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Hugh and Senator Lindsey Graham in the tall grass of military tribunals

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HH: Happy to welcome to the program United States Senator Lindsey Graham from South Carolina. Senator Graham, welcome. Good to talk to you.

LG: Thank you, Hugh. How are you doing, buddy?

HH: I’m great. I want to cover a bunch of stuff with you. Let’s do the easy ones first.

LG: Okay.

HH: Peter Keisler didn’t get out of committee today, because not enough Republicans showed up. Does that doom his confirmation in this session?

LG: No, I don’t think so. He’s a good guy. He’s being held up because of some dispute about the number of judges at a circuit level. It’s got nothing to do with him. Senator Sessions and another senator feel like the circuit they’re in doesn’t have enough judges, and they’re trying to get a better deal.

HH: But of course, that 11th judge had already been filled before…

LG: Yeah.

HH: …and so it’s not really a serious objection. I’m just curious about timing. We lost a week today because of the quorum.

LG: Yeah, no, I think we’re good to go. Our goal is to get before the end of September, at least four or five circuit court guys out, along with four or five district court guys.

HH: And will you vote to send William Haynes to the floor?

LG: He hasn’t yet, but the truth is, I’ll have a hard problem voting for Mr. Haynes. And you know, everybody else, I’m good to go, but I’ll have a hard problem voting for him.

HH: Why is that?

LG: Because I believe that he was a responsible party at the Department of Defense at a time to come up with legal infrastructure in the War On Terror that really confused our troops. And I just don’t want to make sure we put privates and sergeants in jail and fire the colonels. I think there has to be some accountability at the civilian side in the Department of Defense for creating policies that really have hurt the country. He’s a good guy. He’s an honest man, but I just have a hard time reconciling that, and he hasn’t answered all the questions, yet, so I don’t know where he’s going to be. But I will not stop him from coming out of committee. If I don’t vote for him, you can still send it to the floor.

HH: That’s great, because that’s…you know, I respect an honest disagreement with a nominee’s qualifications.

LG: Yeah, I don’t want Lindsey Graham to be the king in the death blow of judges. You know, I’ll vote my conscious, and let the body as a whole take him up. And if he gets fifty votes, fine.

HH: Now Senator Graham, let’s get to the main events, these two bills, military tribunals and the NSA surveillance.

LG: This is a huge deal.

HH: Yeah, they’re very big.

LG: Big deal.

HH: In fact, I’ll keep you as long as you want to talk, because I really want to understand. And last hour, I told people you were coming on, and a Marine Corps mom called in and said please ask Senator Graham how this is going to help my son, because if he’s captured…

LG: That’s the ultimate question.

HH: Yeah, which is if he’s captured, he’ll be beheaded like other Americans have been beheaded.

LG: And she’s absolutely right. If al Qaeda captures her son, or the Taliban captures her son, they’ll either hold him hostage to bargain, or they’ll butcher him. But there are plenty of examples out there since 1949 where people have been captured in times of war, and the reason they weren’t butchered or killed is because the people who had them, one, they’re not all suicide bombers. The problem with this enemy, they don’t mind killing you and themselves. A lot of enemies out there are not suicidal in nature, and they do worry about what happens to them. There’s plenty of examples in Somalia and other places where the Geneva Conventions have inured to our benefit. But here’s what I would tell to the Marine mom. If we’re perceived to bail out of this Convention, then we’re going to set in force, or set in motion forces that will come back to haunt us in the next war, because there will be more wars, not involving al Qaeda and the Taliban. What I’d like to do is to make sure that the people we catch and put in Gitmo are held accountable for their crimes, and their dastardly crimes, in a way, not only to hold them accountable to make us safe, but the procedures we use, Hugh, are about us, not them. And I don’t want to do anything down there that would jeopardize our ability in the future to protect our guys if they fall into another country’s hands that could be influenced.

HH: Now Senator Graham, a number of responses to that. A lot of them are collected at Andrew McCarthy’s wonderful essay at today. Have you had a chance to read that?

LG: I’ve been up to my eyes and ears in this other stuff. No, I’m sorry, I haven’t. I can only tell you what I think. For every…you know, the world is full of lawyers and opinions, and I’m just one. And I don’t claim…you know, I’m not overselling myself, but I’ve thought about this long and hard, and I’m convinced of the three things, and let me tell you right quick. The NSA program needs to be authorized by Congress quickly, and you don’t need a warrant to follow the enemy around. There is no requirement for President Bush to get a warrant to wiretap al Qaeda members. The only time you would need a warrant, in my opinion, is if you believe an American is involved in helping the enemy in a terrorist activity, you don’t even need a warrant to listen into the conversation initially. This idea of getting a warrant to follow the enemy is crazy, because we’re at war. And the one thing the president does is surveil the enemy. The only time you need a warrant is in very limited class of cases, where you think the American is committing treason. And if you think an American’s committing treason, you ought to be able to go get a warrant.

HH: Now Senator Graham, though, the Foreign Intelligence Surveillance Court in In Re FISA appeal 2002 said, implied…

LG: Right.

