Lindsey Graham's Tribunal Tantrum

Lindsey Graham of South Carolina is once again in the press, playing his oft-reprised role as the Republican-Senator-who-disagrees- with-his-party.

This time, the script has called for abandoning both common sense and certain constitutional principles.

As soon as President Bush asked Congress to enact legislation codifying military tribunals to try suspected al Qaeda terrorists and to permit warrantless eavesdropping on suspected al Qaeda communications in and out of the U.S., Graham started objecting.

“No one, Democrat or Republican, wants to impede the ability of our national security apparatus to find what the enemy is up to,” Graham told the Birmingham (Ala.) News, “but no American should be monitored by their government believing they’re part of an enemy plot without some judge checking the government’s homework.”

To defend his professed principle, Graham is co-sponsoring a bill with Republican Sen. Mike DeWine of Ohio that would allow the President to monitor Americans, for national security reasons, without a warrant—for 45 days. After that, the President would need a judge’s permission.

Why an arbitrary 45 days?

If a President is bent on wiretapping Americans for personal or political reasons, Graham’s 45-day window gives him plenty of opportunity.

On the other hand, as the constitutional officer charged with defending the nation against attack, either the President has the constitutional authority to eavesdrop on suspected enemies without a warrant, or he doesn’t.

Despite a recent district court ruling to the contrary, every appeals court that has ever ruled on the issue has determined the President does have this power. In 1980, for example, the U.S. Court of Appeals for the 4th Circuit determined in U.S. vs. Truong that “the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.” In 2002, the U.S. Foreign Intelligence Surveillance Court of Review, reaffirmed this ruling. “We take it for granted that the President does have that authority,” it said.

Gen. Michael Hayden, the CIA director, has indicated that the al Qaeda surveillance program has yielded intelligence about terrorists that could not have been gotten with a warrant. If that is so, Graham’s 45-day warrant deadline could cause us to lose intelligence about al Qaeda.

Equally cockeyed is Graham’s objection to the President’s proposal for military tribunals.

The President’s tribunals would grant a suspected terrorist’s lawyer (who would have a security clearance) access to any classified information used as evidence. The lawyer could not pass this information on to the suspected terrorist, however.

“That’s the killer,” Graham told McClatchy newspapers. “I don’t feel good about telling someone—no matter who they are—‘We’re going to execute you next week, but I’m sorry, we can’t tell you why.’”

Graham’s position brings to mind the old joke: “I could tell you what I know, but then I would have to kill you.”

He apparently believes the U.S. can give an alleged al Qaeda killer the classified information collected against him without endangering the sources who collected it for us. Leave aside what sort of communications a detained or convicted terrorist may or may not be able to manage from prison. If the military tribunals are indeed fair, they will likely acquit some accused terrorists—maybe even some guilty ones.

Wonder what that will do to inspire sources in the Islamic world to squeal on al Qaeda?

It ought to be self-evident that our Bill of Rights was not intended to protect unlawful combatants who commit immoral acts of war against us. Article 1, Section 8, Clause 10, of the Constitution, which gives Congress the authority “to define and punish … offenses against the law of nations," has always been understood to authorize Congress to create military tribunals where unlawful combatants are tried outside the protections of the 5th and 6th Amendments, which govern civilian criminal trials.

The Supreme Court made this clear in Ex Parte Quirin, the 1942 decision that upheld the use of a military tribunal to try a group of Nazi saboteurs who had landed on U.S. soil.
“We conclude,” said the Court, “that the 5th and 6th Amendments did not restrict whatever authority was conferred by the Constitution to try offenses against the law of war by military commission, and that petitioners, charged with such an offense not required to be tried by jury at common law, were lawfully placed on trial by the Commission without a jury.”

The only thing that should matter to Lindsey Graham and other members of Congress is not whether the government presents to the accused terrorist all the relevant evidence, but whether it presents that evidence to the honorable men and women who must sit in judgment of the accused.