Senate Approves Limiting Rights of U.S. Detainees 

ERIC SCHMITT / New York Times 11nov2005

[Many articles below]

	Same Shit. . .	Different Day

WASHINGTON, Nov. 10 — 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.

source:http://www.nytimes.com/2005/11/11/politics/11detain.html?pagewanted=print 11nov2005

Democrats Provided Edge on Detainee Vote

ERIC SCHMITT / New York Times 12nov2005

WASHINGTON, Nov. 11 - Democrats who had voted previously to prohibit abusive treatment of detainees in American custody provided the margin of victory on Thursday for a Republican-backed measure that would deny prisoners at Guantánamo Bay, Cuba, the right to challenge their detention in federal courts.

Four of the five Democrats who supported the provision to strip detainees at Guantánamo of the legal tool the Supreme Court gave them to appeal their incarcerations said on Friday that they drew the line at allowing the prisoners unfettered access to United States courts to challenge the underlying rationale for their detention. The Senate approved the measure, an amendment to a military budget bill, 49 to 42.

"A foreign national who is captured and determined to be an enemy combatant in the world war on terrorism has no more right to a habeas corpus appeal to our courts than did a captured soldier of the Axis powers during World War II," Senator Joseph I. Lieberman, Democrat of Connecticut, said in a statement.

Senator Kent Conrad, Democrat of North Dakota, said in a telephone interview that retired soldiers told him at a Veterans Day lunch in Fargo on Friday that they supported Senator John McCain's proposed ban on cruel and degrading treatment of prisoners but opposed giving detainees at Guantánamo Bay broader leeway to United States courts.

"I don't think giving enemy combatants access to the federal court system is a precedent we want to set," Mr. Conrad said.

Spokesmen for two other Senate Democrats who voted for the measure, Mary L. Landrieu of Louisiana and Ben Nelson of Nebraska, made similar statements. "He thinks they should stay in the military tribunal system, and if that system is broken, we should fix it, not move them out of it," said David DiMartino, a spokesman for Senator Nelson.

The vote on the measure, written by Senator Lindsey Graham, Republican of South Carolina, opened a window this week into the complicated Capitol Hill politics of setting the rules and procedures for how the nation treats detainees and adjudicates their grievances in the global war on terror.

The vote also came at a time when the White House and Mr. McCain are locked in tense negotiations over the language of his provision, which has twice passed the Senate in recent days and is now a critical sticking point in the House-Senate conference committee deciding the fate of a $445 billion military spending bill.

Senate Democrats led by Jeff Bingaman of New Mexico are gearing up over the weekend to launch a counteroffensive early next week to strike or at least soften the part of Mr. Graham's measure that bars Guantánamo prisoners from challenging their incarceration by petitioning in civilian court for a writ of habeas corpus.

Mr. McCain issued a statement Friday explaining his vote in support of Mr. Graham's amendment as a way to rid federal courts of petitions from prisoners on everything from the delivery of mail to the type of food allowed. But he also hinted that he might support a compromise next week.

"Based on ongoing discussions, it is entirely possible that the current version of the amendment will be modified to address concerns about lawful treatment and the scope of independent appeals," Mr. McCain said.

Josh Kardon, chief of staff to Senator Ron Wyden of Oregon, the fifth Democrat to vote for Mr. Graham's measure, suggested that Mr. Wyden was also looking for a compromise to make the Guantánamo tribunal process more accountable to the Senate and "ensure the fair and humane treatment of detainees."

Yet the prospects of eliminating or modifying Mr. Graham's measure are problematic. Seven of the nine senators who were absent for Thursday's vote are Republicans who will probably back his original version next week.

The two moderate Republicans from Maine, Olympia J. Snowe and Susan Collins, who voted for Mr. Graham's measure, both indicated strong support Friday for preserving the provision as is, although aides said no final decisions would be made until senators saw details of Mr. Bingaman's proposal.

"Senator Graham's amendment complements Senator McCain's amendment," Ms. Collins said in a statement. "At the same time, his amendment prevents detainees who are not U.S. citizens from filing habeas corpus lawsuits in federal courts."

Antonia Ferrier, a spokeswoman for Ms. Snowe, characterized her boss's concerns this way: "Do we need all those lawyers going down there to hear their complaints? It seems a little extreme to her. After all, we're talking about enemy combatants."

