Senate tables Graham amendment on trials for 9/11 suspects

The Senate on Thursday turned aside a measure to force conspirators of the Sept. 11, 2001 terrorist attacks to go through civilian trials instead of a military commission.

In a 54-45 vote, the chamber tabled a proposal by Sen. Lindsey Graham (R-S.C.) that would have prohibited funding for civilian trials instead of sending the suspects through a military commission at the U.S. prison in Guantánamo Bay, Cuba. Republicans for weeks had warned civilian courts are ill-equipped for such high-stakes trials.

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The amendment was attached to an appropriations bill and exposed disagreements among Democrats, as it was opposed by Sens. Jim Webb (Va.) and Joe Lieberman (I-Conn.), who caucuses with Democrats.

Graham, along with allies such as 2008 GOP presidential nominee John McCain (Ariz.), argued that the suspects’ legal rights would be protected in a military commission but that a civilian trial would become a “zoo” that would cheat justice.

Graham and McCain repeated their assertion that closing the Guantanamo Bay prison would help the overall U.S. military effort, but emphasized that the prison should be used for commission trials. Graham also said specifically that the so-called “mastermind” of the 9/11 attacks, Khaled Sheikh Mohammed, should not get a trial by a civilian court.

“We would be giving constitutional rights to the mastermind of 9/11 as if they were any average, everyday criminal American citizen,” Graham said. “We would be basically saying to the mastermind of 9/11 and to the world at large, ‘9/11 was a criminal act, not an act of war.’”

Democrats backed the Obama administration in opposing the amendment, arguing that U.S. officials need flexibility in prosecution decisions. They accused the GOP of blocking attempts to bring the suspects to justice.

Leaders such as Majority Whip Dick Durbin (D-Ill.), Judiciary Committee Chairman Patrick Leahy (Vt.) and Armed Services Committee Chairman Carl Levin (Mich.) said Graham's amendment would bar the Obama administration from pursuing justice.

“If this amendment passes, it will say that the only people in the world who cannot be tried in the courts of America for crimes of terrorism are those who are accused of terrorism on 9/11,” said Durbin.

More than 200 family members of 9/11 victims had sent an open letter to the Senate, echoing the Republican argument that military commissions are preferable.

“We believe that military commissions, which have had a long and honorable history in this country dating back to the Revolutionary War, are the appropriate legal forum for the individuals who declared war on America,” the letter read. "The public has a right to know that prosecuting the 9/11 conspirators in federal courts will result in a plethora of legal and procedural problems that will severely limit or even jeopardize the successful prosecution of their cases.”

Democrats cited opposition to the Graham amendment from other 9/11 victim families as well as Attorney General Eric Holder and Defense Secretary Robert Gates, arguing that 165 terrorists have been successfully prosecuted in U.S. courts in recent years and that the amendment would be an unprecedented intrusion into executive branch decisions about national security.

The amendment would have affected about a half-dozen suspects who were involved in planning the Sept. 11, 2001 attacks.

The day’s arguments included a rare reference by McCain to his U.S. military service during the Vietnam War, during which he was held prisoner by the North Vietnamese.

“During my life, I have been a warrior, although that seems a long time ago now,” said McCain. “I know something of the law of war, have fought constrained by it and having lived through with the help of my comrades and my faith -- times when my former enemy felt unconstrained by it. No, the attacks of 9/11 were not a crime. They were a war crime.”