WASHINGTON — Sen. Lindsey Graham plans to introduce a bipartisan bill Tuesday to block funding for civilian trials of five alleged plotters of the Sept. 11, 2001, attacks who are now being held at the U.S. military prison in Guantánamo Bay, Cuba.
Graham, a South Carolina Republican and a military lawyer, said that eight other GOP senators had signed onto his legislation, along with Democrats Jim Webb of Virginia and Blanche Lincoln of Arkansas, and independent Sen. Joe Lieberman of Connecticut.
"I have great respect for our civilian legal system," Graham told McClatchy on Monday. "However, I believe that the 9/11 co-conspirators should be tried under the law of armed conflict in a military tribunal setting. We are at war with al Qaeda, and civilian courts have never been used in the past to try war criminals."
Graham said he'd had recent talks with senior Obama administration officials about where to try the alleged Sept. 11 plotters, but he declined to elaborate. White House aides declined to comment.
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Laura Olson, a senior lawyer with The Constitution Project advocacy group in Washington, said civilian courts have convicted more than 200 accused terrorists since the 2001 attacks, while the military commissions created by Congress have convicted only three.
"The federal courts have proven themselves tougher and more reliable in trying terrorism suspects," Olson said.
The Senate on Nov. 5 defeated a similar Graham measure by a 55-45 vote, with all 40 Republican senators and Lieberman joining Democratic Sens. Webb, Lincoln, Maria Cantwell of Washington state and Mark Pryor of Arkansas in support.
Graham said two key events since then have led more senators to back his bill:
Graham said public opposition to trying Mohammed near the World Trade Center site has compelled the Obama administration to reconsider its decision.
"The public backlash is legitimate," Graham said. "Americans understand that these people are not common criminals. It's just hard to explain to the average American citizen why we would give al Qaeda members more rights than we gave Nazi prisoners of war in World War II."
David Axelrod, a senior Obama adviser, said Sunday that the president and Holder hadn't made a final decision on where to try Mohammed. He said new opposition to the plan from New York Mayor Michael Bloomberg and Police Commissioner Raymond Kelly, however, has prompted second thoughts.
Axelrod, however, reiterated Obama's commitment to try the five alleged Sept. 11 plotters and other terror suspects in civilian courts.
"He believes that we ought to bring Khalid Sheik Mohammed and all others who are involved in terrorist acts to justice swift and sure in the American justice system," Axelrod told NBC Sunday.
Obama missed his original deadline to empty the prison camps at Guantánamo Bay, which Monday held 192 foreign men as captives.
Mohammed is among the Guantánamo detainees, along with fellow Sept. 11 co-conspirators Ramzi bin al Shibh, Ammar al Baluchi (who's Mohammed's nephew), Mustafa Hawsawi and Walid Bin Attash.
Graham, the only member of Congress who has served active duty in Iraq and Afghanistan, said the detention of the alleged Christmas Day flight bomber has helped his cause.
Holder's decision to hold Nigerian-born Umar Farouk Abdulmutallab, who allegedly tried to ignite explosives concealed in his underwear on the Amsterdam to Detroit flight, in a civilian jail in Michigan and have civilian prosecutors question him limited the intelligence he provided, Graham said.
"The attempted bombing by an alleged al Qaeda operative of a civilian airliner should have been viewed as violating a law of war, not a domestic criminal law," Graham said. "Under domestic criminal law, we don't have any option to question people without reading them their rights. He should have been turned over to military authorities and questioned as an enemy combatant."
The U.S. could have learned far more from Abdulmutallab if he'd been immediately processed and detained in the military tribunal system, Graham said.
"He's a classic example of a person fresh off the battlefield who could have provided valuable intelligence over a long period of time," Graham said.
Axelrod disagreed, saying that "we have not lost anything as a result of how his case has been handled.
"I would suggest that everybody wait and see the disposition of this case, because my sense is that he has given very valuable information to the government about activities in Yemen and some of his experiences there."
Miami Herald correspondent Carol Rosenberg contributed to this report from Miami.