House Approves Bill on Detainees
253 to 168 Vote Backs Bush on Prosecution Of Terrorism Suspects

By Charles Babington
Washington Post Staff Writer
Thursday, September 28, 2006

The House approved an administration-backed system of questioning and prosecuting terrorism suspects yesterday, setting clearer limits on CIA interrogation techniques but denying access to courts for detainees seeking to challenge their imprisonment at Guantanamo Bay, Cuba, and elsewhere.

The 253 to 168 vote was a victory for President Bush and fellow Republicans. Bush had yielded some ground during weeks of negotiations, but he fully embraced the language that the House approved with support from 34 Democrats and all but seven Republicans.

Senators also began debating the measure yesterday and defeated, along party lines, a Democratic-sponsored amendment that would have expanded detainees' legal rights. Senators predicted that their chamber will approve the legislation today, which would enable Bush to hold a signing ceremony on a high-profile and intensely debated bill about a month before the Nov. 7 elections.

Barring a last-minute snag, the House and Senate action will conclude three months of debate that began in late June, after the Supreme Court struck down the military commissions Bush had established to try people suspected of being members of al-Qaeda. Designated as enemy combatants, such suspects enjoy fewer rights than prisoners of war, and much of the congressional debate centered on which, if any, rudimentary legal rights should apply to them.

The administration was also eager to protect CIA officers from possible prosecution or from lawsuits stemming from their use of aggressive interrogation techniques such as extended sleep deprivation, hypothermia and "waterboarding," which simulates drowning.

Bush is scheduled to meet with GOP senators in the Capitol this morning for a final pep rally before the measure's expected passage. Republicans hope to campaign on the bill as proof of their party's tough stand against terrorists. Many congressional Democrats decided to swallow their misgivings and vote for the bill to avoid being portrayed as less than vigilant against suspects captured in Afghanistan, Iraq and elsewhere. Thirty-four Democrats joined 219 Republicans in supporting the legislation.

"It is outrageous that House Democrats, at the urging of their leaders, continue to oppose giving President Bush the tools he needs to protect our country," said House Majority Leader John A. Boehner (R-Ohio).

Such comments infuriated Democrats, who said they stand second to no one in fighting terrorists but fear the United States is abandoning fundamental principles of fairness. The bill "is really more about who we are as a people than it is about those who seek to harm us," said House Minority Whip Steny H. Hoyer (D-Md.). "Defending America requires us to marshal the full range of our power: diplomatic and military, economic and moral. And when our moral standing is eroded, our international credibility is diminished as well."

After the June 29 Supreme Court ruling, the White House proposed legislation to address the high court's criticisms and still embrace much of its military commission setup and interrogation practices. But a trio of Republican senators forced Bush to modify several points.

The compromise legislation does not seek to narrow U.S. obligations under the Geneva Conventions in the treatment of prisoners, as Bush had hoped. But it would give the executive branch substantial leeway in deciding how to comply with treaty obligations in actions that fall short of "grave breaches" of the conventions.

It would bar military commissions from considering testimony obtained through interrogation techniques that involve "cruel, unusual or inhumane treatment or punishment," which is proscribed by the 5th, 8th and 14th amendments to the U.S. Constitution. But the bar would be retroactive only to Dec. 30, 2005, when Congress adopted the Detainee Treatment Act, sponsored by Sen. John McCain (R-Ariz.), to protect CIA operatives from being prosecuted over interrogation tactics used before then.

Yesterday, Sen. Carl M. Levin (D-Mich.) condemned the loophole, accusing administration officials of trying "to legitimize the mistreatment of detainees and to undermine some of the cornerstone principles of our legal system."

But GOP sponsors said the language is essential to protect well-intentioned CIA officers from vague guidelines. "The Constitution says we will provide for the common defense, not provide for the criminal defense" of enemy combatants, Rep. Louie Gohmert (R-Tex.) said during a rare instance in which both houses debated the same legislation simultaneously.

Some of the fiercest debates focused on whether foreign terrorism suspects should have access to U.S. courts for challenging the legality of their detention, a right known as habeas corpus.

House Republicans blocked Democrats from offering amendments, including one that would have extended the habeas corpus right to detainees. House Judiciary Committee Chairman F. James Sensenbrenner Jr. (R-Wis.) said terrorism suspects have enough rights without habeas corpus, including the right to a lawyer, to be presumed innocent, to cross-examine witnesses and to collect evidence. "Let's bring justice before the eyes of the children and widows of Sept. 11," he implored on the House floor.

But Rep. Jerrold Nadler (D-N.Y.) said: "This is how a nation loses its moral compass, its identity, its values and, eventually, its freedom. . . . We rebelled against King George III for less restrictions on liberty than this." Sen. Patrick J. Leahy (D-Vt.) said the habeas corpus right is so fundamental that it "is un-American" to deny it to detainees held by U.S. forces.

The Senate will vote today on an amendment to grant the habeas corpus right to detainees. Supporters say the Supreme Court would rule the legislation unconstitutional without a habeas corpus provision, but opponents say the House would balk at the amendment.

The legislation loosely defines "cruel or inhuman treatment" of detainees, which would constitute a war crime. The administration said the term should apply to techniques resulting in "severe" physical or mental pain, but lawmakers set the standard at "serious." The abused detainee's symptoms would have to include "serious and non-transitory mental harm, which need not be prolonged."

For lesser offenses barred by the Geneva Conventions -- those falling between cruelty and minor abuse -- the legislation would authorize the president to interpret "the meaning and application" of relevant provisions of the Geneva Conventions. The administration's language would have to be published rather than provided in secret to some lawmakers.

House Speaker J. Dennis Hastert (R-Ill.) praised the legislation, saying Americans should not give foreigners suspected of being enemy combatants the rights that U.S. citizens enjoy. "The Global War on Terror is different from any war we have ever known," he said in a statement. "As a country we must understand that adaptation to these new situations is critical in order to achieve victory over those who seek to hurt us as a nation."

But the Center for Constitutional Rights condemned the bill, saying it would "authorize the indefinite detention of non-citizens without access to courts -- even if they are not charged with any crime."

Staff writers Jonathan Weisman and R. Jeffrey Smith contributed to this report.

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