Buried in a New York Times story on the Obama administration’s failure to close Guantanamo Bay a few weeks ago was a link to Sen. Lindsey Graham’s (R-S.C.) much-discussed and much-anticipated draft legislation. For months and months, we’ve read story after story about Sen. Graham’s negotiations on habeas corpus and detention policy for “enemy combatants” with the White House, but this was the first time the draft policy was made public.
And guess what? We’ve seen it before.
Sen. Graham’s proposal looks incredibly similar to legislation he introduced in reaction to the Supreme Court decision in Boumediene v. Bush that then-Attorney General Michael Mukasey proposed in 2008. Both Graham’s current proposal — which has not been formally introduced — and Mukasey’s former proposal include a new declaration of war, granting sweeping powers to the executive to declare anyone a terrorist and hold the person forever — without ever charging anyone with a crime.
The good news is, this didn’t work in 2008, and Congress would do well to remember that and once again refuse any new declaration of war. Americans are already uneasy being in two wars with ambiguous end-dates. Redeclaring our country’s intent to flout the rule of law by expanding the executive branch’s power will only cause greater anxiety.