HH: Now for a reaction to the Supreme Court’s astonishing decision, I’m joined by the Republican Whip in the United States Senate, himself a fine Constitutional lawyer, a member of the Judiciary Committee, Senator Jon Kyl. Senator Kyl, always a pleasure, thanks for joining us.
JK: Thank you, Hugh.
HH: Your reaction to the Gitmo case today?
JK: I’m stunned. And in one sense, I mean, I knew there were four justices who were prepared to do this, I can’t believe Justice Kennedy did it, and I can’t…it’s just a stunningly bad decision with enormously negative consequences.
HH: Now Justice Scalia wrote this, “America is at war with radical Islamists. The enmity began by killing Americans and allies abroad, 241 at the Marine barracks in Lebanon.” He goes through and walks through all the attacks on us. He concludes, “Our armed forces are now in the field against the enemy in Afghanistan and Iraq. Last week, thirteen of our countrymen in arms were killed. In a game of bait and switch that today’s opinion plays upon the nation’s commander-in-chief, will make the war harder on us. It will almost certainly cause more Americans to be killed.” Do you agree, Senator Kyl?
JK :Absolutely correct. And you know, the irony here is the Court has given us a little bit, us meaning Congress, some direction. They basically challenged us to write the procedures for dealing with these detainees. We did. And then a case came along, and they said we don’t think you have it exactly right. So we went back and we made revisions. And they are, by the description of the dissenters, the most generous set of procedural protections ever afforded aliens detained by any country as enemy combatants. And yet, the Court, after inviting us to develop these procedures, and they are the most generous ever, anywhere, now strikes them down as inadequate. And as Justice Roberts said, it’s really hard to figure out why they’re inadequate based upon the test that the majority created.
HH: Now Senator Kyl, it leaves us in limbo again. It doesn’t release any terrorists, though I think we’re coming close to the day that a district court somewhere tells a killer he gets to go free from Gitmo, I don’t know where, to South Florida. But what do you do now?
JK: Well, let me just quote a little bit here from Justice Roberts. He says, “So who has won? Not the detainees. The Court’s analysis leaves them with only the prospect of further litigation to determine the content of their new habeas right, followed by further litigation to resolve their particular cases, followed by further litigation before the D.C. Circuit, where they could have started, had they invoked the DTA procedure. That’s the procedure that Congress created. This thing is now, I mean, there aren’t any guidelines, there’s no decision by the Court that clearly spells out what needs to be done here, so it’s basically a free-for-all. Every one of these people that are detained will file a habeas corpus writ. A federal district judge is going to have to resolve them. He’ll get all kinds of different confliction decisions. The questions of what kind of evidence is permissible, and looking at classified, and the standard for review, and what kind of new evidence, if any, can be educed on review, and all of these things are brand new because these people have never had habeas rights before. So you’re literally making the law as you go along. And nobody can even begin to predict where it’s all going to end up.
HH: Now I shudder to think if your colleague, Senator Leahy, gets to draft the terrorist bill of rights, but it does seem to me that Congress is going to have to act here, aren’t they?
JK: Congress did act.
HH: That’s true.
JK: We already acted.
HH: You guessed once, and you guessed wrong.
JK: Well, I mean, so then we redid it, because they pretty well gave us a map as to where they wanted us to go, so we redid it, and now they’ve said no, that’s still not good enough. They haven’t exactly told us why it isn’t good enough, but they have now said that there’s a habeas right, which means that even if we did try to go back and redo it, it would be highly constrained by the law of habeas corpus as a Constitutional right. And therefore, I’m not sure there’s any point in Congress going back.
HH: So this is all going to be judge-made law now.
JK: Yeah, exactly.
HH: Now it’s being reported as a rebuke to the administration. Frankly, I don’t see that, because you had 65 Senators and a bipartisan majority in the House passed this bill that has been struck down today. It’s an Article III rebuke to Article I & II branches, is it not?
JK: Exactly. It’s a power grab by the Courts to get into something that they’ve never been in before. I mean, you’ve got the FISA Court, the Foreign Intelligence Surveillance Act Court, ironically, which has made the point that federal district judges are not at all competent to be involved in highly classified matters, and one might also say making decisions that heretofore been made by the military as to who should be held as a dangerous POW or enemy combatant. This is not what district judges are trained to do. They don’t have the background, the insight, and yet, these cases are now going to be before them, just as any common criminal case.
HH: Senator Kyl, the law of unintended consequences, I think in the future, we simply will not being unlawful combatants anywhere near the United States. We’ll keep them in the places where they’re captured, or we’ll turn them over to perhaps the kind of governments they themselves don’t want to be turned over to.
JK: That’s right. This is the irony. This is the irony. We have the cleanest, most carefully run facility in the world at Gitmo, and these people are treated very well there. Well, Gitmo, as a result of this, you might as well not have Gitmo. You might as well, if you’re going to try somebody, charge them with a crime and try them, keep them at Fort Leavenworth. Otherwise, don’t bring them anywhere near U.S. territory. The Court’s opinion is very unclear as to whether this right would extend beyond the confines of a place like Gitmo. The implication is that it would not, but the Court doesn’t really answer that. So you’re right, you leave them in a place like Afghanistan, or you ship them off to a place like, well, I won’t mention the country, where they’re likely to be pretty strongly mistreated.
HH: And that is, to me, one of the amazing tragedies of today, is that you try and do this the right way, and the Supreme Court out of…you know, we can’t get into motives. I don’t know the justices, well, I don’t know any of the justices in the majority, let me put it that way, and I can’t get into their motives. But it seems to me that the pressures of legal elites and the circles that they run in, has immunized them from the realities of this war, Senator Kyl. What do you say?
JK: Bingo. Bingo. They like to go to cocktail parties, and have people fawn all over them, and say gee, you’re really a smart guy. And I hate to say that, because I’m a member of the Bar. And one of the things we always learned was don’t criticize decisions of the Court. We’re all supposed to defend the members of the judiciary. And I have assiduously attempted to do that over the years. I can’t do this with this decision. This is not just a very, very bad decision. It’s a horrible decision with respect to the consequences for the American people. You can’t defend the judiciary about this, and I…the most benign motive that I can attribute is a motive to be liked by the elites, and therefore, to reach this conclusion. Now there are a couple of the other justices in the majority who I suspect legitimately have a very liberal point of view, and think that this is the right way to go. I don’t think that’s the case with all of them.
HH: Last question, Senator Kyl, obviously…I think this underscores the importance of the presidential election, because I just don’t know what’s going to happen to the conduct of this war if we turn…obviously the third branch is in the control of liberal elites, the Congress is in control of liberal elites. I don’t know how you win this war if you turn the presidency over to Barack Obama.
JK: I don’t either. I’m just…I mean, obviously today, I am stunned, and I know people said well, once they took the cert petition, that the result was foreordained. I still couldn’t believe that they would actually do this.
HH: Neither could I. Jon Kyl of Arizona, keep fighting the good fight. Thanks for your time.
End of interview.