Andrew C. McCarthy
Thursday, February 25, 2010
Closing the detention center at Guantanamo Bay is “the pragmatic thing to do.” So says Sen. Lindsey Graham (R., S.C.) in remarks reported by the Wall Street Journal. And why is that? “It’s an image problem for the United States.” Actually, Gitmo is not a problem at all for the United States. In fact, it’s a boon. It’s an image problem only for leftists, and an irrational one. There is no good reason to give in to their lingering Bush derangement — especially at the cost of endangering the American people.
Senator Graham has evidently been huddling with White House chief of staff Rahm Emanuel, struggling to find a solution to this imaginary problem that Graham has managed to convince himself is a “practical problem.” And what makes it a practical problem? “Having a jail where presidents don’t want to send anyone,” says the senator.
But a presidential hissy fit is not a “practical problem.” We have 200 trained alien terrorists who want to kill Americans, and there are many more where they came from. We need a safe place to put them, a place where they cannot threaten anyone. We just happen to have this first-rate, Geneva Convention–compliant detention center that the American people have spent about a quarter-billion dollars to make ultra-safe yet Islamo-friendly. But Barack Obama doesn’t want to send anyone there, because its existence has George Soros’s shorts in a knot? How very practical.
When did it become “practical” to accommodate irrationality? Senator Graham has a name for this syndrome, too. It’s called “bipartisanship.” The “solution” to this imaginary problem, he claims, “has got to be bipartisan.” Near as I can tell, this means we must capitulate to the foolish for the sake of getting along with the senseless. “There’s no way the Democratic party is going to walk off a political cliff here without Republican support,” pronounced Graham, “nor should they.”
No, of course not. By all means, let’s join hands and walk off the cliff together. After all, if we were to stand our firm ground over here while the Obama Democrats teeter on the edge of the cliff, they just might see they’ve got no place else to go. They just might be overcome by a temporary flash self-preservation instinct and say, “Okay, let’s keep the bad guys in the safe prison.” We wouldn’t want to do that, right?
Standing your ground when you are walloping the other side is known as common sense. In most of the world, exhibiting such common sense in a debate over an important matter produces a winner and a loser. Among old Washington hands, though, this is regarded as “impractical,” and, instead, everyone walks off the cliff. Actually, I should say “among old Washington GOP hands.” When Democrats have the upper hand, they know how to close the deal. And when they’re getting their brains beat in at the edge of the cliff, they know to speed-dial Senator Graham.
The practical advantages of Guantanamo Bay are incontestable. Because it is a military base from which escape is impossible, it is totally secure. Because the base is on a remote island outside the U.S., it is not as vulnerable to terrorist attack as military bases inside our country — the likely choice for housing the detainees if Gitmo is shuttered. And because Gitmo is outside the sovereign territory of the United States, there remains a solid legal argument that prisoners held there do not have American constitutional rights, at least beyond the single one, habeas corpus, that the Supreme Court foolishly manufactured for them in the 2008 Boumediene case.
JIHADISTS TARGET U.S. MILITARY BASES
Being offshore is no small matter. Military bases are generally not just headquarters for military operations. In the United States, they are like small towns where members of our armed forces live with their families — which is to say, where military families live while the troops are deployed fighting to defend us. Why does that matter? Because countless times in the last 30 years, jihadists have targeted military bases for attack.
The most damning piece of evidence in my 1995 prosecution of Omar Abdel Rahman (the “Blind Sheikh”) was his instruction that, rather than bombing the United Nations, his underlings should target an American military base. Hezbollah, of course, famously bombed a Marine barracks in Beirut in 1983, killing 241 of our military personnel. In 1996 Iran-backed terrorists — probably in collusion with al-Qaeda — bombed the Khobar Towers facility in Saudi Arabia, killing 19 U.S. airmen based there. To reel off just a few recent domestic plots, six jihadists conspired in 2007 to, in their words, “kill as many soldiers as possible” at the Fort Dix army base in New Jersey. Two others were apprehended later that year near a Navy brig in Goose Creek, S.C., plotting to attack U.S. military vehicles with explosives. Last year, seven other terrorists were arrested planning an attack on the U.S. Marine Corps base in Quantico, Va. And let’s not forget the Fort Hood massacre only a few months back. That happened while we were still hearing the echoes of shots fired outside a Little Rock recruiting station by a gunman who murdered one soldier and gravely wounded another.
