Senator Graham hailed the Washington Post story indicating that the Obama administration is leaning toward returning KSM and the 9/11 plotters to a military-commission trial. He’s clearly right that that would be a very good thing. He also could not be more right in arguing that we have to look at the threat we face as a war (meaning that the laws of war govern), as opposed to a law-enforcement matter to be dealt with under civilian court procedures. The reason he offers for this is, to my mind, irrefutable: There are dangerous terrorists who mean grave harm to the U.S. but as to whom we do not have, and will not have, sufficient evidence to obtain a conviction at trial — military or civilian. The laws of war permit the indefinite detention of such enemy combatants (or “unprivileged belligerents”); the civilian justice system does not.
As a result, Senator Graham reasons, we need to have a system for detaining enemy combatants: one that has enough due process that we can be confident we are holding the right people, but one that protects our national defense information from disclosure to the enemy during wartime. I take Senator Graham to be saying (and I apologize if I have misunderstood him on this) that such a system must be created by Congress. I could not agree more with this, and I’ve been making the same argument for about six years. We can’t allow the judiciary to continue ruling on these detention issues with no guidance. Allowing the courts to make it up as they go along is resulting in some atrocious rulings — second-guessing the military about who is an enemy combatant in cases where the military has eminent good reason to detain, ordering detainees released, and even trying to order detainees to be released inside the United States.
So far so good from Senator Graham – really good, in fact. So then Martha MacCallum asks him, “Have you had any communication with the White House over this very specific issue — that if they go to a military tribunal, for [KSM] and company, that you would . . . be a voice in Congress to close Guantanamo bay?” Here is the Senator’s answer:
You would not be able to close Guantanamo Bay by simply putting [KSM] back into military court. You would have to have a legal system … that allows the 48 people the administration said are too dangerous to let go, to have a statute that would deal with that situation, to give them due process, but recognize that, under military law, they could be held without trial.
Notice two things. First, Senator Graham doesn’t answer Martha’s question (and that was not the only time in the interview when he refused to give a direct answer to the question whether he is negotiating a deal in which Gitmo would be closed). So obviously, he is in such negotiations. That is not surprising because he has conceded as much on other occasions. (See, e.g., here: Senator Graham urging that Republicans help solve the “practical problem” of Gitmo so Democrats don’t have to “walk off a political cliff here without Republican support”).
Second, Graham is stuck — seemingly immovably — in the mindset that closing Gitmo is a desirable outcome, especially if we get enough other accommodations from the administration on commissions, detention, and the general applicability of the law of war.
This is where he loses me. Let’s put aside the facts that Gitmo is a perfect location in terms of safety and that we’ve spent boatloads of money to make it that way. All the good that Senator Graham is laboring to accomplish — and that’s a lot of good here, no question — would be wrecked by closing Gitmo and bringing the detainees into the country. Why work this hard just to throw it all away?
The detainees are hostile aliens. As long as they are physically outside sovereign U.S. territory, they have no legitimate claim on the protections of the Bill of Rights. If Congress carefully crafts a detention procedure law along the lines of what Graham seems to be suggesting, there is a good chance that this new law would not be disturbed by the courts. That is, Congress would be in charge, and the terrorists would get only the rights Congress granted them.
Is it certain that this is how it would play out? No. After all, in Boumediene, the Supreme Court undid Senator Graham’s effort (in the Military Commissions Act) to keep the federal district courts from meddling in military detention proceedings. The court employed the radical theories that Gitmo, though outside the U.S., is somehow within the jurisdiction of the U.S. courts, and that alien enemies, though outside the U.S., are somehow endowed with a constitutional right of access to our courts to challenge their wartime detention (i.e., habeas corpus).
Could the Supremes do that again? Anything is possible. But I think they would be on much thinner ice invalidating a comprehensive detention regime that the political branches – which are constitutionally responsible for the conduct of war — had carefully prescribed in wartime for alien enemies held outside the U.S. and thus outside the Court’s jurisdiction. Though Boumediene was a very damaging case, it just got the detainees into court – it did not give them constitutional rights once they got there. (That’s what the lower federal courts are doing now, which is why we need to stop them.) Giving the detainees full constitutional rights would be a much more drastic step. I think (and hope) it could be a bridge too far for Justice Kennedy.
By contrast, if Gitmo is closed and the detainees are brought into the U.S., judges will hold that their presence within the territorial jurisdiction of the courts empowers the courts to endow them with a wide array of constitutional rights and privileges (just like the courts have given illegal aliens constitutional protections). That means judges would have a much stronger basis to invalidate various components of the detention framework that Senator Graham will have worked so hard to build. The judges may say, for example, that Fifth Amendment due process requires more discovery than Congress wants to give the terrorists; that Sixth Amendment confrontation rights require the government to make witnesses available; that Fourth Amendment search and seizure principles endow the detainees with various privacy protections; that the First Amendment requires the government to allow them to meet for communal prayer; and so on.
To quote President Obama, let me be clear. I think Senator Graham is trying to do the right thing. He has been extraordinarily persuasive in articulating why we must be in a law of war paradigm. In my humble opinion, his claim that Gitmo is a problem rather than a big-time boon for the United States is ill-considered, but I do not for a second suggest that he is anything but sincere about it. With due respect, though, I think he is failing to see how closing Gitmo would be the surest guarantee of the thing he is trying to prevent: the irrevocable and catastrophic conversion of war-fighting into law-enforcement. And I believe he overrates how much Americans want bipartisanship. When the stakes are this high, Americans want us to stand our ground. Gitmo is ground well worth defending.