The Senate on Thursday narrowly defeated a bid to try Sept. 11 suspects only before military tribunals after an emotional debate that rekindled questions from the attack eight years ago over how to keep Americans safe from further assault.
The Senate's 54-45 vote to reject the measure by Sen. Lindsey Graham opens the door for President Barack Obama to bring Khalid Sheikh Mohammed, the self-professed mastermind of the Sept. 11, 2001 attacks, to trial in civilian federal court.
Obama has pledged to shutter the U.S. military prison at Guantanamo Bay, Cuba, by January and transfer some of its 220 detainees to the United States for trials in civilian courts.
Three Democrats - Sens. Jim Webb of Virginia, Blanche Lincoln and Mark Pryor, both of Arkansas - and independent Sen. Joe Lieberman of Connecticut joined all 40 Senate Republicans in voting to restrict the 9/11 trials to military commissions.
Graham, a South Carolina Republican and a military lawyer who has served active duty in the Iraq and Afghanistan wars, pleaded with his colleagues to back his amendment to a spending measure for the Justice Department and other federal agencies.
"Tell the president that we're not going to sit by as a body and watch the mastermind of 9/11 go into civilian court and criminalize this war," Graham said. "If he goes to federal court, here's what awaits - a chaos zoo trial."
Graham, who helped craft the 2009 Military Commissions Act, said he wants all the Guantanamo detainees to be tried before the tribunals. But he crafted his measure narrowly to focus on Mohammed and five other alleged Sept. 11 plotters at the Guantanamo prison.
"Khalid Sheikh Mohammed didn't rob a liquor store," Graham said. "He took this nation to war, and he killed 3,000 of our innocent citizens."
Senate Majority Whip Dick Durbin, an Illinois Democrat, said federal courts have convicted 195 felons of terror-related crimes since the 2001 attacks, while military tribunals have produced only three convictions.
"The Graham amendment would be an unprecedented intrusion into the authority of the executive branch of our government to combat terrorism," Durbin said. "To argue that we cannot successfully prosecute a terrorist in an American court is to ignore the truth and to ignore history."
The Supreme Court struck down the military commission system set up by President George W. Bush, and in a later ruling put restrictions on revamped tribunals that Congress had subsequently created.
Christopher Anders, senior legislative counsel for the American Civil Liberties Union, hailed the terrorism vote.
"Thankfully the Senate has made the right decision by not tying the president's hands when it comes to prosecuting detainees," Anders said. "Making it more difficult to prosecute detainees in our federal courts only serves to delay bringing them to justice."
A bevy of powerful senators joined the nearly three-hour debate, among them the chairmen of the Senate Armed Services and Judiciary committees, 2008 Republican presidential nominee John McCain and a former federal judge and former prosecutors.
"We're the most powerful nation on earth, with the most tested court system on earth," said Senate Judiciary Committee chairman Patrick Leahy, a Vermont Democrat. "Are we going to tell the world ... we're not up to trying the people who have struck at us?"
The debate at one point became a contest of dueling letters that pitted relatives of the Sept. 11 victims against senior Obama administration officials.
Graham waved a letter signed by 150 of the Sept. 11 families supporting his effort to require military tribunal trials for the accused attack plotters.
"There is the sickening prospect of men like Khalid Sheikh Mohammed being brought to the federal courthouse in lower Manhattan, or to the courthouse in Alexandria, Virginia, just a few blocks away from the scenes of carnage eight years ago," the letter said.
"Additionally, federal rules risk that classified evidence protected in military commissions would be exposed in criminal trials, revealing intelligence sources and methods and compromising foreign partners who will be unwilling to join with the United States future secret or covert operations," the families wrote.
Durbin, in turn, read from a letter to Senate leaders from Attorney General Eric Holder and Defense Secretary Robert Gates.
"The exercise of prosecutorial discretion has always been and should remain an executive branch function," Gates and Holder wrote. "We must be in a position to use every lawful instrument of national power - including both courts and military commissions - to ensure that terrorists are brought to justice and can no longer threaten American lives."
Durbin said it was ironic that GOP senators were pushing for legislative activism in the war on terror after years of criticizing Democratic lawmakers for overstepping their bounds in trying to limit Bush's power.
"Now my Republican colleagues have had a change of heart," Durbin said.
Graham said the Sept. 11 attacks exposed the problems of treating terrorist attacks as criminal offenses. He cited the trial of Omar Abdel-Rahman, the "blind sheikh" convicted in 1995 of plotting to blow up New York landmarks.
"As a result of that trial, the unindicted co-conspirator list was provided to the defense as part of discovery in federal civilian criminal court," Graham said. "That ... list was an intelligence coup for the enemy. It went from the defense counsel to the defendant to the Mideast, and al-Qaida was able to understand from that trial who we were looking at."