Graham said it's clearer now that Guantanamo will not be closed, but he called Obama's detainee policy "illogical" and said the U.S. is a country "without a jail."
Monday's executive order left Graham confused on the big questions "the country has been plagued with [with regard to handling detainees]," he said.
To ensure that KSM is tried by a military commission, Graham said he plans to offer legislation preventing any money from being spent on a civilian trials for him and any of his co-conspirators "soon," although he said he wouldn't try to attach it to the next stop-gap spending bill, which keeps the government up and running and is the subject of heated budget talks and.
At the beginning of Obama's presidency, Graham, a reservist in the military's Judge Advocate General program, had served as a point-man on the administration's efforts to close Guantanamo Bay, which he and Sen. John McCain (R-AZ) at the time at the time agreed needed to be shuttered to stop terrorists from using it as a recruiting tool. But Graham, the main architect of the 2006 military commissions law, wanted to couple the closure with comprehensive legislation creating an entirely new legal structure to deal with detainees.
The Obama administration's plans to close Guantanamo Bay ran into stiff opposition in Congress when Attorney General Eric Holder announced plans to try KSM in New York civilian courts. Rep. Peter King (R-NY), as well as several New York Democrats including Sen. Chuck Schumer, vigorously opposed the move, arguing it would cost the city millions for security arrangements and give KSM a public platform to spew anti-American vitriol.
The Illinois congressional delegation also fought Obama's efforts to move Guantanamo Bay detainees to a prison facility in their state.
The administration's plans for trying terrors suspects have been in limbo ever since, exacerbated by the acquittal last fall of Ahmed Ghailani, a Guantanamo detainee charged in the bombings of the U.S. embassies in Kenya and Tanzania, on all but one count out of 284 charges against him.
The Obama administration's indecision on Guantanamo, Graham said, has led the military to kill suspected terrorists on the battlefield or through drone strikes or hand off those captured to other countries for detention. Special forces on the ground in Afghanistan and and judges handling the cases, he said, have been "screaming for legislative clarity" on detainee policy.
"I think Congress is going to act on its own now," he said. "We need to move forward...we're a nation without a jail."