Detainee bill wins passage in Senate

The Baltimore Sun

WASHINGTON -- The Senate approved yesterday President Bush's plan to question and try foreign terrorism suspects before military judges - without oversight by the federal courts.

Bush is expected to receive a bill he can sign into law in the next few days, but legal challenges almost assuredly will be pursued against the prosecution process that the administration wants to use as a key element in its war on terrorism.

The measure's most disputed provision would block foreign prisoners held by the military from turning to the federal courts to end their imprisonment. By preventing detainees from challenging their confinement in court, it sets up a potential constitutional conflict with the Supreme Court.

The Senate rejected yesterday a proposal to include this right in the bill establishing the rules for the new military tribunal system; the overall bill was then approved, 65-34.

The bill mirrors a measure passed by the House on Wednesday.

The legislative victory for the president came just three months after he had suffered a stinging defeat in the Supreme Court. In striking down the plan the White House had devised on its own for putting "unlawful enemy combatants" on trial, the justices ruled that Congress must authorize the process for trying terrorism suspects.

The Republican-led House and Senate not only gave Bush the legal authority he requested but also told the Supreme Court to stay out of the matter .

The bill won passage in the Senate just hours after Bush went to Capitol Hill to tell Republican lawmakers: "There's still an enemy out there that wants to do harm to the United States."

Because of slight differences in the Senate version of the bill, it must be returned to the House, where it is expected today to again easily win approval. Republican leaders then plan to forward the bill to the White House with a ceremony on Capitol Hill, part of the party's effort to highlight its national security credentials before the November election.

"This legislation will give the president the tools he needs to protect American lives without compromising our core democratic values," said Sen. Tom Coburn, an Oklahoma Republican.

But some lawmakers, Republicans as well as Democrats, called the move to suspend habeas corpus - demands for legal justification for one's imprisonment - a historic mistake, and one that could cause the entire bill to be struck down.

"This is wrong; it is unconstitutional; it is un-American," said Sen. Patrick J. Leahy of Vermont, the top Democrat on the Senate Judiciary Committee. Judiciary Committee Chairman Arlen Specter, a Pennsylvania Republican, said, "Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we'll be back on this floor again" grappling with a ruling against it by the Supreme Court.

Still, Specter was one of 53 Republicans and 12 Democrats voting for the final bill. Leahy was one of 32 Democrats - including Maryland Sens. Paul S. Sarbanes and Barbara A. Mikulski - who opposed it, along with one independent and one Republican, Sen. Lincoln Chaffee, who is locked in a tough fight for re-election in Democratic-leaning Rhode Island.

Before the measure passed, a move by Specter and Leahy to restore the right to habeas corpus for foreign prisoners held at the U.S. military base at Guantanamo Bay, Cuba, was defeated, 51-48.

Sen. Lindsey Graham, a South Carolina Republican and a military lawyer who helped write the bill, said federal judges should not be permitted to interfere with the military's handling of prisoners.

"I don't believe judges should be making military decisions in a time of war," he said. "To substitute a judge for the military in a time of war on something as basic as who our enemy is not only not necessary under the Constitution, it impedes the war effort."

The privilege of habeas corpus holds a venerated place in English and U.S. law. The U.S. Constitution says, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

But it had long been unclear whether this right extended to foreign prisoners held by the U.S. military. After World War II, the Supreme Court said German war prisoners did not have a right to file writs of habeas corpus to challenge their imprisonment.

Two years ago, the Supreme Court reversed course somewhat in a case brought on behalf of Guantanamo detainees. In Rasul v. Bush, the justices interpreted a measure passed by Congress in the 19th century as opening the door for judges to hear claims from prisoners held by the military who say they are "wholly innocent of wrongdoing."

The measure about to clear would close that door. The legislation says, "No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States [who] has been determined ... to have been properly detained as an enemy combatant."

Congress passed a similar restriction in December in the Detainee Treatment Act. But in its decision in June, the Supreme Court interpreted that ban as applying only to new claims, not pending cases that had been filed earlier on behalf of Guantanamo detainees.

Under the new legislation, it would apply to all claims.

But Specter questioned yesterday whether Congress could suspend this right. "The Constitution is explicit in the statement that habeas corpus may be suspended only with rebellion or invasion. We do not have a rebellion or an invasion," he said.

The rules for the military trials the measure would establish generally follow those proposed by the Bush administration. Prosecutors would be able to make use of "hearsay" evidence and confessions that were obtained through coercion, as long as the military judge believes the evidence is reliable.

It is not clear whether the administration plans to try many of its detainees as war criminals. This summer, only 10 of the more than 500 men who have been held at Guantanamo had been charged with war crimes. And none had been tried when the Supreme Court struck down Bush's plan.

Bush recently announced that he had sent 14 "high-value" terrorists to Guantanamo. They had been held in secret prisons run by the CIA. This group includes Khalid Sheik Mohammed, accused of being the mastermind behind the Sept. 11 terrorist attacks.

The passage of the new bill clears the way for him to be tried. If he were convicted, and possibly sentenced to death, he could appeal his conviction or sentence to the U.S. Court of Appeals for the District of Columbia. If that appeal fails, he could ask the Supreme Court to review his case.

David G. Savage and Richard Simon write for the Los Angeles Times.

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