Going Off Senator Graham’s Cliff
Reaching across the aisle to solve the imaginary problem of Gitmo.


Andrew C. McCarthy

Does Daskal have influence? You decide. Debra Burlingame has recounted that, even as Attorney General Holder was promising that he would impose supermax confinement and “special administrative measures” (SAMs) to ensure the secure detention of terrorist prisoners in stateside jails, the Justice Department was actually capitulating on these restrictions. “Shoe-bomber” Richard Reid complained that the SAMs violated his purported First Amendment rights. Rather than fight, Justice abandoned the SAMs, and the convicted terrorist is no longer subjected to them.

This is exactly the sort of thing that would happen if the detainees were brought into this country. Except then, it won’t just be the Obama Justice Department failing to hold the line. It will be the federal courts striking prison restrictions and releasing detainees.

Neither Senator Graham nor the Obama administration can refute this point. Once the terrorists are physically in the United States, they are undeniably within the jurisdiction of the federal courts for all purposes. Up until now, the Supreme Court has manufactured for the detainees only a single constitutional right to habeas corpus (i.e., judicial review of their designation as enemy combatants). The Left claims they should have all constitutional rights. Yet the Court, in the 2008 Boumediene case, went no further than habeas, because the justices in the razor-thin majority understood how radical it was to vest constitutional rights in aliens who were situated outside our country.

In his Boumediene dissent, Justice Scalia stressed “the primacy of territorial sovereignty” in determining the rights of non-Americans. To underscore the point, Scalia quoted from the opinion of Justice Robert Jackson — Holder’s claimed inspiration — in the 1950 Eisentrager case: “The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society. . . . But, in extending constitutional protections beyond the citizenry, the Court has been at pains to point out that it was the alien’s presence within its territorial jurisdiction that gave the Judiciary power to act.”

Once the alien detainees are physically inside our country, all bets are off. Judges will conclude that they have the power to order the prisoners’ release, to endow them with the full gamut of U.S. constitutional rights, and to give them any privilege a judge would feel comfortable giving to an American prisoner.

Maybe Senator Graham has convinced himself that he can head that problem off. He could propose a law that prohibits the courts from releasing former Gitmo detainees in the United States and from giving them rights beyond those prescribed by Congress. If that’s what he’s figuring, it’s a delusion. If the Supreme Court holds that any accommodations it orders for the detainees are rooted in the Constitution — as the justices did in Boumediene — Congress will be powerless to do anything about it. Unless you have political branches with the will to stand up to judicial usurpations of this kind (and we don’t), the Supreme Court’s claim that a ruling is based on the Constitution is final. Case closed.

It is understandable why President Obama would be anxious to walk off this cliff. The Left loves surrendering to judicial control. The judges don’t have to answer to the voters. They are apt to endow the detainees with all the due-process rights the president would give our enemies if he thought he could get away with it.

What is harder to understand is why Senator Graham appears willing to go along. He has already been burned, big time. He was one of the prime movers behind the 2006 Military Commissions Act. The MCA stripped the federal district courts of the power to hear challenges by the detainees to their detention and trial by military commission. With this provision, Graham naively thought he had handled the problem of judges’ inflating the rights of terrorists beyond what Congress had prescribed.

Wrong. The Boumediene majority ran roughshod over the MCA’s jurisdiction-stripping provisions. That’s why we now have federal judges hearing detainee cases, declaring detainees not to be enemy combatants, and, in some cases, trying to order detainees released inside the United States.

And that’s what judges are doing while the detainees are in Cuba. Wait ’til you see what happens once we’ve all gone over Senator Graham’s cliff.

National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).


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