If approved in its current form by both the Senate and the House, which has not yet considered it but where approval is considered likely, the measure would nullify a June 2004 Supreme Court opinion that detainees had a right to challenge their detentions in court. Nearly 200 such petitions have been filed so far and are working their way through the federal court system.

A group of legal scholars, including Judith Resnick of Yale Law School, David Shapiro and Frank Michelman of Harvard Law School, and Burt Neuborne of New York University Law School, were circulating a letter on Friday urging senators to reject Mr. Graham's measure.

"The Graham amendment embodies an effort to alter fundamental precepts of our constitutional order," the letter said. "It consigns the protection of fundamental human liberties to unilateral executive determination."

As the debate intensifies next week over the Graham measure, a confrontation will also be brewing over Mr. McCain's provision. Vice President Dick Cheney asked Senate Republicans at their weekly private luncheon last week for the Central Intelligence Agency to be granted an exemption that would allow it extra latitude, subject to presidential authorization, in interrogating high-level terrorists abroad who might have knowledge about future attacks. That effort went nowhere.

This week, while Mr. Cheney was pheasant hunting with friends in South Dakota, President Bush's national security adviser, Stephen J. Hadley, opened negotiations with Mr. McCain, which so far have failed to break the impasse.

source: http://www.nytimes.com/2005/11/12/national/nationalspecial3/12detain.html?pagewanted=print 11nov2005

Vote to Strip Rights of Guantanamo Prisoners May be Reconsidered

FRANK DAVIES / Knight Ridder Newspapers 11nov2005

WASHINGTON - For almost eight centuries the "great writ" of habeas corpus has been a bedrock principle of English and American law, from the Magna Carta to today's jails and courts. It's the means for a prisoner to contest his imprisonment before a judge.

That's one reason legal experts were stunned when the Senate, after an hour of debate, voted Thursday to overturn the Supreme Court's extension of habeas corpus protection to 500-plus detainees at the Guantanamo Bay naval base in Cuba.

Opponents vowed Friday to fight the measure, and negotiators on the issue said the Senate may reconsider it early next week. The White House, which previously has opposed oversight of Guantanamo by Congress and the courts, supports the Senate action, spokeswoman Jeanie Mamo said Friday.

Under the provision, proposed by Sen. Lindsey Graham, R-S.C., suspected terrorists held at Guantanamo no longer would be allowed to challenge their detentions in federal court. Most of the detainees were captured in Afghanistan or Pakistan, and many have been held for almost four years without charges.

The provision would reverse a 2004 Supreme Court decision that held that the detainees have the right to sue. Almost 300 detainees have filed petitions in U.S. district court in Washington since.

The Graham proposal also would block Monday's Supreme Court decision to hear some detainees' challenges to military trials set to be held at Guantanamo. It also would stop a case now being considered by the U.S. Court of Appeals on how habeas corpus cases should be handled.

In a brief interview Thursday after the 49-42 vote, Graham said his proposal was intended "to correct the balance" in how terror suspects should be treated - as enemy combatants, not as potential criminal defendants. He said the action was needed because Congress' failure to set legal procedures for dealing with the detainees had forced the courts to step in.

"We've been chicken, to be honest, but now we're trying to bring some clarity to the legal confusion," said Graham. He said his proposal is part of a package with Sen. John McCain's amendment - adopted by the Senate last month - to ban cruel and inhumane treatment of prisoners.

Many legal experts said the reach of Graham's proposal was breathtaking.

The Senate is "trying to reverse a Supreme Court case of great magnitude and scuttle another one," said Scott Silliman, a former Air Force lawyer who heads Duke University's Center on Law, Ethics and National Security. "This is momentous."

Even proponents of the administration's position that Congress and the courts should stay out of the detainee issue expressed surprise.

"Stripping jurisdiction from the court after they have decided is far-reaching and, I think, premature," said Lee Casey, a Washington attorney who worked in the administrations of Presidents Ronald Reagan and George H.W. Bush. "Congress can override the Supreme Court, but in this case I don't consider it the right thing to do."

Opponents are scrambling to overturn the Senate vote. Sen. Jeff Bingaman, D-N.M, is planning an amendment that would remove the habeas corpus provision from Graham's proposal, and the Senate may take that up Monday.

John Hutson, a retired rear admiral and former judge advocate general of the Navy, is rounding up signatures from about 60 former officers who oppose the proposal.

The National Institute of Military Justice, a nonpartisan legal group, is also opposing the measure.

