"I hope they don't create an environment where military commissions become a political football where they push things that are just over the line," he told TIME outside a Judiciary Committee mark-up on the surveillance bills. "There are too many kids that have been killed or wounded for us to play around with this. The legal infrastructure in the war on terror will be necessary for decades to come, not just for the next election, and we have an obligation to make sure that our troops have the clarity they need in fighting this war."
The biggest issue of disagreement between Graham and the White House is over rules of evidence. In its proposed rules for military tribunals, the White House wants to be able to introduce evidence that can be withheld from the defendant. The Administration wants those rules of evidence, moreover, to apply not just for alleged terrorists but for foreigners accused of conspiracy and other lesser charges. Graham and the Pentagon's leading lawyers want to allow military judges to make the decision whether classified evidence against detainees is important enough to the case to be shown to the defendant.
"They want to do something that is new and novel and that is very problematic," Graham says. "How can you effectively defend someone if you can't even talk to them about the case? I do not think that will survive judicial scrutiny." More important, he argues (as do Department of Defense lawyers) that restricting the rights now for even the worst of America's detainees could mean similar restrictions on the rights for America's armed forces captured in the future. "Its a bridge too far, and that's a precedent that could come back to haunt our troops," says Graham.
For now, Graham is winning. Though the White House has continued to beat the issue in speeches and press conferences, its legislation is stalled on the Hill. Democrats are doing their part, of course. Wisconsin's Russ Feingold exasperated Judiciary chairman Arlen Specter Thursday by introducing four amendments to the surveillance bill Specter had negotiated with the White House last June. The bill failed to make it out of committee and, like the military commissions bill, faces an uphill battle to reach the floor for a vote.
Graham may yet back down — he has been a key ally for the Administration on other controversial matters of detention in the past — but for now he's standing firm. "If you try to create political winners and losers this year then I think you've let those men and women on the front line of this war in the military and other agencies down," he says. "Politics will not protect us. 'Bad votes' will not protect us. What will protect us is an interrogation system that is constitutional and effective."