HH: They didn’t rule on it, that you don’t need a warrant, even in that circumstance, to conduct the surveillance. You might have trouble prosecuting, but you don’t need that warrant.

LG: That’s all I’m saying. I agree with that. If you don’t want to prosecute, don’t get a warrant. But you know what, Hugh? If somebody is helping the enemy, I want them prosecuted. And getting a warrang under FISA rules that we’ve created is very flexible. It would be a shame, in my opinion, to gather information about an American collaborator with the enemy, and not go get a warrant when you could. I think the person should be prosecuted.

HH: Well, we disagree on that…

LG: Okay.

HH: …and on whether or not, but my question is, will you support the bill that came out of the Judiciary Committee, the Specter…

LG: Absolutely.

HH: You will? Okay. That’s good. Then let’s get to the tribunals bill.

LG: Okay.

HH: The White House is saying that they are not attempting in any way, shape or form to not live up to our common Article 3 obligations. In fact, they’re saying that the treatment, the Detainee Treatment Act is fully incorporated into their bill…

LG: Right.

HH: And that what you and Senators McCain and Warner are asking for is even more protection for the non-combatants.

LG: I would say absolutely not. This is a completely different view of the problem. The military commissions have to be reauthorized after Hamden. What did Hamden do differently than 2005 Detainee Treatment Act? It said, the Supreme Court, not me, the Geneva Convention applied. In 2005, we passed the Detainee Treatment Act, the McCain amendment that barred cruel, inhumane and degrading treatment. That was a national policy statement. It wasn’t part of the Geneva Convention. The Court, for some unknown reason, said this is not an international conflict, and enemy combatant terrorists fall within the confines of the Geneva Convention Article 3, common Article 3. Hugh, it was my amendment the Court struck down. I was the guy, me and Jon Kyl, who passed the Detainee Treatment Act. We were going to throw the terrorists out of federal court so they couldn’t sue our guys, and we were also going to restrict their ability to prosecute them. The Court said the military commissions that Bush came up with violated common Article 3, because the Geneva Convention covers this war.

HH: And now you’re trying to define common Article 3, and…

LG: Well, here’s what I’m saying. We’re attempting now, after the Supreme Court holding, to protect our CIA and other operatives from going to jail unnecessarily, and being sued. What I am proposing is that under the Geneva Convention, every country has to outlaw domestically grave breaches of the treaty. We never did that until 1996. Jesse Helms and Jim Inhofe…do you have a minute here?

HH: Actually, we’re going to go to break, and I’d love to keep you so I can hear this.

LG: Good. This is very important.

HH: Senator Lindsey Graham is my guest. We’re going to get deep into the tall grass…

LG: Yeah, yeah.

HH: Senator Graham, before we go back to common Article 3, one follow up question. If William Haynes gets to the floor with your vote as you suggested in the first segment, do you consider…

LG: I will vote…I will not…I have the ability to vote no in committee, and still send him to the floor.

HH: Right, right. And so, if he gets to the floor, though, does the gang of 14 deal, in your opinion, apply to him?

LG: You know, the gang of 14 deal was to not filibuster unless there was an extraordinary circumstance, and every Democrats would have to define whether or not that’s an extraordinary circumstance. I don’t believe it’s extraordinary. I would…I just…if I’m voting, I don’t think it’s extraordinary.

HH: Okay.

LG: I think every Senator should vote, and not block this guy. Mr. Haynes, like everybody else in the pot, deserves a vote.

HH: Perfect. Now let’s go back to common Article 3…

LG: Okay.

HH: …because it’s my…to set this up for the audience…

LG: Right.

HH: …the Supreme Court said, much to the chagrin of Senator Graham and me that on the Hamden decision…

LG: Much to my chagrin.

HH: …that’s right, that the non-combatants are owed common Article 3 protections.

LG: Right.

HH: Unfortunately, those are ambiguous. Now they have to be defined…

LG: Okay.

HH: And Senator Graham wants to define them to include access to classified information, correct?

