The cautious approach is the correct one.

I hope that this latest revelation shows that progressives need to stop, chill, think, and maybe have a little patience before concluding from one action taken in a limited manner at a time of transition does not portend the shape of policy for an entire presidency.  There are practical personnel and staffing matters that had more to do with this than anything.  The DOJ memo lambasting Yoo and Bybee is but the first of items that will show that the Obama administration--and this Department--are likely to implement changes that will establish clear policy and procedural differences between this administration and the last.

Chill out.  Be patient.  Stay tuned.