The 4 Conditions of the Geneva Convention Relative to POWs

July 18, 2006
G.O.P. Senator Resisting Bush Over Detainees
By KATE ZERNIKE

WASHINGTON, July 17 _ Senator Lindsey Graham of South Carolina often plays the contrarian, the conservative Republican willing to poke a stick in the eye of the White House.

Now Mr. Graham is playing an even higher-profile variant of that role, as the Senate's foremost expert on military law in the midst of the emotional debate over what rights to provide to terror suspects.

A former military lawyer who is also a reserve judge on the Air Force Court of Criminal Appeals, his influence is shaping up to be pivotal in forming the Congressional response to the Supreme Court ruling striking down the White House's plan for bringing terror detainees to trial.

Mr. Graham advocates using the existing court-martial system as the basis for trying suspects, a position that has drawn fire from many other Republicans. They say it could cripple the government's ability to protect the nation by giving detainees too many rights and making it harder to use highly classified intelligence against them.

But drawing on his own experience and a deep personal loyalty to the military justice system, Mr. Graham is working across party lines to try to assemble a consensus for his approach, saying it is sound legally and in terms of national security.

His views are shaped not only by his understanding of the law, but also by his respect for an institution he credits with changing his life, by shaping his career and allowing him to support his 13-year-old sister after his parents died when he was in college. His belief in the integrity of the military code has repeatedly led him to resist the White House when it comes to defining the treatment of people accused of being terrorists.

Last year, against the wishes of the Bush administration, he was one of the key forces in helping pass a ban on torture. Last week, he raised questions about the judicial nomination of William J. Haynes II, the Pentagon general counsel who helped write a memorandum that narrowly defined torture only as treatment that causes pain similar to death or major organ failure.

While some other Republicans argue that terrorists do not deserve legal or human rights, Mr. Graham has insisted that only a system grounded in the fundamental rights of the military code and the Geneva conventions will affirm the reputation of the United States abroad and protect American troops when they are captured by enemies.

"What I'm trying to do with my time in the Senate during this whole debate we're having is to remind the Senate that the rules we set up speak more about us than it does the enemy," Mr. Graham said in an interview. "The enemy has no rules. They don't give people trials, they summarily execute them and they're brutal, inhuman creatures. But when we capture one of them, what we do is about us, not about them.

"Do they deserve, the bad ones, all the rights that are afforded? No. But are we required to do it because of what we believe? Yes."

Administration lawyers have argued for Congress simply to ratify the tribunals that the Supreme Court ruled that the president could not set up on his own.

Mr. Graham has fought back in his hyperkinetic, folksy way. Challenging the lawyers this week, he bounced in his chair, rolled his eyes, shook his head and raised his voice, warning at one point that if they pushed the president's approach, "It's going to be a long hot summer."

"I'm a big fan of the Geneva Conventions," he declared.

At a hearing last week, Mr. Graham backed up Senator Hillary Rodham Clinton, Democrat of New York, as she prodded military lawyers to refute the claim of some Republicans that providing legal rights to terror suspects was tantamount to setting them free.

"Isn't it correct," Mr. Graham asked the panel, after making a polite interruption, "that you could be acquitted in a military commission and still be held as an enemy combatant _ even if you're acquitted?"

Nodding at Mrs. Clinton, he explained: "It goes to your point. You're absolutely right."

In an interview later, Mrs. Clinton called Mr. Graham's position "a perfect example of when someone's experience can be used to inform an issue."

"He comes to it from his own experience and deeply held convictions about the importance of our military code of justice," she said, "and an understanding as to the damage that has been done to our standing in general and the potential dangers in particular to our men and women in uniform."

Mrs. Clinton said, "There isn't anyone else in the Congress who can speak with such experience and authority."

Mr. Graham, who turned 51 last week, grew up in the rooms behind the bar and liquor store his parents owned in Central, S.C., a textile town. The first in his family to go to college, he joined R.O.T.C. and wanted to fly but was disqualified by what he calls "lack of math ability and bad hearing."

When his mother died when he was 21, the Air Force allowed him to continue his education instead of going into the service, so he could stay home. When his father died 15 months later, the service said he could attend law school in South Carolina so he could stay with his sister, and when he finished, the service posted him as a defense counsel to South Carolina so he could adopt her. After she went to college, he went to Europe as a military prosecutor.

"It changed my life," he said of the military legal corps. "It exposed me to things. I got to spend four years in Europe. I was thrown into court as a young defense attorney doing things, with responsibilities you'd never have in the civilian world as a lawyer."

Mr. Graham was elected to the House in 1994, where he became widely known for his role as a manager of the impeachment proceedings against President Bill Clinton. He was elected to the Senate in 2002.

Senator John W. Warner of Virginia, chairman of the Armed services Committee, has, along with Senator John McCain of Arizona, been one of Mr. Graham's Republican allies in bucking the White House on the torture issue. "In an extraordinary way," Mr. Warner said, "he overcame many obstacles and misfortunes that others never could imagine. His goals posts in life are to do what's best for the country, what's best for the military."

From his time on the defense, Mr. Graham says, he learned that the system provides fairness; from his time as a prosecutor, he came to see the importance of military discipline. For that reason, he said, it is important that soldiers continue to be trained using the Geneva Conventions, even in a war against a new kind of enemy.

"If a marine caught Osama bin Laden tomorrow, they're all trained to treat everyone as a prisoner of war under Geneva," he said. "You don't want to change that, because you don't want to confuse your troops out there."

It becomes trickier, Mr. Graham said, when coming up with the rules for interrogation. He argues that Congress must define what the conventions mean by "humiliating" or "degrading" treatment.

Still, he disputes the assertion of some Republicans that using the court-martial system will result in soldiers' having to stop in the middle of capturing a terrorist to read him his Miranda rights.

"That's an offense to the military legal community, who's telling us there's a better way, to suggest that that better way would hamper us," he said. "It's political rhetoric that's got to stop."

His position has met resistance from many of his fellow Republicans. To them, using the military justice system means giving terrorists the same rights as the troops who fight them. Senator John Thune of South Dakota is among the Republicans who have expressed qualms.

"I think that people across the country, as they listen to this debate, are going to apply what is, I think, a very common-sense standard to this," Mr. Thune said.

He said he preferred the administration's original plan to establish tribunals that did not rest on the Geneva Conventions.

But Mr. Graham believes Republicans in Congress and the administration will ultimately work to come up with a system that starts with the military code. Mr. . Graham says he is hearing three or four appeals as a military judge. But his own status is pending; a defense lawyer has challenged whether he can be a military judge and serve in the Senate. He laughs as he says he expects the case to be resolved by the military court system soon.

"I disagree, but I may have been wrong," he said. "Here I am on the receiving end, and I have nothing but respect for it."