"If what Sen. Graham offered were to be followed, it would require an amendment to the Constitution, and I'm sure he understands that," said Fox News legal analyst Andrew Napolitano on Tuesday morning, after Sen. Lindsey Graham's controversial comments regarding Ahmad Khan Rahami.
Graham, a South Carolina Republican, said that Rahami, the New York and New Jersey bombing suspect, ought to be treated as an "enemy combatant" and questioned without a lawyer on the grounds that he may be linked to terrorist groups outside of the United States, the New York Times reported on Monday. Rahami was taken into custody after a shootout with police in Linden, New Jersey, that left him wounded. He is suspected in the Manhattan bombing that injured 29 people on Saturday night, and several other attacks in the New York area. According to the Los Angeles Times, Rahami is from Afghanistan and had traveled to both Afghanistan and Pakistan on several occasions for month-long trips since 2014.
In the Fox News segment on "America's Newsroom" with Martha MacCallum, Napolitano quickly glossed over Donald Trump's feelings about how the law ought to handle Rahami, and focused on Graham instead. "If you’re talking about Donald Trump’s arguments, I thought they were very effective because he never called for a suspension of due process," Napolitano said. "He just sort of mocked and criticized the sort of treatment this guy will get at the university hospital in Newark, but Senator Graham’s comments were particularly troublesome to me because he is a lawyer and a military judge, and he understands that stripping a person of due process is catastrophic and prohibited by the Constitution.
Napolitano clarified that the Fifth Amendment uses the word "person," not "citizen" in its wording. Rahami is in fact a U.S. citizen, "but even if he weren't he'd be entitled to due process," the former judge said. Graham's comments were "a political statement" and perhaps a "wish," Napolitano said. It appears the South Carolina senator, a staunch neoconservative on foreign policy, went too far this time around for even Fox to follow.