By R. Jeffrey Smith
Washington Post Staff Writer
Monday, October 16, 2006
The news reached Democrats working on the military commissions bill in the Senate cloakroom the morning of Sept. 27. Sen. Arlen Specter (R-Pa.), a sponsor of two amendments giving detainees a right to challenge their detention or treatment in federal court, had decided to bring the more extreme amendment to a vote.
Democrats had lined up behind Specter because the Judiciary Committee chairman told them he shared their antipathy to language in the bill stripping detainees of habeas corpus rights. But the amendment Specter put forward was defeated 51 to 48, allowing the bill to win congressional approval without change. It handed the White House an important pre-election victory.
The last-minute maneuvering before the Sept. 28 vote remains a hot topic of debate among lobbyists, lawmakers and staff members. They are wondering if Specter, as several Judiciary Committee staff members privately asserted at the time, was pressured into discarding a less extreme and more politically palatable amendment at the Bush administration's request, in favor of an alternative more likely to be defeated.
Specter says that he was not, and that he has no reason to believe the less extreme alternative he sponsored but withheld from a vote -- allowing detainees limited access to the courts -- might have won. Senate Majority Leader Bill Frist (R-Tenn.) backs Specter's account, but some other sources on Capitol Hill dispute it.
The stakes were considerable: The White House had been waging an intense three-month effort, set off by an adverse Supreme Court decision in June, to win explicit congressional support for the right to detain indefinitely, and without guaranteed recourse to the courts, people -- including U.S. citizens -- who are designated as "unlawful enemy combatants."
The White House was keen to secure the bill's speedy passage, because officials were worried that Congress would be more reluctant to strip detainees of their rights after the Nov. 7 midterm elections. Keeping the Senate bill free of amendments was key to avoiding a wrangle with the House, which had passed the administration-backed version and was set to leave for a recess Sept. 29.
Questions about Specter's role in the last-minute maneuvering arose in part because he had taken a maverick position before -- and then backed President Bush's policy on the floor or in his votes.
Specter said in December, for example, that he had "no doubt" the administration's warrantless surveillance program for terrorism suspects was inappropriate and should not be condoned. This summer, he sponsored a bill to legalize the program by providing for limited judicial review. Since 2001, Specter's support for Bush initiatives in Congress has fluctuated between 85 and 89 percent, according to Congressional Quarterly.
On the detainee bill, Frist had make clear his desire to ensure that no amendment passed, spokeswoman Amy Call said. She said "we were worried about both" of Specter's amendments.
The more extreme version would have deleted the bill's suspension of habeas corpus rights. The less extreme alternative, which Specter co-sponsored with Sens. Patrick J. Leahy (D-Vt.) and Gordon Smith (R.-N.H.), would have allowed detainees to file a single habeas corpus petition after a year of detention.
"The compromise looked like it had a strong chance of success," and it would have given detainees at least "a one-chance shot to appeal their innocence," said Jennifer Daskal, U.S. advocacy director for Human Rights Watch. "Rather than doing the right thing and allowing the amendment to go forward, the strategy seems to have been to put forward an amendment doomed to defeat," she said.
Frist was so determined to help the White House that on Sept. 26, he told a group of GOP lawmakers at a private meeting, in the presence of White House national security adviser Stephen Hadley, that no amendment that could pass would be allowed to come to a vote, according to one person present. Call declined to comment on a private meeting.
Although Frist did not say so then, staffers told others they were nervous that Maine's two Republican senators, Susan Collins and Olympia J. Snowe, and Sen. Chuck Hagel (R-Neb.) might support Specter's less extreme amendment.
Around the time of the vote, several members of the Judiciary Committee staff circulated reports that Frist and the White House pressured Specter into doing the administration's bidding on the habeas corpus amendment. The staffers said Specter was told that no floor time would be available to debate the milder alternative, according to five legislative aides and lobbyists following the bill, who said in separate interviews that they heard this account directly from the staff.
In a telephone interview, Specter disputed that assertion and said he was unaware that more Republicans might have supported the less extreme amendment. Frist "wanted me to limit it to one amendment . . . he wanted to get the bill finished," Specter said. But "he did not tell me" which bill to bring to the floor.
Specter said the less extreme amendment he sponsored "doesn't appeal to me for many reasons." Some habeas corpus petitions succeed on the second try, he said, an option it would not have allowed. "I know they were very nervous about the one that I offered. . . . I could not have pressed an amendment any more strenuously than I did that one," he said. Call said Frist had not told Specter which amendment to offer.
Would the alternative amendment have attracted more GOP support? A Republican aide directly familiar with Hagel's position confirmed that the senator supported the less extreme alternative.
Specter said he did not speak to Hagel before the vote but telephoned him in Vietnam after being interviewed by The Washington Post. He said Hagel told him otherwise. Asked to clarify the discrepancy, Hagel spokesman Mike Buttry said the senator was "not going to talk about hypotheticals."
Six legislative aides and lobbyists separately quoted an aide to Collins as saying at the time that the senator would have supported the alternative amendment, providing the second vote needed to ensure its success. Asked about the statements, Collins's spokeswoman, Jen Burita, said that "we don't know how she would have voted."
Spokesmen for two other senators who voted with the administration, Snowe and Ben Nelson (D-Neb.), also declined to say if they would have supported the less extreme alternative.
Four Democratic lawmakers put forward amendments of their own that they knew would not attract enough GOP support to win. They would have required periodic reports on detainees held in CIA custody, closed the special military court system in 2011, or required U.S. notification of other countries that their officials would be prosecuted for extreme detainee abuses.
"Sometimes you offer an amendment because that's what you believe in," said an aide to one Democrat.
But for at least some Democrats involved in lobbying on the bill, the defeat of these amendments -- plus Specter's -- was not entirely an unhappy result. Some lawyers representing detainees told lawmakers before the vote that they were convinced the Supreme Court would strike down Bush's version of the bill.
They argued against a compromise -- such as Specter's unoffered amendment -- on grounds that it could make the outcome more difficult for the court to reject, a senior Democratic aide said. "We were hearing from some of the constitutional experts that . . . it is better to leave the pig ugly than put lipstick on it," the aide said, explaining why Democrats did not propose a habeas corpus amendment that might have won.
Those interviewed said they doubt a challenge to the new law -- once it is signed by Bush -- could be decided by the Supreme Court in less than a year. That leaves hundreds of suspects now incarcerated without legal recourse during that period, and potentially far beyond it.