Legal residents' rights curbed in detainee bill
By Farah Stockman, Globe Staff | September 28, 2006
WASHINGTON -- A last-minute change to a bill currently before Congress on the rights of prisoners at Guantanamo Bay could have sweeping implications inside the United States: It would strip green-card holders and other legal residents of the right to challenge their detention in court if they are accused of being ``enemy combatants."
An earlier draft of the bill sparked criticism because it removed the rights of Guantanamo Bay detainees to challenge their detentions in federal court. But changes made over the weekend during negotiations between the White House and key Republicans in Congress go even further, making it legal for noncitizens inside the United States to be detained indefinitely, without access to the court system, until the ``war on terror" is over.
It is unclear who initiated the changes. The bill, which also sets up a new system of military trials for terrorist suspects held at Guantanamo Bay, passed the House yesterday and is expected to be voted on in the Senate today, before Congress breaks for midterm elections.
Human rights advocates yesterday lobbied against the bill.
``This would purport to allow the president, after some incident, to round up scores of people -- people who are lawfully here -- and hold them in military prisons with no access to the legal system, whatsoever, indefinitely," said Joe Onek , senior policy analyst at the Open Society Policy Center, a Washington-based advocacy organization
Other last-minute additions to the bill include provisions that would broaden the definition of enemy combatant to include anyone who gives material support to enemies of the United States and its allies, and would prevent detainees who have been released from US custody from suing the US government for torture or mistreatment.
But the part of the bill that worries advocates for immigrants most is the one stating that ``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 by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
``Habeas corpus" is the legal mechanism that gives people the right to ask federal courts to review their imprisonment.
In the original bill, the section banning ``habeas corpus" petitions applied only to detainees being held ``outside the United States," referring to the roughly 450 prisoners held at Guantanamo Bay. But in recent days, the phrase ``outside the United States" was removed.
The White House did not respond to questions asking why the restriction was extended to people in the United States.
But at a press conference after the changes were made, National Security Advisor Stephen Hadley praised the bill as ``a legislative framework that allows us to capture, detain, and prosecute and bring to justice terrorists."
Human-rights activists believe the bill would do far more, including give the president greatly expanded powers to hold people indefinitely.
``What if they had this after Sept. 11 [2001] when they picked up all kinds of folks on immigration charges and material-witness charges and tried them in secret immigration proceedings?" said Jumana Musa, a lawyer with Amnesty International. ``Those people were deported. Now [if the bill passes], they could be detained indefinitely as enemy combatants."
Eugene R. Fidell, president of the National Institute of Military Justice, added that: ``What it means is that certain categories of people are going to be second-raters in our legal system."
``You can't sneeze at the fact that citizenship has got to mean something," Fidell said. ``But if I were a green-card holder, thinking about the other pressures that are being brought to bear on green-card holders, it could make me pretty nervous."
Wartime decisions to hold people perceived as threats have often proved problematic. During World War II, the government held over 100,000 Japanese and Japanese-Americans in internment camps. (When they challenged their internment, the Supreme Court twice ruled against them. Decades later, however, the government acknowledged that the internment was unjustified and apologized.)
Jennifer Daskill , US advocacy director of Human Rights Watch, predicted that the Supreme Court would strike down the provisions in the current bill that would take away access to courts for legal US residents arrested in the United States. Still, she said, it could take years before the court rules on the issue, during which time many people could be imprisoned.
The provision would have an immediate impact on Ali Saleh Kahlah al-Marri , so far the only known ``enemy combatant" held inside the United States.
Marri, a Qatari student arrested in 2001, has been held in a US military brig without charges for four years.
Like hundreds of detainees at Guantanamo Bay, Marri has challenged his detention in federal court; passage of the new law would throw out his case.
Senate Judiciary Committee chairman Arlen Specter , a Pennsylvania Republican, and Senator Patrick Leahy , a Vermont Democrat, have filed an amendment to the Senate bill under which detainees -- both inside Guantanamo Bay and in the United States -- would retain their access to the courts.
But it was unclear last night whether the amendment has enough support to pass. So far, moderate Republicans have not joined Specter and leading Democrats in supporting the amendment.
Senator Susan Collins , a Maine Republican who is considered a moderate, said she would not support Specter's amendment.
``Detainees from Guantanamo have clogged our courts with more than 420 lawsuits challenging everything from their access to the Internet to the quality of their recreation facilities," her office said in a statement that called the lawsuits ``an abuse of our court system."
Collins did not comment on the bill's restriction of rights for non-citizens in the United States.
And trial rights are monkeyed around with, too:
Yahoo!
By ANNE PLUMMER FLAHERTY, Associated Press Writer 45 minutes ago
WASHINGTON - The Senate on Thursday endorsed
President Bush's plans to prosecute and interrogate terror suspects, all but sealing congressional approval for legislation that Republicans intend to use on the campaign trail to assert their toughness on terrorism.
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The 65-34 vote means the bill could reach the president's desk by week's end. The House passed nearly identical legislation on Wednesday and was expected to approve the Senate bill on Friday, sending it on to the White House.
The bill would create military commissions to prosecute terrorism suspects. It also would prohibit some of the worst abuses of detainees like mutilation and rape, but grant the president leeway to decide which other interrogation techniques are permissible.
