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Sen. Graham, You and What Army?

Laura W. Murphy,
Director, ACLU Washington Legislative Office
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March 10, 2010

Sen. Lindsey Graham (R-S.C.) is a leading congressional proponent of using the discredited and fatally-flawed military commissions system to try the alleged planners and conspirators of the terror attacks of September 11, 2001. Sen. Graham feels so strongly that he has introduced legislation to bar the Justice Department from using any funds to try these cases — the most important terrorism trials in our country’s history — in our regular federal courts.

It is worth noting that these are the same federal courts that have successfully handled over 300 terrorism cases since the attacks of 9/11. In contrast, there have only been three successful prosecutions in the military commissions. Our federal criminal justice system has proven time and again that it is far more capable of resolving these cases quickly and with more credibility than the military commissions. Why would we want to entrust a case as important as that of the 9/11 defendants to such a flawed and unproven system when we already have something that works very well? More importantly, why is such a position considered “tough on terror”?

It has been reported in numerous press stories in recent days that Sen. Graham has been reaching out to the White House to urge them to reverse the November decision of Attorney General Eric Holder to try the 9/11 cases in our federal courts. In return, Sen. Graham has promised to secure the support of other congressional Republicans for the administration’s plans to close the detention facility at Guantanamo Bay. Sounds like a pretty tempting offer huh? The problem? Congressional Republicans, while also joining the call to urge military commissions trials of the 9/11 defendants, remain steadfast in their opposition to closing Gitmo.

In an article in Congressional Quarterly last weekend, the Vice Chair of the Senate Select Committee on Intelligence, Christopher Bond (R-Mo.), stated —

I’m sure not going to horse-trade getting rid of one bad decision to let them make another bad decision.

Senate Republican Conference Chairman Lamar Alexander (R-Tenn.) added —

I hope that the Obama administration has finally recognized that military commissions are better equipped to handle the sensitive national security information that is part of terror trials. And I hope that next, they will realize that Guantánamo Bay is best equipped for the detention and prosecution of terrorists, not a prison inside the U.S.

An article in Tuesday’s New York Times by Charlie Savage and Scott Shane also points out that Sen. Graham is pretty much isolated and alone among congressional Republicans in being open to support a closure of Gitmo in return for trying the 9/11 cases before military commissions. Just last week, two of Sen. Graham’s closest friends and collaborators in the Senate, John McCain of Arizona and Joseph Lieberman of Connecticut, introduced legislation that would hand the government the power to indefinitely detain terrorism suspects, including U.S. citizens, without charge or trial.

If it isn’t already, it should be ever clearer to the Obama administration that something is pretty rotten about this proposed “compromise” deal being floated by Sen. Graham. It seems pretty one-sided from my perspective.

The administration could do far better by honoring its commitment to the rule of law and getting justice for the families of those who died in the terror attacks of September 11 by pursuing these cases in our federal criminal courts. Overruling the decision of Attorney General Holder will open the administration to attacks of flip-flopping on a critical issue of national security. They should also continue to strongly oppose Sen. Graham’s legislation, which would tie the president’s hands in resolving these cases.

They need only look to the Savage/Shane article for support from some unlikely allies from (of all places) the Bush administration. Former Deputy National Security Adviser for Combating Terrorism (2005-2009), Juan C. Zarate, is quoted as saying —

We shouldn’t inadvertently handcuff ourselves by taking this tool [federal criminal trials] completely out of our tool kit.

Tell President Obama to support Attorney General Holder’s decision to try the 9/11 defendants in federal criminal court. Anything less would be unjust, unlawful, and unwise.