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Graham Holds GTMO Closure Hostage, Calls It Bipartisanship

This is one strange way for Sen. Lindsey Graham (R-S.C.) to describe a “bipartisan” approach to closing the detention facility at Guantanamo Bay:

The South Carolina senator said that in a series of meetings and phone calls over the last “several weeks,” he has pressed to establish a new national security court that would keep most Guantanamo detainees out of the federal courthouse. He expressed confidence that he could strike a deal to extend some measure of habeas corpus rights to prisoners detained on terrorism charges and to draft a “law of war” statute that ensures no one can be detained on the whim of the executive branch without oversight or judicial recourse.

A breakthrough on those issues could lead to agreement on trials for Guantanamo prisoners outside the federal court system, he said.

So the price of closing Guantanamo is to create a “new national security court” from out of nowhere, according to the senior senator from South Carolina. The U.S. tried that once before when it created the military commissions. The courts have consistently found the commissions to be procedurally problematic, and even when the Obama administration embraced the commissions, senior officials testified that in essence they were going to make them more like civilian trials in order to withstand future scrutiny from the bench. Besides, the administration has declined to embrace the creation of new national security courts, even though some senior officials, like deputy solicitor general Neal Katyal, have long championed them. What’s to stop the courts from challenging another newly-created structure?

And for that matter, what’s wrong with the federal courts, which have a far better record of successfully convicting terrorists than any other model? Just yesterday, Attorney General Eric Holder, announcing the plea deal of Najibullah Zazi, affirmed, “the criminal justice system has proved to be an invaluable weapon for disrupting plots and incapacitating terrorists, one that works in concert with the intelligence community and our military. We will continue to use it to protect the American people from terrorism.”

Of course, it may be that the administration goes back on that principled stance because White House Chief of Staff Rahm Emanuel really believes, as he recently told The New York Times, “You can’t close Guantánamo without Senator Graham, and [Khalid Sheikh Mohammed] was a link in that deal.” That’s a political calculation, though, since Graham has no chairmanship or appropriations status or anything else. And if Emanuel thinks that Graham can really bring along his GOP colleagues to sing kumbaya with the Obama administration over national security courts, it’s worth asking why Graham’s support of a climate change bill hasn’t weakened GOP opposition to it. The Republicans are committed as a political strategy to opposing everything the Obama administration does, and on national security — despite the record — they think they can win. Does Emanuel, whose political skills were honed in the Clinton White House and the partisan Congress, really think the howling on the right will stop just because Lindsey Graham gets the administration to compromise its principles for a dubious detentions fix?

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