WASHINGTON — He is Sen. Graham, but he is also Col. Graham
and Judge Graham — and to some in the military, that’s one title too
many.
In a case that could draw a line between service in the military
and service in Congress, the U.S. Court of Appeals for the Armed
Forces on Tuesday considered the circumstances of the senior senator
from South Carolina.
U.S. Sen. Lindsey Graham should not be both a senator and a
military judge, Air Force Maj. Andrew S. Williams told the
five-judge panel.
“The senator as a politician cannot be impartial or
disinterested,” he said. “He’s a politician accountable to his
constituents.”
Graham, a Republican and the only senator in the military, is a
reservist who in 2002 won his Senate seat and since 2003 has sat on
the Air Force Court of Criminal Appeals. He also sits on the Senate
Armed Services Committee, where he helps make the laws that govern
the military.
His special status has meant special attention. During the Armed
Services Committee’s hearings on American soldiers’ transgressions
at Iraq’s Abu Ghraib prison last year, the spotlight fell on Graham
as colleagues and the media invoked his expertise as a military
jurist.
Arguing for the Air Force on Tuesday, Maj. Michelle McCluer told
the judges that Graham’s moonlighting hurts no one.
“There is no active conflict with Col. Graham sitting on the
case,” she said. “No harm has been shown.”
Williams, who represents Airman 1st Class Charles Lane, told the
military court that Lane did not get a fair hearing in front of
Graham in 2003 because Graham is a senator. At the time, Col. Graham
sat on a three-judge panel that let stand Lane’s bad conduct
discharge for using cocaine.
Williams invoked the Constitution’s separation of powers doctrine
— that the judiciary, legislative and executive branches of
government should exercise their powers independently.
Graham himself has shown why he shouldn’t be both a senator and
judge, Williams said, referring to Graham’s comments during
September’s confirmation hearings for Supreme Court Chief Justice
John Roberts, in which Graham seemed to downplay his military
job.
“I’m the only reservist in the Senate,” Graham had said. “I sit
as an Air Force Court of Criminal Appeals judge. I handle the easy
cases because I don’t have a whole lot of time and I help where I
can.”
But U.S. Rep. Joe Wilson, R-S.C., whose 31 years in the Army
National Guard overlapped with his time in the U.S. House, said such
dual service is a time-honored tradition — particularly among South
Carolina politicians.
The late Strom Thurmond, R-S.C., was both senator and Army
reservist. The late Floyd Spence, R-S.C., was both congressman and
Navy reservist.
Wilson, an attorney with the Army National Guard until he retired
in 2003, sits on the House Armed Services Committee. Like Graham, he
argues that a soldier-politician gleans special insight into the
military.
Often, after hearing top brass testify before the House Armed
Services Committee, Wilson said, “I’d go home and drill.”
The decision on Graham could affect his status as a judge, the
handful of other soldiers in Congress, and current and future
members of Congress who may also want to wear the uniform.
Neither Lane nor Graham attended Tuesday’s court proceedings in
Washington.
The judges who heard the case have until September to issue a
decision.
Graham said he could not comment on the case, but “either way,
we’ll make law.”
Reach Markoe at (202) 383-6023 or lmarkoe@krwashington.com.
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