SENATOR'S SERVICE AS MILITARY JUDGE SCRUTINIZED

Armed Forces Court to Hear Case on Whether Graham's Status Violates
Separation of Powers

WASHINGTON -- In a case that could help determine whether
citizen-soldiers have a place in Congress, a federal court on Tuesday
will weigh whether a U.S. senator who helps make Pentagon policy and
has spoken out on issues such as Iraqi prisoner abuse can also serve
as a military judge.

The case before the U.S. Court of Appeals for the Armed Forces here
involves Sen. Lindsey Graham, R-S.C., an Air Force Reserve colonel
appointed two years ago to the lower Air Force Court of Criminal Appeals.

Lawyers for Airman 1st Class Charles Lane are seeking to throw out
Lane's cocaine conviction on the grounds that Graham, one of three
appellate judges who reviewed his case, is "constitutionally and
ethically disqualified" to serve.

In court papers, Lane's lawyers argue that "Senator/Judge Graham
cannot be an impartial and disinterested judge" because he is
"politically accountable to his constituents for anything he does."
Graham declined to comment on the case's merits. "We'll live with
whatever the court says," he said.

The senator began his Air Force career on active duty in 1982 and
served as both a prosecutor and defense lawyer. In 1988, he
transferred to the Reserves before serving a five-year stint in the
South Carolina Air National Guard. Graham went back to the Reserves
in 1995, after he was elected to the House of Representatives.

Graham rejected Lane's request to recuse himself from the case, his
first since being named to the court in fall 2003. He and two other
judges let stand a bad-conduct discharge, four months in jail and a
reduction in rank stemming from the case at Sheppard Air Force Base in Texas.

The court challenge focuses on Graham's role as a military judge. The
outcome could also affect three other military reservists in Congress
because it seeks to clarify what the Constitution means by
"separation of powers."

The case would not affect Congress' 141 veterans, whose ranks have
steadily diminished since the military draft ended in 1973.

Two Republicans in the House of Representatives, Steve Buyer of
Indiana and John Shimkus of Illinois, are officers in the Army's
Standby Reserve, a category for key government employees who serve
without pay but earn points toward retirement.

Rep. Mark Kirk, R-Ill., is a Navy commander in the Selected Reserve.
He also isn't paid but puts in one weekend a month and two weeks a
year as deputy director of the National Military Joint Intelligence
Center -- the Pentagon war room.

Kirk says Lane is "trying to use a clever technicality to get off."
He says Congress needs members with military experience. "It makes us
stronger advocates for people in uniform, and I am totally
comfortable with that."

Shimkus, a former high school history teacher who has taught students
about the federal separation of powers, says, "One could make the
argument" that there is a conflict, no matter what job a reservist
holds. But, he added, "I'm just an infantryman."

Among Lane's arguments in the case:

* As an Air Force reservist, Graham answers to President Bush, the
military's commander in chief. Bush personally pinned on the
senator's colonel eagles after he was promoted last year.

* On issues such as federal regulation of military interrogations,
Graham is "in the constitutionally unacceptable position of both
making and interpreting the laws," says Lane's challenge.

* As chairman of the Senate Armed Services Committee's personnel
panel, Graham has a conflict because he is influential on pay and
benefit issues that could affect him directly.

The American Civil Liberties Union says Graham is violating the
Constitution's Incompatibility Clause, which prohibits members of
Congress from also holding "an office of the United States,"
specifically in the executive branch. The framers included the clause
to avoid conflicts of interest.

"It's a very odd situation," says the ACLU's Arthur Spitzer, who
wrote a "friend of the court" brief in the case. "If a U.S. senator
is sitting on a case, does he not think about how that will play with
the voters back home," especially on such issues as war crimes,
homosexual conduct or, as in Lane's case, drug abuse.

Air Force spokesman Capt. David Small says the Constitution "does not
require total separation of the three branches of the federal
government." He also said Lane lacks standing to challenge Graham's status.

Graham hopes he can keep his uniformed gig. "It helps me stay
grounded being around other citizen-soldiers," he says. "It's a break
for me from political life."