The White House and its supporters have called the measure crucial in the anti-terror fight, but some Democrats said it left the door open to abuse, violating the U.S. Constitution in the name of protecting Americans.
Twelve Democrats sided with 53 Republicans in voting for the bill. Lincoln Chafee, R-R.I., in a tough re-election fight, joined 32 Democrats and the chamber's lone independent in opposing the bill. Sen. Olympia Snowe (news, bio, voting record), R-Maine, was absent.
Sen. Lindsey Graham (news, bio, voting record), R-S.C., who helped draft the legislation during negotiations with the White House, said the measure would set up a system for treating detainees that the nation could be proud of. He said the goal "is to render justice to the terrorists, even though they will not render justice to us."
Democrats said the Republicans' rush to muscle the measure through Congress was aimed at giving them something to tout during the campaign, in which control of the House and Senate are at stake. Election Day is Nov. 7.
"There is no question that the rush to pass this bill — which is the product of secret negotiations with the White House — is about serving a political agenda," said Sen. Edward Kennedy (news, bio, voting record), D-Mass.
Senate approval was the latest step in the remarkable journey that Bush has taken in shaping how the United States treats the terrorism suspects it has been holding, some for almost five years.
The Supreme Court nullified Bush's initial system for trying detainees in June, and earlier this month a handful of maverick GOP senators embarrassed the president by forcing him to slightly tone down his next proposal. But they struck a deal last week, and the president and congressional Republicans are now claiming the episode as a victory.
While Democrats warned the bill could open the way for abuse, Republicans said defeating the bill would put the country at risk of another terrorist attack.
"We are not conducting a law enforcement operation against a check-writing scam or trying to foil a bank heist," said Sen. Mitch McConnell (news, bio, voting record), R-Ky. "We are at war against extremists who want to kill our citizens."
Approving the bill before lawmakers leave for the elections has been a top priority for Republicans. GOP leaders fought off attempts by Democrats and a lone Republican to change the bill, ensuring swift passage.
By mostly party-line votes, the Senate rejected Democratic efforts to limit the bill to five years, to require frequent reports from the administration on the
CIA's interrogations and to add a list of forbidden interrogation techniques.
The legislation could let Bush begin prosecuting terrorists connected to the Sept. 11 attacks just as voters head to the polls, and let Republicans use opposition by Democrats as fodder for criticizing them during the campaign.
"Some want to tie the hands of our terror fighters," said Sen. Christopher Bond (news, bio, voting record), R-Mo., alluding to opponents of the bill. "They want to take away the tools we use to fight terror, to handcuff us, to hamper us in our fight to protect our families."
Democrats contended the legislation could set a dangerous precedent that might invite other countries to mistreat captured Americans. Their opposition focused on language barring detainees from going to federal court to protest their detention and treatment — a right referred to as "habeas corpus."
"The habeas corpus language in this bill is as legally abusive of rights guaranteed in the Constitution as the actions at
Abu Ghraib, Guantanamo and secret prisons that were physically abusive of detainees," said Sen. Carl Levin (news, bio, voting record), the top Democrat on the Armed Services panel.
Bush went to Capitol Hill Thursday morning, urging senators to follow the House lead and approve the plan.
"The American people need to know we're working together to win the war on terror," he said.
That didn't stop Sen. Arlen Specter (news, bio, voting record), R-Pa., from offering an amendment that would have restored suspects' habeas corpus rights. It was rejected, 51-48.
The overall bill would prohibit war crimes and define such atrocities as rape and torture, but otherwise would allow the president to interpret the Geneva Conventions, the treaty that sets standards for the treatment of war prisoners.
The legislation was in response to a Supreme Court ruling in June that Bush's plan to hold and prosecute terrorists was illegal.
Bush had determined prior to that ruling that his executive powers gave him the right to detain and prosecute enemy combatants. He declared these detainees, being held at Guantanamo Bay prison in Cuba and in secret CIA prisons elsewhere in the world, should not be afforded Geneva Convention protections.
U.S. officials said the Supreme Court ruling threw cold water on the CIA's interrogation program, which they said had been helpful in obtaining valuable intelligence.
Bush was forced to negotiate a new trial system with Congress. For nearly two weeks the White House and rebellious Republican senators — Graham, John McCain of Arizona and John Warner of Virginia — fought publicly over whether Bush's proposed plan would give a president too much authority and curtail legal rights considered fundamental in other courts.
Under the bill, a terrorist being held at Guantanamo could be tried by military commission so long as he was afforded certain rights, such as the ability to confront evidence given to the jury and having access to defense counsel.
Those subject to commission trials would be any person "who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents." Proponents say this definition would not apply to U.S. citizens.
The bill would eliminate some rights common in military and civilian courts. For example, the commission would be allowed to consider hearsay evidence so long as a judge determined it was reliable. Hearsay is barred from civilian courts.
The legislation also says the president can "interpret the meaning and application" of international standards for prisoner treatment, a provision intended to allow him to authorize aggressive interrogation methods that might otherwise be seen as illegal by international courts.
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The House resolution is HR 6166. The Senate bill is S 3930.
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