Sen. Lindsey Graham blasted the Supreme Court's ruling Thursday on Guantanamo Bay detainees, calling it “dangerous and irresponsible.”
Graham, a military lawyer and a colonel in the Air Force Reserve, helped craft the 2006 Military Commissions Act and had predicted it would pass high court muster.
The Supreme Court ruled 5-4 that the 270 alleged terrorists being held at the U.S. military prison in Cuba have a constitutional right to challenge their detentions in federal courts.
“The laws and Constitution are designed to survive, and remain in force, in extraordinary times,” Justice Anthony Kennedy wrote for the majority.
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In a stinging dissent, Justice Antonin Scalia wrote: “The nation will live to regret what the court has done today.”
Graham responded with similar bitterness to the ruling that the constitutional writ of habeas corpus – guaranteeing defendants' claims of illegal imprisonment to be heard in court – applies to foreigners designated “enemy combatants” by the U.S.
“The court's ruling makes clear the legal rights given to al-Qaida members today should exceed those provided to the Nazis during World War II,” he said. “Our nation is at war. It's truly unfortunate the Supreme Court did not recognize and appreciate that fact.”
With Graham in the lead, Congress passed the Military Commissions Act in September 2006 after an earlier Supreme Court ruling that the Bush administration couldn't set up a new system for prosecuting alleged terrorists without congressional approval.
Thursday's Supreme Court decision is a major blow for Graham politically, eviscerating a law that he recently cited as one of the three proudest achievements of his first Senate term.
“To the extent that Lindsey Graham wanted to get the federal courts out of the process (of prosecuting detainees) altogether, this ruling is an absolute loss for him, and it's one that Congress can't go back around,” said Thomas Crocker, a University of South Carolina law professor.
Graham said he will explore the possibility of drafting a constitutional amendment “to blunt the effect of this decision.”
But any constitutional amendment would be unlikely to move in Congress during the waning months of a lame-duck presidency and at the height of a White House campaign.
Graham's talk of a constitutional amendment indicated how little room the Supreme Court has left him, along with Sen. John McCain – the presumptive Republican White House nominee – and Bush in their longstanding effort to create a separate trial system outside the federal courts for alleged terrorists.
Graham was in the courtroom in December when the Supreme Court held oral arguments in the case on which it ruled Thursday.
Graham accurately foresaw that Kennedy would be the crucial swing vote in the high court's ruling, but his repeated predictions that the court would uphold the law's denial of habeas rights proved off the mark.
“I firmly believe the Military Commissions Act, which applies the law of armed conflict to those held at Guantanamo Bay, will be upheld in its entirety by the Supreme Court when it is fully reviewed,” Graham said in April 2007.
Graham insisted that the law gave alleged terrorists at Guantanamo adequate protections, including the power to ask tribunals to review their detainment and to challenge convictions before the D.C. Court of Appeals in Washington.
With the Supreme Court now giving detainees full access to the federal courts, Graham warned that “some of the most liberal district courts in the country will have an opportunity to determine who is a threat to the United States.”