Lindsey Graham is clearly working on a deal with the Obama administration to close the detention facility at Guantanamo and move the terrorist detainees to the United States. It is a terrible idea in itself and Senator Graham cannot possibly secure any consideration from the Obama administration that would justify it.
Andrew McCarthy addresses the issues at NRO’s Corner here and here. in the second of these two posts, McCarthy writes:
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 purported goods that the closure of Guantanamo is to accomplish are purely mythical while the harms closure would bring are likely and predictable. McCarthy credits Senator Graham with good motives and honorable intentions, but disputes his judgment :
[I]f 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.
I quibble with McCarthy only on a point which highlights McCarthy’s magnanimity. I think that the closure of Guantanamo and the transfer of detainees to the United States is so stupid that it is hard for me to credit Senator Graham’s motives. We can only hope that a sufficient number of Graham’s colleagues decline to go along for the ride that it won’t happen.