Two weeks ago, Sen. Lindsey Graham (R-SC), in the midst of negotiations with the White House over trading a military tribunal for 9/11 conspirator Khalid Shaikh Mohammed for the closure of the Guantanamo Bay detention facility, floated a new proposal: “a new national security court” for terrorism detainees. Graham didn’t appear to press the point in interviews since. But his spokesman, Kevin Bishop, said Graham is busy drawing up a proposal for how such a system would work, and gave some detail about its scope. As it happens, this is less a national-security court than it is an indefinite detention system. “There has to be some type of statute– and he’s been clear on that — for indefinite detention,” Bishop said.
Primarily, the system Graham is designing is set up for handling the Obama administration’s so-called “Fifth Category” of detainees that a Justice Department task force recommended against charging and releasing. “What do you do with them? What type of system do you have to hold them indefinitely?” Bishop said. “What type of system do you establish where we can ensure that we’re looking back at their cases; that we are holding them; we still determine that they are enemy combatants; they’re too dangerous to release; but we also aren’t going to try them in either a military or a civilian court. So there has to be a system for that, and that’s why Senator Graham is looking for a legal framework.”
Bishop said that Graham was not considering holding any American citizen indefinitely without charge — something that Graham’s close allies, Sens. John McCain (R-Ariz.) and Joe Lieberman (I-Conn.), included in their recent detention proposal. “You can’t hold an American citizen indefinitely in that kind of status,” Bishop said.
Graham is “talking with the White House” about the idea, Bishop said. But last year, the administration opted not to seek a new statute from Congress authorizing indefinite detention, as the Justice Department would “would rely on authority already provided” by the legislature for holding some terror suspects without charge.
There’s much that remains undefined about Graham’s proposal, including how much oversight judges would exercise over detainees held without charge. But Bishop said the system Graham is trying to set up wouldn’t just apply to the estimated 48 Guantanamo detainees the task force considers too dangerous to release but too difficult to prosecute in any forum. “There may be some people whom we capture in the future whom we can’t release,” Bishop said, “and that’s what Senator Graham is trying to establish.” Any proposal remains “weeks away” from introduction, he added, as “the White House has said they’re weeks away from any determination, even on the KSM situation.”
Update: I should clarify that the DOJ left itself wiggle room last year. According to The New York Times, while the administration opposed new legislation for the indefinite detention without charge of those 48-odd Guantanamo detainees, it hasn’t ruled out seeking such legislation for future detainees whom it may seek to hold indefinitely without charge. I’m trying to get some clarity here from the Justice Department.