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Graham proposes framework for handling terrorism suspects

Sen. Lindsey Graham and the White House are discussing creating standards for addressing detainees' petitions for habeas corpus.
Sen. Lindsey Graham and the White House are discussing creating standards for addressing detainees' petitions for habeas corpus. (2009 Photo By Melina Mara/the Washington Post)
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By Anne E. Kornblut
Washington Post Staff Writer
Tuesday, March 23, 2010

Sen. Lindsey O. Graham (R-S.C.) has submitted draft legislation to the White House in an effort to create a broad framework for handling terrorism suspects, mapping out proposals that appeal to the administration and others that do not, officials said.

Senior White House officials have begun briefing leading Democrats on Capitol Hill on the Graham proposal, said the officials, who spoke on condition of anonymity to discuss a matter under negotiation.

President Obama opposes some items that Graham has promoted publicly, such as the creation of a national security court to handle detainees, but the White House is urging Democrats to treat the proposal seriously as a way to break the logjam over the closure of the U.S. military prison at Guantanamo Bay, Cuba, and other detainee-related issues.

Certain ideas under discussion appear likely to yield a compromise, administration officials said. One promising area involves creating standard procedures for addressing detainees' petitions for habeas corpus, which force the government to make its case for continued detention, rather than leaving those decisions up to individual judges.

Other matters, particularly rules governing the indefinite detention of terrorism suspects, are more complicated and might not get resolved immediately, officials said.

Administration officials said that the talks were preliminary and that they were deciding whether to begin a more formal negotiation with other members of the Senate Judiciary Committee. But as they struggle with major legal dilemmas, such as where to try those accused of carrying out the Sept. 11, 2001, attacks, officials said they are eager to try to reach a bipartisan agreement on detainee policy overall.

Initially, the discussions revolved around whether Graham would help the administration rally support for closing the Guantanamo facility in exchange for trying Khalid Sheik Mohammed, the self-confessed Sept. 11 mastermind, in a military commission instead of federal court. Graham opposes a civilian trial for Mohammed.

The talks are now much broader, participants said. It appears unlikely that Graham would settle for the narrower deal, and officials said the White House and the senator would prefer to reach what some have termed a "grand bargain."

Graham, who has met with top White House officials several times in recent months, declined to comment. Conservatives and liberals have criticized him for his effort to strike a deal with the Obama administration. But Benjamin Wittes, a Brookings Institution scholar who has advised Graham's staff on the proposal, lauded him for trying to create an overarching detainee framework.

"This is a conversation that the legislature much more broadly should have been having many years ago," Wittes said.

White House officials have expressed concern that if they fail to reach a comprehensive agreement, Democratic and Republican members of Congress will block funding for closing Guantanamo and civilian terrorism trials. At the same time, a senior Obama aide said the president is seeking a "coherent and durable" framework for handling terrorism suspects, a polarizing issue that has confounded his top advisers as they have struggled to relocate detainees and shut the prison.

With its broken promise to close Guantanamo in the first year of Obama's term and its abandoned effort to try Mohammed and others in federal court in Manhattan, the White House has stumbled in handling the politics of such issues.

Attorney General Eric H. Holder Jr. was scheduled to testify Tuesday before the Senate Judiciary Committee, but the hearing was postponed because of Obama's signing of the health-care bill. When Holder does appear, he will testify that the original decision on holding a trial in Manhattan was a "close call," a Justice Department official said, a phrase that he has used before but that in the current debate would signal an impending White House decision in favor of a military commission.

Such a signal would disappoint civil libertarians and government prosecutors who thought Holder was fighting to keep the case in federal court. Critics of the military commissions say that federal courts are a superior venue because they have a longer history of handling terrorist cases and because they represent a more transparent form of American justice.

Supporters of the military system, including some in the White House, say that Obama worked with Congress to add more due process and transparency through the Military Commissions Act of 2009, which the president signed in October.

Administration officials said they are aware of the dissent in the Justice Department over the idea of sending high-profile terrorism cases to military courts.

On Monday, a federal judge in Washington granted the habeas petition of Mohamedou Ould Slahi, a Mauritanian detained at Guantanamo who knew some of the Sept. 11 hijackers. At one time, he was regarded as a potentially invaluable source on al-Qaeda and was subject to brutal treatment at Guantanamo, according to a Senate investigation.

Staff writers Peter Finn and Carrie Johnson contributed to this report.


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