Questioning McCain and Graham on Habeas Corpus and FISA



John McCain was outside ABC studios Sunday morning, September 17, 2006.

Sam Husseini: People have also criticized the Warner plan. For example, The Center for Constitutional Rights says that it, as well as the Bush plan, have provisions that would "prevent anyone taken into US custody anywhere in the world, past or present, innocent or not, from ever having their case heard in a court of law." Are you familiar with that provision of the Warner legislation?

Sen. John McCain: No, I'm not, I'm not familiar with that. I'm not familiar with that.

Sen. Lindsey Graham was outside CBS studios on Sunday, September 17, 2006.

Sam Husseini: There's been some speculation that the White House is going to try to tie the, addressing the FISA statute, to this type of legislation. What's your view on the FISA statute's being basically done away with -- I mean -- Wouldn't that be a case -- I'm sorry, just the substance of it, if you could address the substance as well as that speculation. Wouldn't that be basically rewriting the law to make legal the President's violations of the FISA statutes?

Sen. Lindsey Graham: The war on terror presents unique legal challenges, and we need to look at all of our laws to make sure they give us the tools we need to be safe. But in doing that, in redefining the law, my biggest fear is that we're going to redefine America. That if you have the torture statute defined in an absurd way, it no longer means anything. That if you have a trial where someone can go to jail and never see the evidence against them, you've redefined America, not protected the country against terrorism.

When it comes to the FISA statute, I think it has a role in the war on terror. I do not want to destroy the FISA statute. What does the FISA statute do that's necessary? It requires the government to get a warrant if it, the government believes an American is collaborating with the enemy. I want to follow the enemy and listen to the enemy, and if the enemy is talking to an American, I want to know what they are talking about. But if we believe that this American is helping the enemy, then I think we should have to get a warrant, because if we're wrong, we've destroyed people's personal freedom. If you can't and won't make it easy to get a warrant in terms of time periods, we're not going to have a three day, get a warrant or let 'em go. We'll have a statute that allows the government to pursue the evidence and go to court and get a warrant on reasonable terms.

But the day you say that an American suspected of collaborating with the nation's enemies can be followed without a warrant, then we've lost more than we've gained. It is not a burden on this government to get a warrant if they suspect an American of collaborating with the enemy. There is no requirement to get a warrant to surveil the enemy in a time of war.There must be a requirement to check the government when the government believes someone is committing treason.

Husseini: The Center for Constitutional Rights, on the facts, put out a statement criticizing both the Bush proposal as well as the Warner proposal. They said, "If either bill passes as currently written, it will prevent anyone taken into US custody, anywhere in the world, past, present, or future, innocent or not, from ever having their case heard in a court of law." Is that your understanding?

Graham: That is a complete false statement. That is a representation of the bill just as inaccurate as saying that we put the CIA at risk. In the legislation, there is a procedure for every detainee at Guantanamo Bay held as an enemy combatant, to appeal that decision to the US Circuit Court of Appeals of the District of Columbia. Every person tried as a war criminal will now be able to appeal their conviction if there is one through our federal court system. We have created legal rights of review for every person at Guantanamo Bay that is historic in terms of law of armed conflict. So, those who say that people in Guantanamo Bay are being held with legal review, or being tried without legal review, are flat wrong.

Husseini: Does this apply to anybody detained, I mean can't they detain people --

Graham: Anybody detained. Every person held down there as a enemy combatant,

Husseini: Anywhere. I'm not just saying Guantanamo.

Graham: Guantemo Bay. They're all held at Guan -- In Iraq, there are people held in Iraq that have their own procedures to appeal their status. Everywhere we hold someone there are rules in place to appeal their status as enemy combatants. People held in Afghanistan and Iraq are turned over to those countries. The people we have at Guantanamo Bay, we don't have a country to turn them over to, so we're taking care of them.

[originally published at husseini.org on Sep. 17, 2006]