Detainee Bill in Final Stages
White House Appears to Be Winning Wide Legal Latitude

By R. Jeffrey Smith and Charles Babington
Washington Post Staff Writers
Wednesday, September 27, 2006

White House national security adviser Stephen J. Hadley met with Republican senators yesterday in an effort to reach final agreement on legislation that would govern the military trials of terrorism suspects, but they did not resolve a dispute over whether the captives should have access to U.S. courts.

The complex measure, which President Bush has called a top legislative priority, nonetheless appears likely to win approval by the time Congress adjourns at the end of this week. A vote is expected in the House today on a version of the legislation that the White House supports. It was unclear yesterday evening whether Republican leaders would allow any amendments to it.

The Senate-White House negotiations centered on what is known as a "court-stripping" provision that bars U.S. courts from considering habeas corpus filings by detainees over their confinement and treatment. It affirms the Bush administration's assertion that it has an incontestable right to hold persons detained as "unlawful enemy combatants" for the duration of the battle against terrorism.

"Habeas has to be resolved," and it will most likely be addressed on the Senate floor, John W. Warner (R-Va.), chairman of the Senate Armed Services Committee, told reporters after meeting with Hadley. Senate Republican leadership aides said that the floor debate could begin today and that the legislation setting rules for military commissions, as they are known, might be combined with a bill to create a new fence along the U.S.-Mexico border.

Three foes of the habeas corpus provision -- Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), Sen. Patrick J. Leahy (D-Vt.) and Sen. Gordon Smith (R-Ore.) -- introduced yesterday an amendment to overturn the administration-backed provision by allowing foreign nationals in military or CIA custody to challenge the legality of their detentions after one year.

Sen. Lindsey O. Graham (R-S.C.), who supports the suspension of the habeas corpus process, predicted that the Specter amendment "will be defeated, I think, in a bipartisan fashion, with a solid vote." But Graham said he has been exploring a different amendment on the matter, which he declined to describe.

Administration officials have said that the controversial provision is warranted because "unlawful enemy combatants" are not entitled to the same rights as regular soldiers or U.S. citizens; because isolation and the threat of indefinite detention aid U.S. interrogations; and because habeas corpus petitions could obstruct or delay the military trials of detainees.

But human rights groups and defense lawyers have condemned the provision as unconstitutional. They said it could leave detainees "to rot" in jail.

Thirty-one former ambassadors, including 20 who served in Republican administrations, jointly wrote Congress this week that "to eliminate habeas corpus relief for the citizens of other countries who have fallen into our hands cannot but make a mockery" of the administration's efforts to promote democracy. They also said that it would set a precedent that could jeopardize U.S. diplomats and military personnel overseas.

The negotiators also discussed yesterday a recent administration-backed change in the legislation to broaden the definition of potential unlawful enemy combatants in a way that would allow the government to detain and try a wider range of foreign nationals than envisioned earlier.

Other recent changes to the bill aroused controversy yesterday. In one, the administration and its House allies would give the defense secretary wide latitude to depart, without independent judicial scrutiny, from the rules and detainee protections the legislation would create. It would allow him to do so whenever he deems it "practicable or consistent with military or intelligence activities."

Georgetown University law professor Neal K. Katyal, who represented Salim Ahmed Hamdan in a case in which the Supreme Court overturned in June the administration's previous military-trial procedures, said the discretion, as written, is broad enough for the Defense Department to suspend a presumption of innocence for defendants. The new rules "themselves build in all the flexibility the secretary of defense needs to depart massively," Katyal said.

Other defense lawyers criticized yesterday recent changes that make it easier for prosecutors to introduce evidence without challenge and that eliminate defendants' right to examine all the evidence presented against them. The draft bill would, however, preserve defendants' right to respond to that evidence.

Staff researcher Madonna Lebling contributed to this report.

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