Lawfare v. Gitmo

By contrast, if 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.