New Senate fight over 9/11 terrorist trials

Senate Republicans plan to push a provision aimed at blocking the Obama administration from trying in U.S. civilian courts any terrorists who plotted the Sept. 11, 2001 attacks.

An amendment by Sen. Lindsey Graham (R-S.C.) would “prohibit the use of funds for the prosecution in Article III courts of the United States of individuals involved in the September 11, 2001 terrorist attacks.” Graham and others want the 9/11 suspects tried instead in a military commission at the U.S. prison in Guantanamo Bay, Cuba, raising a variety of concerns that civilian courts are ill-equipped for such high-stakes trials involving potential national security secrets.

The amendment will be attached to an appropriations bill pending before the Senate this week, and would affect about a half-dozen suspects who were involved in planning the attack.

Graham said defeating his amendment would force a “fundamental shift in national security policy” by criminalizing war suspects and possibly jeopardizing their prosecution.

“It would be a major strategic mistake to take the mastermind of 9/11 and put him in a federal court,” Graham said, referring to Khalid Sheikh Mohammed. “It would be a zoo.”

Democrats are expected to back the Obama administration and defeat the amendment, arguing that U.S. officials need flexibility in prosecution decisions and accusing the GOP of blocking attempts to bring the suspects to justice.

“Why should we preclude any forum where they can be successfully tried and held accountable?” Majority Whip Dick Durbin (D-Ill.) told The Hill. “We rely on civilian courts every day for the security of Americans in our neighborhoods and homes, and I am not going to draw a conclusion that the Department of Justice should not be part of this conversation. I want them tried in a court where they are most likely to be prosecuted.”

Republicans hope to use the amendment to portray Democrats as inconsistent, after supporting a provision in July that called for military commission trials for war prisoners and making several statements against bringing the suspects into America.

“Unless they want to be called flip-flopping hypocrites by their constituents, Democrats who have opposed moving terrorists onto American soil in the past will oppose it today,” said one senior GOP aide.

While Graham, Sen. John McCain (R-Ariz.) and others have long advocated for closing the Guantanamo Bay prison, they have consistently complained that the U.S. legal system is unfit for some of the prison’s high-risk inmates.

In a letter to Obama on Aug. 6, Graham joined McCain, Sen. Joe Lieberman (I-Conn.) and Sen. Jim Webb (D-Va.) in calling for the 9/11 suspects to be tried at Guantanamo Bay.

“Given the robust procedural and substantive rights now provided by this revised system of military commissions, and the sensitive nature of much of the evidence that would be brought forth, we are disturbed that your administration has expressed a clear preference for prosecuting alleged war criminals in federal district courts in Virginia, New York and the District of Columbia,” the senators wrote.

“Such trials would treat the war on terrorism as a law enforcement operation, rather than a war, and would treat its alleged perpetrators as common criminals instead of violators of the laws of war.”