Given Senator Lindsey Graham's military background, one would think he would push hard for the trial and conviction of all terrorists. After all, U.S. federal courts have successfully tried more than 195 terrorists since the terrorist attacks of September 11. But for the past five years, Graham has instead repeatedly obstructed the effort to try and convict the 9/11 detainees.
In 2005, the South Carolina Senator helped push through the Detainee Treatment Act, which tried to strip federal courts of jurisdiction over all Guantanamo detainees' legal challenges to their detention. In Hamdan v. Rumsfeld, the Supreme Court ruled that the law could only apply to future detainee claims, not those already filed. It also ruled that the Bush administration's military commissions were unconstitutional.
So Graham helped broker a deal with the White House to pass the Military Commissions Act of 2006, promising that would solve the detainee problem. That law tried once again to deny habeas rights retroactively, and created a new set of Congressionally-authorized military commissions to try suspected terrorists.
Back then, dozens of former military leaders, Judge Advocates General and civilian legal experts objected that the Military Commissions Act of 2006 was a bad idea. Among other things, it would violate Common Article 3 of the Geneva Conventions and the United States Constitution.
With Graham's urging, Congress passed the law anyway.
Since then, the military commissions have convicted exactly three terrorists - one of whom did not even put up a defense. The other two have already been set free.
In June 2008, in Boumediene v. Bush, the Supreme Court ruled that the Military Commissions Act of 2006 was unconstitutional for limiting detainees' access to judicial review; the Supreme Court made clear that Guantanamo detainees have the right to challenge their detention in regular civilian courts.
That sharp rebuke from the Supreme Court has not stopped Lindsey Graham from now attempting a third time to broker yet another deal to deny detainees the right to civilian court review, claiming once again that he can solve the government's Guantanamo detainee dilemma.
Given his track record, does Graham really have any credibility on this issue?
This time, Graham is trying to push through Congress a bill that would deny the government the funding necessary to try the 9/11 defendants in a civilian federal court, and require their trial by military commission.
"I believe it is inappropriate to give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," said Senator Lindsey Graham. "It has never been done in the history of warfare and now is not the time to start."
Actually, foreigners have always been given the same constitutional rights as U.S. citizens in criminal proceedings. And military detainees have always had the right to challenge their detention in civilian courts.
Regardless of whether the law is constitutional, as a matter of national security former military leaders say that Graham's proposal is a very bad idea.
"It's sad and a mistake that we should politicize these decisions and get Congress involved in what is clearly the constitutional responsibility of the president," said Retired Admiral John Hutson at a recent press conference.
Retired General Harry Soyster called on President Obama to stand firm in "administering the great justice system of this country," adding that he should "not give into political pushes that would push us clearly in a wrong path with long-term consequences."
Retired Major General William Nash said pushing the 9/11 trials into military commissions would "give aid to our enemies" and "lessen our reputation with our allies."
Even General Colin Powell opposes the idea: "The suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions," Powell said recently on CBS's Face the Nation.
Yet Graham is now also making a far more sweeping attempt to undermine suspected terrorists' right to a civilian trial. Senator Graham is reportedly trying to broker a deal with the White House and his Senate colleagues to get them to pass a new law authorizing indefinite detention without trial of terror suspects on U.S. soil. In return, Graham claims, he will deliver Republican support for the closure of the Guantanamo Bay prison camp.
Graham doesn't seem to have much support for his proposal from either side of the aisle, with objections on both legal and practical grounds.
"There is a law already on indefinite detention," Senate Armed Services Chairman Carl Levin (D-MI), told Congressional Quarterly. "It's called the Geneva Convention."
Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said "I don't think there's any need for a new statute," adding that it "confuses the issue to suggest that we don't have that authority now."
That hasn't stopped Senator Graham from promising the White House once again something he appears wholly unable to deliver.
The question is whether anyone will fall for it this time around.
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