[Dialogue] Senate Approves Limiting Rights of U.S. Detainees

[Harry Wainwright]

Colleagues, no comment. Peace, Harry 
  _____  


November 11, 2005

Senate Approves Limiting Rights of U.S. Detainees 

By ERIC SCHMITT
<http://query.nytimes.com/search/query?ppds=bylL&v1=ERIC%20SCHMITT&fdq=19960
101&td=sysdate&sort=newest&ac=ERIC%20SCHMITT&inline=nyt-per> 

WASHINGTON, Nov. 10 - The Senate voted Thursday to strip captured "enemy
combatants" at Guantánamo Bay, Cuba
<http://topics.nytimes.com/top/news/international/countriesandterritories/cu
ba/index.html?inline=nyt-geo> , 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
<http://topics.nytimes.com/top/news/international/countriesandterritories/un
itedstates/index.html?inline=nyt-geo>  courts. 

The vote, 49 to 42, on an amendment to a military budget bill by Senator
Lindsey Graham, Republican of South Carolina
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/southcarolina/index.html?inline=nyt-geo> , 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
<http://topics.nytimes.com/top/reference/timestopics/people/m/john_mccain/in
dex.html?inline=nyt-per>  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
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/newmexico/index.html?inline=nyt-geo>  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
<http://topics.nytimes.com/top/news/international/countriesandterritories/af
ghanistan/index.html?inline=nyt-geo>  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
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/pennsylvania/index.html?inline=nyt-geo> , 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
<http://topics.nytimes.com/top/reference/timestopics/people/c/dick_cheney/in
dex.html?inline=nyt-per>  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
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/newhampshire/index.html?inline=nyt-geo> , Gordon H. Smith of Oregon
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/oregon/index.html?inline=nyt-geo> , and Lincoln Chafee of Rhode Island
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/rhodeisland/index.html?inline=nyt-geo> . The five Democrats voting for
the bill were Senators Joseph I. Lieberman
<http://topics.nytimes.com/top/reference/timestopics/people/l/joseph_i_liebe
rman/index.html?inline=nyt-per>  of Connecticut
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/connecticut/index.html?inline=nyt-geo> , Mary L. Landrieu of Louisiana
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/louisiana/index.html?inline=nyt-geo> , Ben Nelson of Nebraska
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/nebraska/index.html?inline=nyt-geo> , Kent Conrad of North Dakota
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/northdakota/index.html?inline=nyt-geo>  and Ron Wyden of Oregon. 

*	Copyright
<http://www.nytimes.com/ref/membercenter/help/copyright.html>  2005 The New
York Times Company <http://www.nytco.com/> 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://wedgeblade.net/pipermail/dialogue_wedgeblade.net/attachments/20051111/5a60c418/attachment.htm