Here’s a brute fact that folks at the edge of the cliff don’t want to hear: Islamic law deems American service personnel to be legitimate targets of violent jihad. That is not a fringe position held only by al-Qaeda. It is a mainstream interpretation of sharia in the Muslim world. It is held, for example, by Sheikh Yusuf Qaradawi, the renowned inspiration of the Muslim Brotherhood — those nice fellas President Obama insisted on inviting to his sermon on the cliff in Cairo. And by the way, after Qaradawi issued a fatwa in 2004 urging attacks on American troops in Iraq, he was promptly seconded by authoritative scholars at al-Azhar University, the ancient seat of Sunni learning and the site chosen for said sermon.
If Gitmo is closed, the nearly 200 remaining jihadists now housed there would probably be transferred to military bases. Those bases would have to be hardened for the purpose, at a cost of untold millions of dollars — unjustifiable when it does not cost us an extra dime at this point to detain them at Gitmo. More significantly, such a base and its environs would become even more of a terror target than it is now. That would increase the danger and monumental inconvenience not only to the young men and women who are already bearing disproportionate burdens in this war, but also to the family members who accompany them from base to base, supporting their sacrifice for our country. What conceivable rationale can there be for that when we already have a perfectly suitable offshore detention center?
SUPERMAX PRISONS
But Senator Graham and the Obama people will tell us, maybe we don’t have to send the prisoners to military bases. We can hold them in supermax prisons. And how does that help? As I’ve argued before, even if the detainees can’t escape from the supermaxes, the prisons and the surrounding areas will still become terrorist targets. The Blind Sheikh has issued a fatwa commanding that Muslims make efforts to free imprisoned terrorists. The fact that these efforts won’t succeed hardly means jihadists won’t try, with lethal consequences.
Moreover, why should we be convinced that supermaxes will remain safe? Jennifer Daskal, a tireless advocate for the Gitmo detainees who was brought in by Attorney General Holder to be a top adviser on detainee policy, argues that supermax confinement is a human-rights violation. When she was at Human Rights Watch in 2006, she wrote a scathing memorandum to the U.N. Human Rights Committee, pleading that action be taken against the United States for our alleged violations of international humanitarian law and failures to abide by treaty obligations. (What better preparation for service in the Obama administration?) Among this country’s purported abuses, she claimed, was our operation of supermax prison facilities:
The United States continues to confine more than twenty thousand prisoners in the United States, nearly two percent of the prison population, housed in special super-maximum security facilities or units. Prisoners in these facilities typically spend their waking and sleeping hours locked in small, sometimes windowless, cells sealed with solid steel doors. A few times a week they are let out for showers and solitary exercise in a small, enclosed space. Supermax prisoners have almost no access to educational or recreational activities or other sources of mental stimulation and are usually handcuffed, shackled and escorted by two or three correctional officers every time they leave their cells. Assignment to supermax housing is usually for an indefinite period that may continue for years. . . . HRW urges the committee to question the United States about its treatment of detainees in Guantanamo Bay and its use of supermaximum prisons.Before there was a Gitmo, the Left was saying supermax prisons were the great blight on our reputation in the world, a position to which they will revert the second Gitmo’s doors are closed. If that’s not enough for you, see Daskal’s 2008 report on how Gitmo, which is almost universally regarded as more Islamo-friendly than the supermaxes, is “inhumane.”
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.
THEN THERE ARE THE JUDGES
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.
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