LG: No, here’s the way we do it. Common Article 3 is part of all four Geneva Convention protocols dealing with civilians, lawful combatants, and unlawful combatants. An unlawful combatant is a terrorist. President Bush prosecuted this war under the theory that they were not part of the treaty. They did not wear a uniform. They would be treated humanely, but they were not Geneva Convention qualified. The Supreme Court said no, they are. And what happened after that is very important. They struck down the military commission system authorized by President Bush that we had in our Detainee Treatment Act. They said that since common Article 3 applies to the War On Terror, one of its provisions is that the Court to try someone who’s an enemy combatant must be regularly constituted. They held that the military commission deviated from the court martial process without showing a practical need. Under the Uniform Code of Military Justice, it allows military commissions to be used for war crimes by non-American personnel, but it says in the UCMJ to the extent practical, they should mirror court martials. The Court said military commission order 1 did not demonstrate why there was a practical need to deviate, and it further said excluding the excused from some parts of the hearing deny confrontation. So the goal of the Congress, and my goal, and the President’s goal, is to rewrite the military tribunal law to fit within Hamden. You do not have to make it a court martial. There are many things in a court martial that should never apply to a terrorist trial. You can give the government a privilege in a terrorist trial because we’re at war, regarding disclosing classified information, that you could not give in a court martial. I agree with that. I have created in the Senate bill a national security privilege available to the prosecutor to invoke if the defense wants to know about source and methods involved in the case. That, to me, is perfectly sound. The judge would be able to not have to give to the defense source and method material that’s classified. What the administration’s draft does that I think is a fatal flaw, it would allow the judge to make a decision about releasing classified information as a result of a discovery request, which I agree. But it would also allow the prosecutor to give to the jury classified information to base their decision of guilt or innocence upon, give it to the defense counsel with a prohibition that the defense counsel cannot discuss with his client what the jury has in front of them to convict him. I am confident, I am completely committed to the idea that I want to try terrorists in a military courtroom, not in a civilian courtroom. But every judge advocate, every admiral and every general has said that 1) you do not need to go that far. And if you go that far, the trial will fail. And I’m confident of that, too. I don’t believe we could ever have a trial called an American trial, no matter whether it’s a pedophile or a terrorist, that goes to jail, to the gas chamber, to the death penalty chamber, without being able to confront the evidence. It’s not necessary.

HH: Senator Graham, my response to that, and I’d really like to hear how you respond to that, is I think you’re wrong. I’ve been teaching this for ten years. I’ve read the Hamden up and down. I’ve read Kennedy’s concurrence, and I believe Chief Justice Roberts, with whom I shared an office in the White House Counsel’s Office, will uphold President Bush’s bill. So given that I believe Kennedy will come back, and that there are at least five votes to uphold President Bush’s bill, because obviously, Justice Kennedy only wanted you to act. That’s what he wanted, was the Justice Jackson, third-tier kind of situation. Since the President’s bill would be, in my opinion, upheld, even if I’m wrong, it will just be sent back. But that higher level of protection of denying access to classified information, which could end up through the al Qaeda means, back in the hands of people who want to kill us, why not try the President’s way?

LG: Well, here’s the reason, I think. One, I don’t want to do it a third time. You’ve got 25-50 people down there that should have been prosecuted years ago, and we’ve just been screwing around with this thing, Hugh, playing cutting corners when we don’t need to. 10 of the guys ready to be prosecuted will go into the court and say I did it, and look the judge in the eye. One of them’s already looked the judge in the eye and said I will kill you and your family. If we enact a procedure where the jury can convict the accused on information not shared with the accused, it will fall, and we’ll be setting a precedent for a trial to happen in a foreign land with one of our soldiers…

HH: Now Senator Graham, that’s a different argument.

LG: The mother of the Marine…let me tell you. I don’t want to legitimize a trial of her son in some foreign land where they never showed him the evidence against him, and they convict him. That is not going to happen. It need not happen. It would be a disaster.

HH: So help me out, Senator Graham. You just switched arguments on me. You supported the earlier bill struck down by the Court that provided no protections. Now you’re demanding more…

LG: No, I’m saying the earlier bill did not allow this procedure. The military commission order one did not…you know, that was not part of this, that this whole thing is new and different. And the Court in Hamden said one of the flaws of military commission order one was the right of confrontation. I can’t imagine a situation as a defense counsel where I’m told of something that my client allegedly did, the jury has that information that could put my client in jail forever or be executed, and I can’t ask him what’s your side of the story. How in the world can you represent somebody against a capital charge if you can’t ask them your side of the story?

HH: And Senator Graham, the side of the story of al Qaeda, in my mind, in the President’s mind, and the mind of the lawyers from the military JAG that sent you folks a letter today is you’re wrong about that. My question is, will you rather have the Congress adjourn without the President’s bill, because he’s going to veto yours. And he’s the commander-in-chief.

LG: No, I’d rather fix it, and I can tell you right now. This is not the problem. I have been told in no uncertain terms if this is the only problem, we will get this resolved. There are plenty of people who understand this is unnecessary. Having classified information protected from a fishing expedition by the terrorist lawyer is absolutely…I’m with you. Every lawyer worth their salt is going to want to know everything about the government’s case, hoping they will drop it. Scooter Libby’s people is doing that.

HH: But Senator, will you let the Congress go home without a bill on this? Will you stop it?

LG: I don’t know. And Lindsey Graham will not be the reason we go home without a bill. But here’s what I’m not going to do, Hugh. You know what? I’m up here for a reason. I’m up here to use the best judgment I have, and use the experience I have not to play politics. And I’m not going to vote for something that I think would put our men and women in jeopardy, that will compromise the legal integrity of our country, and I’m just not going to do it.

HH: And I appreciate that, Senator. I just want you to listen, please.

LG: I’ll listen.

HH: There are lots of us who just think you’re dead wrong, and it’s dangerous for the country. But I hope you’ll come back again. I enjoyed the exchange.

End of interview.


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