Sen. Lindsey Graham defended his position that New York terror suspect Ahmad Rahami should be placed in indefinite military custody as an "enemy combatant" rather than held as a civilian criminal suspect, rejecting Judge Andrew Napolitano's contention that stripping a person of due process is prohibited by the Constitution.
"There is no constitutional right for an American citizen to join enemy forces and commit war against your own nation." Graham, who is a member of the Senate Armed Services Committee and a military lawyer for 33 years, told Fox News's "America's Newsroom" program.
He cited two precedents by the Supreme Court, one involving an American citizen who helped Nazi saboteurs who landed on Long Island.
"That American citizen was captured and tried by military commission and sentenced by our military. The Supreme Court said [in 1942 that] if you join enemy forces then you can be treated as an enemy combatant."
He also cited a more recent case where U.S. forces captured an American citizen in Afghanistan fighting with the Taliban. The court said in 2004 that "if the citizen decides to associate himself with the enemy engaged in armed conflict against the United States, there is no bar holding them as enemy combatant."
Graham emphasized that these two precedents show that "if you're an enemy combatant, they can hold you indefinitely, gather intelligence and keep you off the battlefield and find out what you know about the potential next attack. That's the difference between the law of war and fighting a crime."
The senator said it won't happen in the case of Rahami, because "this is the weakest, most ineffective administration in fighting radical Islam . . . [this administration has] turned a war into a crime and we're losing a lot of intelligence and another 9/11 is coming because of that incompetence."
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