Senate Insider on Military Justice

Times Staff Writer

The U.S. Senate may be one of the most exclusive clubs in America, but Lindsey Graham is a member of another that in some ways is even more elite: the United States Air Force Court of Criminal Appeals.

Sen. Graham, who holds the rank of colonel in the Air Force Reserve, is one of just 13 judges on the court, which hears appeals of court-martial rulings from the Air Force. The job is his latest in a 24-year military career; he is the only member of the Senate serving in the military.

These days, Graham is better-known as a Republican congressional critic of the Bush administration’s policies for handling detainees at Guantanamo Bay, Cuba, and elsewhere, as lawmakers begin work to draw up a new legal system. But as a result of his military career, the first-term senator from South Carolina also has become his party’s unassailable authority on military justice.

“We need to not only adhere to treaties that we’ve been a part of for 60 years for the protection of our own troops, we need to let people know that we can win this war without becoming our enemy,” Graham said in an interview.


Besides his military law expertise, Graham also is known as something of a maverick within the Republican Party. Both traits are likely to be on display today -- as they were earlier in the week -- as senators grill administration officials over the military commissions at Guantanamo, a system ruled illegal last month in a landmark Supreme Court decision.

The court wants Congress to approve a new system for prosecuting detainees. Administration officials have made it clear that they want Congress to approve the system of military commissions the White House designed.

Graham has said no.

“I would suggest to the administration that the best way to work with Congress to solve this problem is to take the [military justice code] as your basic guide,” Graham said at a contentious Senate Judiciary Committee hearing Tuesday. “If you fight that approach, it’s going to be a long, hot summer.”


Graham has spoken frequently with White House officials, and met this week with national security advisor Stephen J. Hadley. He said he was convinced the administration was coming around to his view that revamping the military commissions to provide detainees with more rights was the proper thing to do.

“I have nothing but good things to say about the administration’s attempt to reach out and fix this problem,” Graham said.

At least some of his colleagues believe that Graham’s views may hold sway with the administration and Congress.

“Lindsey is very persuasive and very articulate,” said Sen. John McCain (R-Ariz.), who counted Graham as a staunch ally when he challenged the administration last year over the treatment of detainees. “He is the only guy in the Senate who has practiced the Uniform Code of Military Justice, so he has a pretty good idea what it’s all about.”

Graham’s willingness to challenge the Bush administration on the issue has earned plaudits from Democrats, who once considered him an enemy. Before becoming a senator, Graham served four terms in the House of Representatives, where he is perhaps best remembered as a lead prosecutor during President Clinton’s impeachment proceedings.

But these days, even Sen. Hillary Rodham Clinton (D-N.Y.) appears forgiving. “He has demonstrated a grasp of the issues and a commitment to the values of our military justice system, and an understanding of how what we do with enemy combatants affects our own troops. So I hope people listen to him,” Clinton said.

It remains to be seen, however, whether Graham can become a spokesman for his party on the issue. Like McCain, Graham has not been the most obedient of Republican foot soldiers, often charting his own course. On the Judiciary Committee, for instance, Graham is seen as a moderate who occasionally votes with Democrats on issues like immigration.

But Graham works hard to preserve his reputation as a conservative, especially on social and fiscal issues.


“I like being a conservative,” Graham said in an interview. “I’m comfortable with my conservative credentials.” But, he added, “I believe in listening. I believe in trying to find common ground” with the other side.

Lindsey Olin Graham was raised in the back room of a restaurant and bar in Central, S.C. His parents put him in charge of the pool hall downstairs, where he racked balls for textile mill workers when they got off work.

“Everything I needed to know about politics, I learned there,” he has joked.

His parents died when he was in college, and Graham adopted his 13-year-old sister, becoming her legal guardian.

Graham had been in the Air Force ROTC, but in part for family reasons, the Air Force permitted him to attend law school before going on active duty as a judge advocate.

Law school was his second choice. He would have preferred to become a pilot, but his hearing was imperfect.

“It’s probably good I didn’t get to fly. I probably would have killed myself,” Graham said.

As a military lawyer, he soon worked on a case involving a controversy over drug testing, eventually forcing the Air Force to abandon a urinalysis program that he proved was flawed. He was promoted to prosecutor, and spent the next four years arguing court-martial cases across Europe.


Since 1989, he has served in the National Guard and the reserves, and was called up to serve during the 1991 Persian Gulf War.

Graham’s joint duties as a military judge and a senator have raised eyebrows in some quarters. His first case as judge, in which he ruled against an airman who was dismissed from the service for using cocaine, is still under appeal, with attorneys for the defendant charging that Graham should not serve as a military judge and senator at the same time.

The U.S. Court of Appeals for the Armed Forces has yet to rule in the case.

“Can I be a member of the Senate and a military judge at the same time?” Graham asked. “I think so.”

As a former prosecutor, defender and judge, he has served on all sides of the military justice system. He says he liked being a defender the best.

Graham said he did not doubt that some detainees at Guantanamo were innocent, and he took it as a personal responsibility to develop a system that would separate the innocent from the guilty and dangerous.

“I don’t doubt that there have been people caught in the net that weren’t who we thought they were,” he said. “The dilemma facing this country is: How can you have a system that makes sure that those swept up are not given life sentences, and how do you make sure that those intent on harming our country aren’t let back on the battlefield?”