Josh Gerstein on the Ayotte Amendment

The vote, taken just after 1 a.m. Friday, broke largely along party lines with most Republicans backing Ayotte's proposal and most Democrats opposing it. The outliers were Sens. Ben Nelson (D-Nebraska) and Joe Lieberman (I-Ct.), who backed the amendment, and Sens. Rand Paul (R-Ks.) and Mark Kirk (R-Ill.), who opposed it. Under special rule for the so-called minibus appropriations bill the Senate is working on, 60 votes would have been required for Ayotte's amendment to prevail. One curious vote was that cast in favor of the amendment by Sen. Lindsey Graham (R-S.C.) Last year, when Lieberman and Sen. John McCain (R-Ariz.) proposed a measure similar to Ayotte's, Graham did not join them and said he thought it was unwise to rule out civilian trials for terrorism suspects. "Sen. Graham felt the Ayotte Amendment was equivalent to a timeout on the issue," Graham spokesman Kevin Bishop told POLITICO via e-mail. "As it was an appropriations bill, it would be a one year ban transferring new cases to Article III courts. Today, the Obama Administration seems intent on criminalizing the war. This is a disturbing trend and the Ayotte Amendment would have slowed that down." Earlier this week, Defense Secretary Leon Panetta and Attorney General Eric Holder sent the Senate a letter expressing "strong opposition" to Ayotte's proposal. They called the amendment "an extreme and unprecedented encroachment on the authority of the Executive Branch.