South Carolina Sen. Lindsey Graham is not pleased that the Obama administration decided to prosecute Boston Marathon bombing suspect Dzhokhar Tsarnaev in civilian court, even though it would probably be illegal and counterproductive to treat the U.S. citizen as an enemy combatant.
The senator, a lawyer and reserve Air Force JAG officer himself, called for stripping Tsarnaev of his constitutional rights to due process even before the 19-year-old was captured Friday evening. "The accused perpetrators of these acts were not common criminals attempting to profit from a criminal enterprise," Graham said on Twitter on Friday. "Under the Law of War we can hold #Boston suspect as a potential enemy combatant not entitled to Miranda warnings or appointment of counsel."
But Graham seems to hold the opposite view when it comes to different constitutional rights for those accused or suspected of terrorism. At a press conference he set up this afternoon to slam the White House on the enemy combatant decision, he was asked about legislation that would stop people on the Terrorist Watch List from buying guns. Here's his response:
GRAHAM: "I think, anyone who's on the Terrorist Watch List should not lose their Second Amendment right without the ability to challenge that determination. I think, Senator Kennedy was on the Terrorist Watch List. There've been people come up on the watch list. I did not want to make that a -- the basis to take someone's Second Amendment rights away. What I would suggest, is that if you come up on the Terrorist Watch List, you have the ability to say, "No, I'm not a terrorist." And that would be the proper way to do that.
Currently, the federal government can only prevent a firearm sale for 11 reasons -- suspected ties to terrorism, or even suspicion that a gun would be used in an attack, are not one of them. Between February 2004 and December 2010, 1,453 people on the terror watch list tried to buy a gun and over 90 percent were not stopped.
Democratic Sen. Frank Lautenberg's bill to close what he calls the "terror gap" would not automatically strip anyone's Second Amendment rights, as Graham suggests. It would, in fact, allow "any individual whose firearms or explosives license application has been denied to bring legal action to challenge the denial." In Graham's world, Tsarnaev would have no such clear recourse to challenge his status as an enemy combatant.
The Terrorist Watch List is imperfect and there are plenty of legitimate civil libertarian arguments to be made against restricting firearms access to people on the list, since people on it haven't been convicted of any crimes and they're not even allowed to know whether they're on the list. For instance, Ted Kennedy was, indeed, briefly and erroneously placed on the no fly list in 2004, though that's a different list. But Graham's opposition to limiting the Second Amendment rights of people suspected of being terrorists is wholly inconsistent with his support for completely stripping away their Fifth and Sixth Amendment rights to a fair trial in court.
Contrast his opposition to closing the "terror gap" with this, from a 2011 New York Times article:
Citizens who are suspected of joining Al Qaeda are opening themselves up “to imprisonment and death,” Mr. Graham said, adding, “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’ ”
So the only right that Graham seems interested in preserving for people suspected of being affiliated with al-Qaida is their right to purchase firearms.
The NRA also opposes closing the "terror gap," fearing that it would be used to strip the Second Amendment rights of "Americans who disagree with the policies of the Obama Administration," "who believe in federalism," or "who post their political opinions on the Internet."