Obama works with Graham on new detainee policy

McClatchy NewspapersMay 22, 2009 

WASHINGTON _ Sen. Lindsey Graham, an Air Force Reserve lawyer, wasn't among the military lawyers summoned to hear President Barack Obama's address on closing the Guantanamo prison and reforming U.S. detainee policies.

Obama, though, made sure that his audience remembered the South Carolina senator who's served on active duty in Iraq and Afghanistan.

Four months after his executive order pledging to shutter the U.S. military prison in Cuba within a year, Obama used Graham's authority to help make his case for doing so.

Obama responded to congressional Republicans who have pushed a frightful-sounding bill -- the Keep Terrorists Out of America Act -- to stir alarm over the prospect of Guantanamo's 250 detainees being moved to the United States.

"Nobody has ever escaped from one of our federal 'supermax' prisons, which hold hundreds of convicted terrorists," Obama said Thursday as he stood in front of the Constitution in the great hall of the National Archives.

"As Republican Lindsay Graham said, the idea that we cannot find a place to securely house 250-plus detainees within the United States is not rational," Obama said.

Obama failed to mention that Graham had joined most other senators in a resounding 90-6 vote rejecting his request for $80 million to close the Guantanamo prison.

Graham wasn't displeased that he was the only member of Congress that Obama had cited by name in his speech, but the senator offered him some advice.

"I appreciate him listening to what I have to say, but listen to me in totality, not partially," Graham said. " That vote was a strong statement to the president that we are not going to think about bringing these prisoners back to the United States or closing Guantanamo until we are given a plan that is fair and that we can sell to our constituents."

Graham spent years both defending and jousting with fellow Republican President George W. Bush over how the United States should interrogate, hold and prosecute accused terrorists.

Graham helped craft the 2006 Military Commissions Act that Congress passed to set up a system for trying some of the detainees, after the Supreme Court struck down the tribunals Bush had created without input from lawmakers.

In major amendments to the Detainee Treatment Act later that year, Graham, along with Sens. John McCain of Arizona and John Warner of Virginia, compelled Bush to comply with the Geneva Conventions.

With Graham in the lead, the three Republican senators also forced a compromise allowing detainees to see evidence used against them.

That agreement upheld the Confrontation Clause of the Constitution's Sixth Amendment, which says that "in all criminal prosecutions ... the accused shall enjoy the right to be confronted with the witnesses against him."

Yet, Graham defended Bush's refusal to grant the terror suspects a separate constitutional protection -- the Habeas corpus right to appeal one's detention in court.

Despite Graham's confident prediction that it would pass high court muster, the Supreme Court struck down that limit last year.

Now, Graham is helping a Democratic president shape a new system for holding and prosecuting detainees amid challenges from all directions.

Graham has held four substantive conversations with Obama on detainee issues -- most recently Tuesday when the president called him to trade thoughts on his possible Supreme Court picks to replace retiring Justice David Souter.

"I know he's trying to do the responsible thing," Graham said of Obama's approach to the Guantanamo detainees. "I'm cautiously optimistic that we're looking at these issues in a similar fashion."

Obama has disappointed some liberals by deciding he'll maintain reformed military commissions to try detainees; by continuing aerial unmanned Predator strikes in Pakistan; and by refusing to end the Bush-era renditions _ secret abductions and transfer of suspects to other countries.

At the same time, Obama has angered former Vice President Dick Cheney and other conservatives with his moves to end "enhanced interrogations," to release the Bush administration "torture memos" that justified them and to close Guantanamo.

In an address delivered immediately after Obama's speech, Cheney defended the use of harsh interrogation techniques and accused Obama of withholding memos showing they had produced important intelligence that prevented attacks.

"If you have the American Civil Liberties Union and Dick Cheney disagreeing with you, you're in a pretty good place," said John Radsan, who served as CIA assistant general counsel under Bush.

Radsan now directs the National Security Forum at William Mitchell College of Law in St. Paul, Minn.

Obama and Graham, Radsan said, don't seem too far apart on some of the main detainee issues.

Both men, Radsan said, are between the Cheney group's "anything goes" approach to national security and civil libertarians' desire to try terror suspects in the normal criminal justice system.

"I put Graham in a messy place in the middle where Obama is and where I put myself," Radsan said. "These nuanced positions are difficult politically. That's why I think Obama and Graham are both showing courage."

Graham said that Bush and Cheney lost key legal challenges to their detainee policies that they could have won.

"I respect (Cheney's) view that we're at war and these people are dangerous," Graham said. "But the truth is, the Bush administration lost their court cases because they were resistant to Congress' input and they tried to deal the courts out. It came back to hurt us. A lot of the legal decisions that went against the Bush administration could have been avoided."

Graham believes that, after early mistakes, Guantanamo has become a model prison run some of the nation's best military lawyers. But he has reluctantly come to agree with Obama that it must be closed because of what it had come to symbolize.

"Our military commanders tell me it would help our war effort, but we cannot close it until we have a plan," Graham said.

Under the evolving plan he is helping to shape, Graham sees the Guantanamo detainees -- and others to be captured in Afghanistan or now held in Iraq -- ending up at a refurbished or new military prison on American soil.

The detainees can't be held in a civilian penitentiary, no matter how secure, because it couldn't provide the Geneva Convention protections the United States is obligated to provide, Graham said.

Graham rules out the Naval Consolidated Brig in North Charleston, which the Pentagon has identified as a possible destination for the detainees, saying they need to be held in a more isolated area.

"The American people need to be reassured that the president views the detainees at Guantanamo as national security threats," Graham said. "Most senators would support closing Guantanamo and moving its prisoners back to the United States, but the president would have to show them and their constituents that he has a responsible plan and that this is in the national security interest to do so."

McClatchy Newspapers 2009

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