Kristol: McCain And Graham Plan To Introduce Legislation Undermining Supreme Court Decision On Guantanamo»

Last week, the Supreme Court ruled that Guantanamo Bay detainees have the right to challenge their
detention in civilian courts. Sens. John McCain (R-AZ) and Lindsey
Graham (R-SC) wasted no time in publicly blasting the decision, saying
they were “disappointed” in “one of the worst decisions in the history of this country.”
This ruling will inevitably lead to a “flood of new litigation”
challenging the Bush administration’s right to hold these detainees,
only one of whom has received a verdict. Detainees will then finally
get a decision as to their status.
Today on Fox News Sunday, Weekly Standard editor Bill Kristol
revealed that “very soon” — likely as early as next week — McCain and
Graham will be introducing legislation to undermine the Supreme Court
decision by setting up a “national security court”:

And I think you will see Senator Graham,
accompanied by Senator McCain, come to the floor of the Senate very
soon, like next week, and say, We cannot let chaos obtain here. We
can’t let 200 different federal district judges on their own whim call
this CIA agent here, say, ‘I don’t believe this soldier here who said
this guy was doing this,’ you have to release someone,’ or, ‘Let’s
build up — let’s compromise sources and methods with a bunch of trials.
I mean, it’s ridiculous.

Watch it:

A national security court would envision a scenario “in which sitting federal judges would preside over proceedings in which prosecutors would make the case that a person should be detained.” But as Michael Hoffman and Ken Gude note in a paper for the Center for American Progress, this scenario is problematic and underestimates the U.S. criminal justice system:

Adopting a national security court system would
send the United States down another unproven path prone to repeat the
same mistakes. It would not further justice or American
legitimacy. Rather, it would risk creating American courts that more
resemble the tribunals of dictators than those of democracies. And that
would be a strategic victory for Al Qaeda, not for Americans. […]
The criminal justice system, coupled with standard military
trials when necessary, has and can further law enforcement,
intelligence, and prevention efforts without undermining our
fundamental liberties or our long-term efforts to combat terrorism. It is time to let it fully do that crucial work.

As ThinkProgress reported on Friday, at one time, McCain and Graham
advocated a solution similar to the Supreme Court ruling. In 2003, they
called on then-Defense Secretary Rumsfeld to “formally treat and
process the detainees as war criminals or to return them to their countries for appropriate judicial action.” Clearly, things change when you’re running for a third Bush term.
Transcript:

KRISTOL: Then what does the federal judge do? Does he
have an evidentiary hearing? Does he judge whether the CIA’s
intelligence was correct, that their informant in Karachi was telling
the truth, that the…
WALLACE: Yes. I mean, I think it’s clear that he does have a hearing.
KRISTOL: Does he call the CIA agent in, the CIA agent comes into court and says, I’ve got a…
WALLACE: Not the trial as to whether or not the person’s guilty, but whether or not they have right to detain him. […]
KRISTOL: This is totally uncharted waters. It’s utterly
unmanageable. And I think what it means is Congress has to step in now
and specify,
OK, if the court’s going to make us do this, we need to set up a
system of a national security court that can handle these trials.
And this has been proposed by Andrew McCarthy, the former federal
prosecutor who tried the blind sheik in New York and has a very good
book out on the problems of trying to do this through the federal legal
system.
Anyway, but you could do it. You could have a national security court. Senator Lindsey Graham is working on this.
And I think you will see Senator Graham, accompanied by Senator
McCain, come to the floor of the Senate very soon, like next week, and
say, We cannot let chaos obtain here. We can’t let 200 different
federal district judges on their own whim call this CIA agent here,
say, ‘I don’t believe this soldier here who said this guy was doing
this,’ you have to release someone,’ or, ‘Let’s build up — let’s
compromise sources and methods with a bunch of trials. I mean, it’s
ridiculous.
So Congress has to act. Senator Graham and Senator McCain are going
to insist on action. It will be interesting to see what Senator Obama’s
response is if the serious legislative proposal is introduced to set up
a way of doing this consistent with the Supreme Court decision.
WILLIAMS: Well, I’m glad to hear you say that, because I think what
you’re saying is you’re agreeing basically with the 5-4 decision,
because you’re saying there needs to be a structure, that you can’t
simply hold people for an undetermined length.
And remember, this Guantanamo has been open six years — six years
without resolving this. And they have only had plans to try — I think
it’s 80 of the 270, and only 19 currently face any kind of court, have
the opportunity to speak out and say, You know what? It wasn’t me that
did it, or, I was caught in the wrong way.
And the military courts have said that occasionally they have swept
up the wrong people. In fact, the named litigant in this case was
someone who was taken from Bosnia, not from Iraq, not from Afghanistan.
Bosnia. So he’s trying to make the case that he was in the wrong place
at the wrong time.
So when you say, OK, let’s have a national intelligence court,
that’s fine with me. But it seems to me that you are confirming —
you’re not agreeing with Brit Hume. You’re saying, in fact, we need a
structure that gives people the opportunity to come before the courts
and say that I have been detained illegally and wrongfully.
And that’s a good thing. That’s protecting America’s rights and liberties.