Lindsey Graham’s Grand Bargain

By William Fisher

The prominent scholar who believes that Khalid Sheikh Mohammed (KSM), self-styled mastermind of the 9/11 terror attacks, should receive no trial is nonetheless advising Senator Lindsey Graham on a proposal to the White House to create “an overarching detainee framework” including a new approach to habeas corpus petitions and indefinite detention of “too dangerous to free” detainees without trial.

Benjamin Wittes, a senior fellow and research director in public law at the
Brookings Institution was the co-author last week of an oped published in the Washington Post proposing that a trial for KSM would be a waste of time and money. Wittes and his co-author, Jack Goldsmith, a former George W. Bush assistant attorney general who now teaches law at Harvard, called the trial of KSM “dispensable” and proffered that “the politically draining fight about civilian vs. military trials is not worth the costs.”

The Washington Post is reporting that Sen. Graham, a conservative Republican from South Carolina, has submitted draft legislation to the White House. The proposal was reportedly triggered by Graham’s efforts to reach a deal with the Obama Administration: Scrap the announced trial of KSM in the civilian justice system in exchange for the senator using his influence among congressional Republicans to drop their opposition to the closing of the U.S. navy prison at Guantanamo Bay, Cuba.

During his first week in office, President Obama announced that Guantanamo would be closed by January 1, 2010, but this deadline was missed. One of the main reasons was the unwillingness of countries – including the U.S. – to accept detainees even though they were no longer deemed to be a danger to national, but could not be returned to their own countries for fear of their torture and abuse. There are still some 210 prisoners held at the Caribbean base.

Graham favors the establishment of a “national security court” to try detainees, but this idea is opposed by Pres. Obama. Another Graham idea reportedly involves creating standard procedures for addressing detainees' petitions for habeas corpus. This would give the government the responsibility of justifying continued detention – decisions now made by individual Federal judges.

Graham has been criticized by both Conservatives and Liberals for attempting to strike a deal with Obama. But, facing intense criticism from Congress, the White House is reportedly eager to demonstrate its commitment to a bipartisan solution.

The American Civil Liberties Union believes that “detaining individuals indefinitely without charging them with a crime or providing them a meaningful opportunity to challenge their detention is un-American and violates our commitment to due process and the rule of law.” In a statement, it said, “Trials in federal court offer the swiftest, surest means to provide justice, and the results would be accepted both domestically and abroad.”

Since 9/11, there have been over 300 successfully completed terrorism-related trials in federal courts. Military Commissions have completed only three.

However, Senator Graham is urging the Administration to use Military Commissions to try Guantanamo detainees, thus pushing Attorney General Eric Holder to reverse his recent decision to try KSM and five other “high profile” suspects in Federal Court.

But human rights groups are pushing back against that idea. The American Civil Liberties Union (ACLU) believes that Military Commissions, despite some improvements through legislation, remain unworkable and should be shut down for good.

The organization’s position is being echoed by other civil libertarians. Daphne Eviatar, senior counsel with Human Rights First, told IPS it would be a mistake to try these defendants in a “new, untested military commission system that raises unresolved legal questions and lacks international legitimacy. The right answer is to try them in legitimate, time-tested federal courts with experience trying and convicting hundreds of international terrorists over the past eight years, not simply to take the cowardly way out via indefinite detention.”

And David Frakt, a professor at the Western State University College of Law and a lieutenant colonel in the U.S. Air Force Reserve JAG Corps, told IPS, “Military commissions are supposed to be a forum to try offences under the law of war, but several non-war crimes that don't belong in military commissions are also authorized to be tried in military commissions, including material support of terrorism, conspiracy, and terrorism. The vast majority of detainees to be charged so far have been charged with these non-war crimes, which more properly belong in federal court.”

He added, “The rules of evidence allowing coerced evidence to be admitted have been improved so that most coerced confessions will be excluded, but even if the statements themselves may not be admissible, evidence derived from them is still admissible.”

Frakt is widely known for his defense of former Guantanamo detainee Mohammed Jawad, an alleged "unlawful enemy combatant" who previously faced charges in the U.S. military commissions for events alleged to have taken place when he was a minor in December 2002. Jawad was exonerated and returned home to Afghanistan in August 2009.