This previously undisclosed document is a proposal Senator Lindsey Graham, Republican of South Carolina, developed in 2009. It was a starting point for what became lengthy but unsuccessful negotiations with the Obama White House over a grand bargain on detainee policies. (The existence of those negotiations has been reported.) I discuss it in Chapter 4, Section 12: “A Temptation to Entrench Gitmo-Style Policies.”
Obama had promised to close Guantanamo, and his administration crafted a plan; its centerpiece was to bring every detainee who was deemed too dangerous to release into the United States for continued wartime detention in another prison or for prosecution. But Obama’s plan soon ran into resistance from Congress. The first phase of opposition had been Congress’s imposition, in the early summer of 2009, of a ban on releasing any detainees inside the United States to live freely on domestic soil (though Obama remained free to bring them to a domestic prison), and a requirement to notify lawmakers ahead of time before transferring anyone to another country. The Graham pushback, beginning later that summer, started the second phase of resistance.
Under a framework Obama had outlined in a speech at the National Archives, as many as possible would be prosecuted in civilian court, with charges before a military commissions as a backup option. Some irreducible minimum of untriable but unreleasable detainees would be held in continued indefinite law-of-war detention, subject to parole-like periodic reviews. Because newly captured terrorists would be easier to prosecute – criminal laws against providing material support for terrorism had been expanded after 9/11, and no one was going to be tortured anymore – it was not clear whether anyone other than legacy detainees inherited from the Bush administration would fall into the law-of-war category.
Senator Graham was a strong supporter of using military commissions and interrogation in military confinement (though he staunchly opposed torture) rather than handling terrorism suspects in the civilian criminal justice system. He proposed providing some Republican political support for Obama’s Guantanamo closure plan – which would need funding from Congress to build or modify a replacement prison in the United States, among other things – which would also help wavering Democrats support it. In return, he wanted Obama to embrace using military commissions as the primary option, not the exception, and to take newly captured terrorism suspects to the replacement facility. The White House negotiated off and on with Graham into mid-2010, but they ultimately struck no deal.