U.S. Sen. Lindsey Graham is trying to prevent the Obama administration from holding criminal trials in civilian courts for the alleged Sept. 11 plotters instead of bringing them before military commissions.
Graham, a South Carolina Republican who helped craft the 2006 Military Commissions Act, said Friday that he had attached an amendment to an appropriations bill, which would prohibit funding prosecution and trial of the accused terrorists before federal judges.
"Khalid Sheikh Mohammed needs to be tried in a military tribunal," Graham said. "He's not a common criminal. He took up arms against the United States."
Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, is being held at the U.S. military prison in Guantanamo Bay, Cuba, along with four other alleged plotters of the jetliner strikes that killed nearly 3,000 Americans.
Obama has pledged to close Guantanamo by January, a deadline that Graham said he doubts the president will meet.
Attorney General Eric Holder is overseeing a Cabinet-level task force of prosecutors, Pentagon lawyers and other senior officials to determine how to handle the more than 200 detainees at Guantanamo.
Graham, a military lawyer, said he and Democratic U.S. Sen. Carl Levin of Michigan, chairman of the Senate Armed Forces Committee, have worked with Jeh C. Johnson, the Defense Department's general counsel, and other administration officials to reform the military commissions.
The Supreme Court last year struck down part of the Military Commissions Act as unconstitutional, ruling that the accused terrorists at Guantanamo have the right to challenge their detention in federal court.
Johnson told the Senate panel in July that the administration preferred trying some of the Guantanamo detainees in civilian courts, but hadn't decided where to hold trials for the accused 9/11 plotters.
Federal prosecutors in at least four U.S. attorneys' offices in Virginia and New York are vying to bring the alleged Sept. 11 conspirators to court for what would be among the most high-profile criminal trials in the nation's history.
Graham, an Air Force Reserve colonel and the only member of Congress who has served on active duty in Iraq and Afghanistan, said holding such trials in federal courts, instead of before the military tribunals, would be a grave mistake.
"I've been warning the administration not to criminalize the war on terror," Graham said. "These guys should be tried in military court where we can protect classified evidence better. These people aren't robbing liquor stores. They're part of terrorist organizations that are waging war against the United States."
Open trials in federal courts would become media circuses, Graham said.
"It would be a nightmare," he said. "It would become a zoo, and it would change the theory of how we detain these people."
Such trials, Graham said, would make surrounding communities terrorist targets.
Graham's amendment blocking funds for civilian prosecutions and trials is part of the annual measure to fund the U.S. departments of justice, commerce, state and other federal agencies.
The Senate took up the appropriations bill Thursday. Graham said he hopes to force a vote on his amendment, as early as next week.
The amendment reads in part: "None of the funds appropriated or otherwise made available for the Department of Justice by this Act may be obligated or expended to commence or continue the prosecution in (a civilian) court of the United States of an individual suspected of planning, authorizing, organizing, committing or aiding the attacks on the United States and its citizens that occurred on September 11, 2001."
Aides at the White House, the Pentagon and in the Justice Department declined to comment on Graham's amendment.
"As a matter of policy, we don't generally comment on proposed or pending legislation," said Cynthia O. Smith, a Defense Department spokeswoman.