Attorney General Eric Holder blamed Congress on Monday for preventing the Obama administration from closing the prison at Guantanamo Bay and forcing the United States to prosecute 9/11 planner Khalid Sheikh Mohammed in Cuba through a military commission and not in a civilian court. The move effectively ended Obama's promise to close the prison, by ensuring that it will be needed for trials for years to come.
But Sen. Lindsey Graham (R-SC), a former Air Force judge advocate general who once supported closing the Guantanamo prison, said on Tuesday that it was the administration that refused to work with its allies on Capitol Hill, including himself, to establish a bipartisan legal framework to facilitate holding detainees indefinitely without trial, conduct military commissions, and in some cases, civilian trials. He said that administration officials sabotaged his negotiations with the White House in early 2009.
"We came really close, quite frankly. I just think there are people in the White House, second-level down, who were very resistant to the idea of legitimizing that we were at war," Graham told The Cable in an exclusive interview on Tuesday.
"When I met with then President-elect Obama there was a way forward. But you had to prove to the American people that you could find a new jail site with a legal system that was national security-centric, and they've never been able to embrace a national security-centric legal system," Graham said.
The sticking point, according to Graham, was that the Obama administration could never reach a solution to the problem of how to deal with prisoners that cannot be tried but who are too dangerous to release. If they were to be brought into the United States, the civilian legal system could not indefinitely detain them.
"We need an indefinite detention statute that can give these people some due process but also recognize this is legitimate during war," said Graham. "All things being equal, I wish we could have found a new jail to get that chapter behind us."
Either way, Graham said, there was no way that Congress would have allowed the trial of KSM to be moved into the federal criminal court system, also known as Article 3 trials.
"There are plenty of places for Article 3 trials in this war on terror, just not with him," said Graham. "If he's not an enemy combatant, who would be?"
Graham is not alone in his contention that the Obama administration never seriously engaged Congress to help close the prison at Guantanamo Bay.
Throughout 2009, Democratic supporters of closing the prison at Gitmo felt abandoned as they unsuccessfully fought attempts by the GOP to insert language into congressional appropriations bills that prevented the government from spending any money to move Guantanamo prisoners to the United States.
During those debates, leading advocates of closing the facility, such as Rep. James Moran (D-VA), often complained that they could not get proper communication from either the Defense Department or the Justice Department to help them make the case.
White House counsel Greg Craig was fired at the end of 2009 for failing to implement Obama's Guantanamo promise, but Moran told The Cable at the time that the White House never really put a strong effort behind the policy.
"Greg Craig shouldn't have taken the fall over this issue," Moran told The Cable in Nov. 2009. "He thought that people would understand why it was in our nation's interest to close Guantanamo. But when things started to unwind, Greg was left there holding the ball all by himself."