A proposed amendment to the $64.9 billion, fiscal 2010 Commerce-Justice-Science Appropriations bill that would prevent C-J-S funds from being used to try perpetrators of the Sept. 11, 2001, terrorist attacks in federal courts is opposed by high-level Cabinet members from both sides of the aisle, which might provide the political cover needed for senators to vote it down.
"Everyone I have talked to is pretty confident that it will go down," Heather Hurlburt, executive director of the National Security Network, said Wednesday.
The Senate is set to vote on cloture on the C-J-S bill Thursday and could also finish work on the measure Thursday. Under an agreement announced Wednesday night by Senate Majority Whip Dick Durbin, D-Ill., after completing the C-J-S bill, the Senate will take up the fiscal 2010 Military Construction-VA Appropriations bill. Democrats intend to pass that bill before the Senate recesses for Veterans Day next Wednesday, a Senate leadership aide said.
The Senate began considering C-J-S Oct. 5, but set it aside after failing to get 60 votes to cut off debate on the bill Oct. 13.
Hurlburt cited a letter sent last week to Senate Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., from Defense Secretary Robert Gates, a holdover from the administration of President George W. Bush, and Attorney General Eric Holder opposing the amendment, offered by Sen. Lindsey Graham, R-S.C.
The NSN executive director said the letter will likely provide the political cover for Democrats from conservative states to oppose it, as well as some Republicans.
"When you have the Defense secretary ask you not to do something, that is pretty serious," Hurlburt said.
In the letter, Gates and Holder explained that the Defense and Justice departments are evaluating the cases of accused terrorists at the military's Guantanamo Bay, Cuba, detention facility to determine whether they should be prosecuted in federal court or by military commission.
"The exercise of prosecutorial discretion has always been and should remain an Executive Branch function," the letter said. "We must be in a position to use every lawful instrument of national power -- including both courts and military commissions -- to ensure that terrorists are brought to justice and can no longer threaten American lives."
Hurlburt said the Obama administration this year made it relatively clear they want to try as many cases in civilian court as possible but retain the military commission as an option.
"The reason to have military commissions is that you have these cases from Guantanamo, which the Bush administration mishandled, making it much harder to win what otherwise would have been some pretty easy wins in civilian court," Hurlburt said. "So what the administration thinks is that it may need the military commissions for what I'll call the Guantanamo hangover."
Her comments came after the NSN Wednesday put out a release opposing the Graham amendment.
"America's justice system has a long history of successfully holding and trying terrorist suspects. From the mastermind of the  World Trade Center attack to Zacarias Moussaoui -- the "20th Hijacker" -- to the Shoe Bomber Richard Reid, our prison and court systems have a long track record of keeping our communities safe while bringing dangerous terrorists to justice," NSN said. "The Obama administration is applying the same record of success to detainees held at Guantanamo."
Senate Republicans believe it will be difficult for Democrats who previously have voted against bringing Guantanamo detainees to U.S. soil to oppose the Graham amendment.
They also plan to argue, when the amendment comes up for debate, that federal courts are not the proper venue to try accused terrorists.
For example, during the federal trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links, which the government had been monitoring, had been compromised, and resulted in the loss of valuable intelligence, according to former Attorney General Michael Mukasey.
"I feel passionately [about] this idea. And there are too many press reports for me to ignore that they are going to take Khalid Shaikh Mohammed into federal court and give him the same constitutional rights as an American citizen," Graham said, adding, "Judge Mukasey has written that this is not the venue. They should be in military commissions. it's a transparent system, a quality justice system ... but it does allow you some ability to protect classified information."