Thursday, July 06, 2006


Sen. Graham’s Strategy To Restore Bush’s Detainee Policy Is Unconstitutional

In an interview with the National Review, Sen. Lindsey Graham strongly objected to the Supreme Court’s ruling in Hamdan v. Rumsfeld that the Geneva Conventions applied to enemy combatants. Graham suggested that Congress should reverse the Supreme Court’s interpretation:

We’ve got to put a fence around this decision by the Court to grant Common Article Three of the Geneva Convention rights to terrorists. In 2002, Bush said that enemy combatant terrorists will be treated humanely within the spirit of the Convention but not given Convention status. I think he was right. You don’t want to erode the Convention.

What Graham is sugesting is unconstitutional. The Supreme Court has the final say on how treaties should be interpreted. The Court explained in another case, Sanchez-Llamas v. Oregon, issued the same day has Hamdan:

Under our Constitution, “[t]he judicial Power of theUnited States” is “vested in one supreme Court, and insuch inferior Courts as the Congress may from time to time ordain and establish.” Art. III, §1. That “judicialPower . . . extend[s] to . . . Treaties.” Id., §2. And, as Chief Justice Marshall famously explained, that judicial power includes the duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law “is emphatically the province and duty of the judicial department,” headed by the “one supreme Court” established by the Constitution.

It’s difficult for Graham and other loyal supporters of the Bush administration to accept that their legal approach to combating terrorism is dysfunctional. The Hamdan decision spelled this out. And it’s not a problem they can rubber stamp their way out of.

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