Can Lindsay Graham Broker a Deal on 9/11 Trials?

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From left: AP; John Moore / Getty

From left: Khalid Sheikh Mohammed, the alleged Sept. 11 mastermind, shortly after his capture; the Guantánamo Bay detention facility

President Barack Obama's chief of staff, Rahm Emanuel, is deep in negotiations with Republican South Carolina Senator Lindsey Graham over where and how to try confessed 9/11 ringleader Khalid Sheikh Mohammed. At stake are not just civilian court trials for the man known as KSM and his co-conspirators, but also the legal fate of all terrorism suspects, the future of the Guantánamo Bay detention facility and the credibility of U.S. Attorney General Eric Holder. But as talks continue, Democrats on Capitol Hill and in the Administration are wondering just what Graham can deliver.

Last November, Holder announced that KSM would be tried in a lower Manhattan federal court. Obama publicly endorsed the plan, but after the failed Christmas bombing attempt on a Detroit-bound airliner, Republicans on Capitol Hill launched a punishing attack against it. At the White House, Emanuel came to believe that congressional Democrats might rebel and block a civilian trial for KSM. Worse, he feared that Democrats might go even further and turn on the President's goal of closing the Guantánamo facility.

The outreach to Graham in search of a compromise gained steam on the eve of the blizzard that gripped Washington in early February. Obama convened a meeting on the KSM trial with his small group of advisers on national security, including Emanuel, top political advisers David Axelrod and Pete Rouse, Deputy National Security Adviser Tom Donilon and Vice President Joe Biden. Also present was Holder.

At the meeting, Obama approved Emanuel's negotiations with Graham but stopped short of signing off on an actual deal that would change the trial plans. The President also expressed continued support for the principle of civilian trials for terrorism suspects, sources familiar with the meeting tell TIME.

Talks with Graham have been complicated. Initially, the idea was that in exchange for the White House's abandoning civilian trials for the 9/11 conspirators, Graham would deliver support for civilian trials for lower-level terrorists and for closing the Guantánamo Bay detention facility. But progress has been slow. "We don't anticipate a decision for weeks," says White House spokesman Ben LaBolt.

The Administration faces Senate challenges on the issue from several quarters. Senators John McCain and Joe Lieberman introduced a bill last week that would block civilian trials for foreign terrorism suspects, prevent terrorism suspects from being read Miranda rights and require that they be held in military detention. McCain and Lieberman are close to Graham, and their proposed legislation has raised questions among supporters of civilian trials about the usefulness of negotiating with Graham.

Graham, moreover, has brought other issues into the negotiations. "You should not be able to close Guantánamo Bay simply by putting Khalid Sheikh Mohammed in a military court," Graham said on Fox News on March 5. Among the other measures he wants to see implemented is legislation that would allow holding terrorism suspects without trial or charge and a method of handling detainees who win their habeas corpus cases. Bringing KSM into a military trial, Graham said, "is a good start to find a way forward."

On top of Graham's attempt to expand the negotiations, the discussions are further complicated by the fact that Hill Democrats don't have a good fix on votes and don't believe the White House does either. "I don't think they've done the legwork to determine if they have the votes," says a senior Democratic aide.

Democrats worry that by negotiating with Graham, the Administration is conceding defeat at the start. "It's a self-fulfilling prophecy," says a senior Senate Democratic aide, "because if you let it be known that you might cut a deal because you think you don't have the votes, then you won't have the votes."

But staying the course could carry a high price. Trying to fight on for civilian trials could produce the kind of dramatic vote against the President that took place last spring, when the Senate voted 90-6 to block the transfer of Guantánamo detainees to the U.S. A Graham amendment to block funding for civilian trials for 9/11 conspirators failed 55-45 last fall, but Democratic aides say an undetermined number of Democrats may have slipped since Christmas.

White House counsel Bob Bauer is drawing up a list of options for how to proceed on the trials. The battle will intensify as spending bills move through Congress next month and the Administration seeks funding to close Guantánamo Bay.