The Wall Street Journal is absolutely right that Lindsey Graham is tossing up an embarassing air ball. As it writes in its opinion page today, Graham’s effort to get the administration to abandon legitimate federal court trials for suspected terrorists in exchange for the funding needed to close Guantanamo Bay is headed nowhere fast.

As I’ve noted before, Graham doesn’t have support for his scheme from either side of the aisle.

Senators with any respect for the U.S. justice system, let alone real concern for national security, know that it’s absurd to bargain away the requirement that the 9/11 suspects get a legitimate trial. That means a trial that not only convicts the guilty but reveals what really happened when the United States was ruthlessly attacked on September 11, 2001, and showcases our respect for the rule of law over brutality and political expedience. After all, the US constitution is no bargaining chip – it’s survived 223 years, through war and peace, for good reason.

Richard Durbin (D-Ill.), Russell Feingold (D-Wisc.), Patrick Leahy (D-Vt.) and others know that any cheap political points lawmakers might score by abandoning American principles will come back to bite them – particularly if military commission convictions are reversed on appeal. They’ll be even more embarrassed when the country looks back a few years from now and wonders how Congress came to abandon the most basic American principles because it was cowed by a handful of thugs eager to be seen as warriors for Allah martyred by the United States government.

Lawmakers speaking out against civilian trials, meanwhile, are so intent on undermining the Obama administration, regardless of their impact on national security, that they’re obstructing justice to score political points. Not only do they oppose federal trials, but they won’t agree to closing the prison camp at Guantanamo Bay so long as President Obama remains in office. No matter that scores of military leaders, in addition to former President George W. Bush and Senator John McCain – when he was a presidential candidate – agreed that Guantanamo must be shuttered.

So the Journal’s right that Graham can’t possibly deliver victory on his proposed compromise. But the paper’s conclusion — that military commissions are the place for KSM & Co. to go — is based on assumptions wholly divorced from the facts.

Military commission proceedings "since September 11 have been serious and even-handed," writes the Journal in its endorsement of those trials.

Really? Three convictions in eight years – only two of which followed trials that were even contested — hardly backs that claim up.

Take the case of Salim Hamdan, who military prosecutors characterized as a "hardened Qaeda member" and bin Laden’s right hand man. The military jury acquitted Hamdan of all conspiracy charges and three of eight charges for "material support for terrorism." The result was a sentence of only five and a half years – most of which he’d already served. And that was a case that government officials had said was "one of their strongest" against any of the Guantanamo detainees, as reported in the Wall Street Journal.

Meanwhile, federal prosecutors have convicted more than 195 terrorists in federal court.

Even Brookings Institution fellow Benjamin Wittes and former Bush administration official Jack Goldsmith, writing in the Washington Post last week, acknowledge the weakness of the military commissions. The two note that "serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions’ success and the role of the Geneva Conventions." Sorting out those issues "will take years and might render them ineffectual," the authors add. They also note that the commissions lack international legitimacy.

Wittes’ and Goldsmith’s solution, however, is even worse than the Journal’s. "Don’t bother trying them at all," the two scholars pronounced. "Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant," they argue, while the "public relations and related legitimacy benefits" of a military commission trial aren’t great, either.

So there we have it. Whether and how to try a group of men who are believed to have orchestrated the worst terrorist attack and mass murder ever on U.S. soil has come down to a question of pure politics. "It is time to be realistic about terrorist detention," write Wittes and Goldsmith, and to concede that the time has come to do away with our quaint notions of justice in favor of a new system of indefinite detention without trial. That should be supported, they argue, with new legislation codifying its legitimacy in U.S. law.

To be sure, that’s been the de facto response to many of the suspected terrorists held at Guantanamo Bay for the past eight years.

A similar course was briefly considered after World War II, when Winston Churchill reportedly told Joseph Stalin that he’d rather just execute Nazi leaders upon their capture. Stalin, of all people, insisted that they deserved a trial.

Historically, the United States has prided itself as being several steps above Stalin in terms of its respect for the rule of law. But these latest proposals make one wonder just how low some American opinionators and policymakers may be willing to sink.

daphneeviatarhumanrights1st

daphneeviatarhumanrights1st

As Senior Associate in Human Rights First’s Law and Security Program, Daphne Eviatar investigates and reports on U.S. national security policies and practices and their human rights implications.

Daphne is a lawyer and award-winning journalist who has written widely about law, human rights and economic development. A former legal correspondent for The Washington Independent, her work has appeared in The New York Times, The Washington Post, Newsweek International, Harper’s and many others. She’s been interviewed on radio and television, including on The Rachel Maddow Show and Morning Meeting with Dylan Ratigan (MSNBC), Al Jazeera, and WNYC and KCRW Public Radio.

Daphne was a 2005 Alicia Patterson Foundation fellow, a 2003 Pew International Journalism fellow at Johns Hopkins University’s School for Advanced International Studies, and has taught law and journalism at New York Law School.

Daphne is a graduate of Columbia University’s Graduate School of Journalism, New York University School of Law and Dartmouth College. She was a law clerk to Judge Irma E. Gonzalez on the United States District Court in San Diego, and to Judge Dolores K. Sloviter on the U.S. Court of Appeals for the Third Circuit in Philadelphia.

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