Opponents described the battle in dramatic terms.

"The conscience of our nation is up for grabs," said Michael Ratner, whose Center for Constitutional Rights was the first group to challenge the Guantanamo detentions.

source: http://www.mercurynews.com/mld/mercurynews/news/politics/13146110.htm 11nov2005

Senate Strips Guantanamo Detainees of Right to Sue

JOHN RILEY / Newsday 11nov2005

The Senate voted last night to strip away the right of war-on-terror prisoners held at the military's Guantanamo Bay jail in Cuba to challenge their detentions in court.

The unusual provision, passed by a 49-42 vote, would reverse a Supreme Court ruling last year that permitted inmates to file habeas corpus petitions, triggering hundreds of lawsuits from prisoners who said they were being held with no basis.

"There has never been a time in our military history where an enemy combatant or prisoner of war has been allowed access to federal court to bring lawsuits against the people they are fighting," said Sen. Lindsay Graham (R-S.C.), who sponsored the provision.

But rights groups quickly protested, arguing that eliminating court oversight of the detentions would leave prisoners with no hope of fair hearings and further mar the U.S. image overseas, already battered by prisoner abuse scandals.

"This is one of the worst things the Senate has ever done," said Gita Gutierrez, a lawyer with New York's Center for Constitutional Rights, who has been coordinating prisoner lawsuits. "On the back of a cocktail napkin they have tossed aside protections of individual liberty that have been in existence for centuries."

Graham's provision, passed with votes from 45 Republicans and four Democrats, will be added to the Defense Authorization Bill, which the Senate is expected to pass next week. Opponents said they expected an effort to reverse the vote.

The Defense Authorization Bill already contains another controversial provision sponsored by Sen. John McCain (R-Ariz.) prohibiting cruel or inhumane treatment of detained terror suspects and establishing standards for interrogation.

Graham, an Air Force lawyer, supports that provision, but the Bush administration has threatened to veto any bill with those restrictions on its detention and interrogation policies, arguing that intelligence agencies need greater latitude.

Graham said yesterday that his bill eliminating habeas corpus challenges would, at the same time, provide for reforms that would make military hearings fairer to detainees and give prisoners a right to have a military determination that should be reviewed by the U.S. Court of Appeals for the District of Columbia.

source: http://www.newsday.com/news/nationworld/world/ny-wohabe114507579nov11,0,6972229.story?coll=ny-worldnews-headlines 11nov2005

US Senate Votes to Bar Terror Suspects’ Challenges

Daily Times (Pakistan) 12nov2005

WASHINGTON: The US Senate has passed a measure that would prevent terrorist suspects held at Guantanamo Bay, Cuba from challenging their detention in US courts, which the US Supreme Court allowed last year.

Sponsored by Republican Senator Lindsey Graham, the measure - an amendment to a military budget bill - was approved Thursday by a 49-42 vote. It will only become law if the bill is passed by both houses of Congress.

Graham measure, which comes at a time the US government’s treatment of imprisoned terrorist suspects is under fire from US lawmakers, would deny Guantanamo prisoners the right to legal recourse if it becomes law.

It would nullify a July 28, 2004, Supreme Court ruling that allowed US courts to hear appeals from foreign detainees held as enemy combatants at Guantanamo, most of whom - there are some 600 from 42 countries - have been held without charge and access to court.

Before the vote, Graham said that while he was against the mistreatment of prisoners in US jails, his measure was crucial in the US fight against international terrorism.

“If we don’t rein in prisoner abuse, we’re going to lose the war, but if we don’t rein in legal abuse by prisoners, we’re going undermine our ability to protect ourselves,” the Senator for South Carolina told his colleagues.

“Do not give the terrorists, the enemy combatants, the people who blow up folks at weddings, who fly airplanes into the twin towers, the ability to sue our own troops all over the country for any and everything,” he added.

“Hundreds of hideous petitions will be clogging the US courts,” added Republican Senator for Arizona Jon Kyl in support of Graham’s measure.

Opposers to the amendment included Judiciary Committee chairman Arlen Specter, who felt Graham’s proposal was the wrong response to the legal imbroglio surrounding the US government’s classification of detained foreign terrorist suspects as enemy combatants. afp

source: http://www.dailytimes.com.pk/default.asp?page=2005%5C11%5C12%5Cstory_12-11-2005_pg4_8 11nov2005