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Senate Approves Limiting Rights of US Detainees
By Eric Schmitt
The New York Times
Friday 11 November 2005
Washington - The Senate voted Thursday to strip captured "enemy
combatants" at Guantánamo Bay, Cuba, of the principal legal tool
given
to them last year by the Supreme Court when it allowed them to challenge
their detentions in United States courts.
The vote, 49 to 42, on an amendment to a military budget bill by Senator
Lindsey Graham, Republican of South Carolina, comes at a time of intense
debate over the government's treatment of prisoners in American custody
worldwide, and just days after the Senate passed a measure by Senator
John McCain banning abusive treatment of them.
If approved in its current form by both the Senate and the House, which
has not yet considered the measure but where passage is considered
likely, the law would nullify a June 2004 Supreme Court opinion that
detainees at Guantánamo Bay had a right to challenge their detentions
in
court.
Nearly 200 of roughly 500 detainees there have already filed habeas
corpus motions, which are making their way up through the federal court
system. As written, the amendment would void any suits pending at the
time the law was passed.
The vote also came in the same week that the Supreme Court announced
that it would consider the constitutionality of war crimes trials before
President Bush's military commissions for certain detainees at
Guantánamo Bay, a case that legal experts said might never be decided
by
the court if the Graham amendment became law.
Five Democrats joined 44 Republicans in backing the amendment, but the
vote on Thursday may only be a temporary triumph for Mr. Graham. Senate
Democrats led by Jeff Bingaman of New Mexico said they would seek
another vote, as early as Monday, to gut the part of Mr. Graham's
measure that bans Guantánamo prisoners from challenging their
incarceration by petitioning in civilian court for a writ of habeas corpus.
So it is possible that some lawmakers could have it both ways, backing
other provisions in Mr. Graham's measure that try to make the Guantánamo
tribunal process more accountable to the Senate, but opposing the more
exceptional element of the legislation that limits prerogatives of the
judiciary. Nine senators were absent for Thursday's vote.
Mr. Graham said the measure was necessary to eliminate a blizzard of
legal claims from prisoners that was tying up Department of Justice
resources, and slowing the ability of federal interrogators to glean
information from detainees that have been plucked off the battlefields
of Afghanistan and elsewhere.
"It is not fair to our troops fighting in the war on terror to be sued
in every court in the land by our enemies based on every possible
complaint," Mr. Graham said. "We have done nothing today but return
to
the basics of the law of armed conflict where we are dealing with enemy
combatants, not common criminals."
Opponents of the measure denounced the Senate vote as a grave step
backward in the nation's treatment of detainees in the global war on
terror. "This is not a time to back away from the principles that this
country was founded on," Mr. Bingaman said during floor debate.
Senator Arlen Specter of Pennsylvania, chairman of the Judiciary
Committee and one of four Republicans to vote against the measure, said
the Senate was unduly rushing into a major legal shift without enough
debate. "I believe the habeas corpus provision needs to be maintained,"
Mr. Specter said.
A three-judge panel trying to resolve the extent of Guantánamo
prisoners' rights to challenge detentions sharply questioned an
administration lawyer in September when he argued that detainees had no
right to be heard in federal appeals courts.
The panel of the District of Columbia Circuit is trying to apply a 2004
Supreme Court ruling to two subsequent, conflicting decisions by lower
courts, one appealed by the prisoners and the other by the administration.
In its June 28, 2004, decision in Rasul v. Bush, the Supreme Court ruled
6 to 3 that the Guantánamo base was not outside the jurisdiction of
American law as administration lawyers had argued and that the habeas
corpus statute allowing prisoners to challenge their detentions was
applicable.
Under Mr. Graham's measure, Guantánamo prisoners would be able to
challenge only the narrow question of whether the government followed
procedures established by the defense secretary at the time the military
determined their status as enemy combatants, which is subject to an
annual review. The District of Columbia Circuit would retain the right
to rule on that, but not on other aspects of a prisoner's case.
Detainees would not be able to challenge the underlying rationale for
their detention. "If it stands, it means detainees at Guantánamo
Bay
would have no access to any federal court for anything other than very
simple procedural complaints dealing with annual status review," said
Christopher E. Anders, a legislative counsel for the American Civil
Liberties Union. "Otherwise, the federal courts' door is shut."
If the measure is enacted, civil liberties groups said it would appear
to render moot the Supreme Court's decision on Monday to decide the
validity of the military commissions that Mr. Bush wants to try
detainees charged with terrorist offenses to trial. But some legal
experts said the court might be able to move ahead if determined to do so.
Under the Graham amendment, the measure would apply to any application
or action pending "on or after the date of enactment of this act."
Elisa Massimino, Washington director of Human Rights First, said: "The
Senate acted unwisely, and unnecessarily, in stripping courts of
jurisdiction over Guantánamo detainees. Particularly now, as the string
of reports of abuse over the past several years have underscored how
important it is to have effective checks on the exercise of executive
authority, depriving an entire branch of government of its ability to
exercise meaningful oversight is a decidedly wrong course to take."
The Senate vote on Thursday came just days after senators voted, for the
second time in recent weeks, to back a measure by Mr. McCain to prohibit
the use of cruel and degrading treatment against detainees in American
custody.
Vice President Dick Cheney has appealed to Mr. McCain and to Senate
Republicans to grant the C.I.A. an exemption to allow it extra latitude,
subject to presidential authorization, in interrogating high-level
terrorists abroad who might know about future attacks. Mr. McCain said
Thursday that negotiations with the White House on compromise language
were stalemated.
In addition to Mr. Specter, Republicans voting against the bill were
Senators John E. Sununu of New Hampshire, Gordon H. Smith of Oregon, and
Lincoln Chafee of Rhode Island. The five Democrats voting for the bill
were Senators Joseph I. Lieberman of Connecticut, Mary L. Landrieu of
Louisiana, Ben Nelson of Nebraska, Kent Conrad of North Dakota and Ron
Wyden of Oregon.
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