Just Like That, Graham and Holder Find Indefinite Detention Consensus

April 14, 2010 | Last updated: July 31, 2020

Sen. Lindsey Graham (R-S.C.) leads the charge against Attorney General Eric Holder’s effort to try Khalid Shaikh Mohammed in civilian court. But when it comes to indefinite detention, they found a lot of common ground.

Holder acknowledged earlier in the hearing that the administration was still working on what would be a reviewable determination that a detainee whom the administration would neither charge with terrorism offenses nor release posed a threat to the United States, in addition to receiving a habeas petition from a federal judge. Graham said he “applauded” that effort, since the determination could be a “de facto life sentence,” and urged the administration to look to Congress for helping craft such a procedure. Totally coincidentally, I’m sure, Graham is working on his own such indefinite detention proposal.

If I understand Graham and Holder correctly, what they’re describing sounds an awful lot like what used to prevail at Guantanamo Bay: a one-time determination that a detainee posed a sufficient threat to the U.S. to justify placement in Guantanamo, known as a Combatant Status Review Tribunal, with an annual determination of whether the threat from the detainee remains in place, known as an Administrative Review Board. In this case, though, there would be the additional, independent step of a federal judge’s habeas corpus review.