Senate passes controversial detainee bill

The US Senate approved contentious legislation on Sept. 29 to impose George W. Bush's proposals for the interrogation and trial of foreign terror suspects, setting new and far-reaching rules on how such prisoners may be treated. After a heated debate, the Senate eventually passed the bill, called the Military Commissions Act, by a 65-34 majority, a day after the House of Representatives passed an almost identical measure. The bill sanctions the use of special military courts to try suspects being held at Guantánamo Bay, and would allow the use of some evidence obtained by harsh interrogation methods. Crucially, it also eliminates the right of habeas corpus, stopping foreign prisoners from going to a federal court to challenge their own detention. The bill also enables evidence found in the US or abroad to be taken without a search warrant. In one concession, defendants would, however, be given access to the evidence being used to prosecute them, even when it is classified. The new legislation forbids US guards from inflicting treatment which could constitute a war crime–including torture, rape, murder and any act intended to cause "serious" physical or mental pain–but gives the president the right to define and decide which other techniques can be used short of that. The CIA would be allowed to continue its secret prisons program. Human rights groups have expressed concern that harsh techniques such as sleep deprivation and induced hypothermia can be used under the new law. A last-minute change to the bill 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 Guantánamo Bay detainees to challenge their detentions in federal court. But changes made 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, another move that has worried human rights advocates. "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 Guantánamo 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. Jennifer Daskill , US advocacy director of Human Rights Watch, predicted that the Supreme Court would strike down the provisions in the 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. Anticipating court challenges, the administration attempted to make the bill bulletproof by including provisions that would sharply restrict judicial review and limit the application of international treaties–signed by Washington–that govern the rights of wartime detainees. The bill also contains blunt assertions that it complies with US treaty obligations. University of Texas constitutional law professor Sanford V. Levinson described the bill in an internet posting as the mark of a "banana republic." Yale Law School Dean Harold Koh said that "the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it's not clear that most of the members understand what they've done." Taken as a whole, the law will give the president more power over terrorism suspects than he had before the Supreme Court decision this summer in Hamdan v. Rumsfeld that undercut more than four years of White House policy. It does, however, grant detainees brought before military commissions limited protections initially opposed by the White House. The bill does not just allow the president to determine the meaning and application of the Geneva Conventions; it also strips the courts of jurisdiction to hear challenges to his interpretation. In very specific ways, the bill is a rejoinder to the Hamdan ruling, in which several justices said the absence of Congressional authorization was a central flaw in the administration's approach. The new bill solves that problem, legal experts said. Over all, the legislation reallocates power among the three branches of government, taking authority away from the judiciary and handing it to the president. Bruce Ackerman, a critic of the administration and a professor of law and political science at Yale University, sharply criticized the bill but agreed that it strengthened the White House position. "The president walked away with a lot more than most people thought," Ackerman said. He said the bill "further entrenches presidential power" and allows the administration to declare even a US citizen an unlawful combatant subject to indefinite detention.