After a long and bitter dispute with Congress over the rights of suspected terrorists and their interrogation, President Bush emerged victorious Thursday when the Senate approved a compromise bill to set up military tribunals to try detainees.
The 65-34 vote, following House approval on Wednesday, gave the president the legal authority he needed to prosecute accused terrorists as well as the political tool he sought to boast that his administration would do a better job of keeping Americans safe.
Though the House will have to pass the bill again Friday because of minor technical differences with the Senate, Bush stood ready to sign it next week and begin the process of trying detainees held at Guantanamo Bay, Cuba.
Senators engaged in a stirring debate Thursday about fundamental American rights and whether Congress was too easily departing from them to bring those suspected as terrorists to justice in the Sept. 11 attacks and other acts of terror.
“This is not only a bad bill,” said Sen. Patrick Leahy (D-Vt.). “This is a dangerous bill.”
But Republicans said the bill only creates a procedure for trying suspected terrorists and detainees and would not harm the rights of ordinary Americans. “We are at war against extremists who want to kill our citizens,” said Sen. Mitch McConnell (R-Ky.).
While creating military commissions, the measure would prohibit abuses of detainees that violated standards of the Geneva Conventions. But the president would have flexibility in determining the interrogation techniques that could be used, as long as such acts fell short of “grave breaches” of abuse barred by the conventions.
Military commissions could not consider testimony obtained by “cruel, unusual or inhumane treatment or punishment” prohibited by the U.S. Constitution, but to protect CIA operatives for their past actions, this ban would be retroactive only to Dec. 30, 2005, when Congress adopted the first detainee treatment act.
How much political mileage the president will receive from his legislative victory remains to be seen. Some analysts said it would be limited, at best, as Bush campaigns for Republicans this fall, with GOP control of Congress at stake on Nov. 7.
Thomas Mann, a political analyst at the Brookings Institution, said the Iraq war and an intelligence report suggesting the conflict is feeding terrorism “will continue to attract media and public attention. In other words, the detainee bill is unlikely to ward off a serious electoral loss for the GOP in the midterm elections.”
Sen. Barack Obama (D-Ill.), who voted against the legislation along with Sen. Dick Durbin (D-Ill.), lamented that politics had entered the picture. In the campaign, he said, “there will be 30-second attack ads and negative mail pieces, and we will be criticized as caring more about the rights of terrorists than the protection of Americans. And I know that the vote before us was specifically designed and timed to add more fuel to the fire.”
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Obama said politics won the day, but added that the bill does not give a day in court “to the innocent people we may have accidentally rounded up and mistaken for terrorists, people who may stay in prison for the rest of their lives.” He favored a losing amendment by Sen. Robert Byrd (D-W.Va.) to put a five-year expiration date on the law.
In all, 12 Democrats voted for the measure, with Sen. Lincoln Chafee of Rhode Island the lone Republican opponent.
Bush fought hard to get the bill approved, compromising with three key GOP senators, including Sen. John McCain (R-Ariz.), to ensure that protections in the Geneva Conventions against torture would apply to detainees. The president even went to Capitol Hill early Thursday to press his case for approval. Though some Democrats and other critics said the bill endangered constitutional protections, Bush later said that the legislation was needed to protect the American people.
“That starts with making sure those responsible for defending you have all the necessary tools to do so,” he said. “We are a nation at war. I wish I could report differently, but you need to have a president who sees the world as it is, not the way somebody hopes it would be.”
The need for legislation authorizing military commissions arose in June after the Supreme Court, ruling in the case of Yemeni detainee Salim Hamdan, said the Bush administration could not use the specialized military trials without specific congressional authorization.
Critics said the legislation is fatally flawed because it overly restricts detainees’ rights. They predicted it would wind up back before the high court.
The Senate rejected several amendments, including one supported by Sen. Arlen Specter (R-Pa.), chairman of the Senate Judiciary Committee, that would have guaranteed detainees the right to go to civilian courts and assert their habeas corpus rights against unlimited detention without charges being placed against them.
Specter called it “unthinkable” that Congress would give up habeas corpus rights that go back 800 years, but Sen. Lindsey Graham (R-S.C.) responded, “I don’t believe judges should be making military decisions in a time of war.” Specter’s amendment lost 51-48.
Lawyers defending so-called enemy combatants said that stripping detainees of habeas corpus rights leaves the president with too much power.
Jonathan Hafetz, of New York’s Brennan Center for Justice, said, “It eliminates the most fundamental check on unlawful executive conduct.” He predicted the legislation would be found unconstitutional.
Specter said access to courts is necessary because some of those swept up by U.S. forces are innocent and deserve a chance to prove it without languishing for years, as has been the case with some at Guantanamo. .
But opponents said his amendment would clog the courts with frivolous filings and allow terrorists to maneuver to evade accountability.
The legislation’s rules for the commission trials are “better by a degree” than the previous guidelines, but still leave open the possibility that a defendant could be convicted by unreliable evidence obtained by coercion, said Navy Lt. Cmdr. Charles Swift, an attorney for Hamdan.
Swift said military judges would have too much discretion to permit tainted evidence. “It’s absolutely dependent on individuals rather than on clear rules of law,” he said.
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Highlights in measure approved by Senate
Highlights of legislation on the treatment and prosecution of terrorist suspects the Senate approved Thursday. The House passed a nearly identical measure Wednesday.
Rules for a military commission
– A defendant would be assigned a military defense counsel and could also retain civilian counsel.
– The commission could determine the punishment, including a death sentence.
– Statements obtained by torture would not be admissible as evidence.
– Statements obtained using interrogation methods that violate a 2005 ban on “cruel, inhuman or degrading treatment” would be admissible as evidence if they were taken before the ban went into effect and a judge, appointed under rules set by the secretary of defense, found the statements to be reliable and would serve the “interests of justice.”
– A defendant would be allowed to examine and respond to evidence given to a jury. If classified information were needed for prosecution, an unclassified summary would be provided.
– If an unclassified substitute was not available, the government could drop the charges, but is not required to release the combatant.
Who is covered
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– The system would apply to “unlawful enemy combatants,” defined as people who have engaged in terrorism or who have knowingly supported terrorism against the U.S. or its allies.
Interrogation techniques
– Specific war crimes are outlined, including torture, cruel or inhuman treatment, murder, mutilation or maiming, serious bodily injury, sexual abuse, rape and biological experiments.
– The president would not be allowed to authorize any interrogation technique that amounted to a war crime.
– The president could “interpret the meaning and application” of Geneva Convention standards applied to less severe interrogation procedures. Such a provision is intended to allow him to authorize methods that might otherwise be seen as illegal by international courts.
— Andrew Zajac