Many Rights in U.S. Legal System Absent in New Bill

Many constitutional experts say, however, that the bill pushes at the edges of so much settled U.S. law that its passage will not be the last word on America's detainee policies. They predict it will shift the public debate to the federal courts, a forum where the administration has had less success getting its way on counterterrorism policies.

"This is a full-employment act for lawyers," said Deborah Perlstein, who directs the U.S. Law and Security Program at the New York-based nonprofit group Human Rights First.

Former White House associate counsel Bradford A. Berenson, a supporter of the bill and one of the authors of the rules struck down by the Supreme Court, agreed. "Some of the most creative legal minds are going to be devoted to poking holes in this," he said.

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 U.S. 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."

In contrast, Douglas W. Kmiec, a professor of constitutional law at Pepperdine University, said Congress "did reasonably well in terms of fashioning a fair" set of procedures. But Kmiec and many others say they cannot predict how the Supreme Court will respond to the provision barring habeas corpus rights, which he said will leave "a large body of detainees with no conceivable basis to challenge their detentions."

There are other likely flashpoints. In the Supreme Court's June decision overturning previous administration policies, four members of the court who joined the majority opinion said conspiracy is not a war crime. The new bill says it is.

Georgetown University law professor Neal Katyal said the bill's creation of two systems of justice -- military commissions for foreign nationals and regular criminal trials for U.S. citizens -- may violate the Constitution's 14th Amendment, which requires equal protection of the laws to anyone under U.S. jurisdiction.

"If you're an American citizen, you get the Cadillac system of justice. If you're a foreigner or a green-card holder, you get this beat-up-Chevy version," he said.