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Democrats Provided Edge on Detainee Vote
By ERIC SCHMITT
11/12/05 "New
York Times" -- -- WASHINGTON, Nov. 11 - Democrats who
had voted previously to prohibit abusive treatment of detainees in
American custody provided the margin of victory on Thursday for a
Republican-backed measure that would deny prisoners at Guantánamo
Bay, Cuba, the right to challenge their detention in federal courts.
Four of the five Democrats who supported the provision to strip
detainees at Guantánamo of the legal tool the Supreme Court gave
them to appeal their incarcerations said on Friday that they drew
the line at allowing the prisoners unfettered access to United
States courts to challenge the underlying rationale for their
detention. The Senate approved the measure, an amendment to a
military budget bill, 49 to 42.
"A foreign national who is captured and determined to be an enemy
combatant in the world war on terrorism has no more right to a
habeas corpus appeal to our courts than did a captured soldier of
the Axis powers during World War II," Senator Joseph I. Lieberman,
Democrat of Connecticut, said in a statement.
Senator Kent Conrad, Democrat of North Dakota, said in a telephone
interview that retired soldiers told him at a Veterans Day lunch in
Fargo on Friday that they supported Senator John McCain's proposed
ban on cruel and degrading treatment of prisoners but opposed giving
detainees at Guantánamo Bay broader leeway to United States courts.
"I don't think giving enemy combatants access to the federal court
system is a precedent we want to set," Mr. Conrad said.
Spokesmen for two other Senate Democrats who voted for the measure,
Mary L. Landrieu of Louisiana and Ben Nelson of Nebraska, made
similar statements. "He thinks they should stay in the military
tribunal system, and if that system is broken, we should fix it, not
move them out of it," said David DiMartino, a spokesman for Senator
Nelson.
The vote on the measure, written by Senator Lindsey Graham,
Republican of South Carolina, opened a window this week into the
complicated Capitol Hill politics of setting the rules and
procedures for how the nation treats detainees and adjudicates their
grievances in the global war on terror.
The vote also came at a time when the White House and Mr. McCain are
locked in tense negotiations over the language of his provision,
which has twice passed the Senate in recent days and is now a
critical sticking point in the House-Senate conference committee
deciding the fate of a $445 billion military spending bill.
Senate Democrats led by Jeff Bingaman of New Mexico are gearing up
over the weekend to launch a counteroffensive early next week to
strike or at least soften the part of Mr. Graham's measure that bars
Guantánamo prisoners from challenging their incarceration by
petitioning in civilian court for a writ of habeas corpus.
Mr. McCain issued a statement Friday explaining his vote in support
of Mr. Graham's amendment as a way to rid federal courts of
petitions from prisoners on everything from the delivery of mail to
the type of food allowed. But he also hinted that he might support a
compromise next week.
"Based on ongoing discussions, it is entirely possible that the
current version of the amendment will be modified to address
concerns about lawful treatment and the scope of independent
appeals," Mr. McCain said.
Josh Kardon, chief of staff to Senator Ron Wyden of Oregon, the
fifth Democrat to vote for Mr. Graham's measure, suggested that Mr.
Wyden was also looking for a compromise to make the Guantánamo
tribunal process more accountable to the Senate and "ensure the fair
and humane treatment of detainees."
Yet the prospects of eliminating or modifying Mr. Graham's measure
are problematic. Seven of the nine senators who were absent for
Thursday's vote are Republicans who will probably back his original
version next week.
The two moderate Republicans from Maine, Olympia J. Snowe and Susan
Collins, who voted for Mr. Graham's measure, both indicated strong
support Friday for preserving the provision as is, although aides
said no final decisions would be made until senators saw details of
Mr. Bingaman's proposal.
"Senator Graham's amendment complements Senator McCain's amendment,"
Ms. Collins said in a statement. "At the same time, his amendment
prevents detainees who are not U.S. citizens from filing habeas
corpus lawsuits in federal courts."
Antonia Ferrier, a spokeswoman for Ms. Snowe, characterized her
boss's concerns this way: "Do we need all those lawyers going down
there to hear their complaints? It seems a little extreme to her.
After all, we're talking about enemy combatants."
If approved in its current form by both the Senate and the House,
which has not yet considered it but where approval is considered
likely, the measure would nullify a June 2004 Supreme Court opinion
that detainees had a right to challenge their detentions in court.
Nearly 200 such petitions have been filed so far and are working
their way through the federal court system.
Democrats Provided Edge on Detainee Vote
By ERIC SCHMITT
11/12/05 "New York Times" -- -- WASHINGTON, Nov. 11 - Democrats who
had voted previously to prohibit abusive treatment of detainees in
American custody provided the margin of victory on Thursday for a
Republican-backed measure that would deny prisoners at Guantánamo
Bay, Cuba, the right to challenge their detention in federal courts.
Four of the five Democrats who supported the provision to strip
detainees at Guantánamo of the legal tool the Supreme Court gave
them to appeal their incarcerations said on Friday that they drew
the line at allowing the prisoners unfettered access to United
States courts to challenge the underlying rationale for their
detention. The Senate approved the measure, an amendment to a
military budget bill, 49 to 42.
"A foreign national who is captured and determined to be an enemy
combatant in the world war on terrorism has no more right to a
habeas corpus appeal to our courts than did a captured soldier of
the Axis powers during World War II," Senator Joseph I. Lieberman,
Democrat of Connecticut, said in a statement.
Senator Kent Conrad, Democrat of North Dakota, said in a telephone
interview that retired soldiers told him at a Veterans Day lunch in
Fargo on Friday that they supported Senator John McCain's proposed
ban on cruel and degrading treatment of prisoners but opposed giving
detainees at Guantánamo Bay broader leeway to United States courts.
"I don't think giving enemy combatants access to the federal court
system is a precedent we want to set," Mr. Conrad said.
Spokesmen for two other Senate Democrats who voted for the measure,
Mary L. Landrieu of Louisiana and Ben Nelson of Nebraska, made
similar statements. "He thinks they should stay in the military
tribunal system, and if that system is broken, we should fix it, not
move them out of it," said David DiMartino, a spokesman for Senator
Nelson.
The vote on the measure, written by Senator Lindsey Graham,
Republican of South Carolina, opened a window this week into the
complicated Capitol Hill politics of setting the rules and
procedures for how the nation treats detainees and adjudicates their
grievances in the global war on terror.
The vote also came at a time when the White House and Mr. McCain are
locked in tense negotiations over the language of his provision,
which has twice passed the Senate in recent days and is now a
critical sticking point in the House-Senate conference committee
deciding the fate of a $445 billion military spending bill.
Senate Democrats led by Jeff Bingaman of New Mexico are gearing up
over the weekend to launch a counteroffensive early next week to
strike or at least soften the part of Mr. Graham's measure that bars
Guantánamo prisoners from challenging their incarceration by
petitioning in civilian court for a writ of habeas corpus.
Mr. McCain issued a statement Friday explaining his vote in support
of Mr. Graham's amendment as a way to rid federal courts of
petitions from prisoners on everything from the delivery of mail to
the type of food allowed. But he also hinted that he might support a
compromise next week.
"Based on ongoing discussions, it is entirely possible that the
current version of the amendment will be modified to address
concerns about lawful treatment and the scope of independent
appeals," Mr. McCain said.
Josh Kardon, chief of staff to Senator Ron Wyden of Oregon, the
fifth Democrat to vote for Mr. Graham's measure, suggested that Mr.
Wyden was also looking for a compromise to make the Guantánamo
tribunal process more accountable to the Senate and "ensure the fair
and humane treatment of detainees."
Yet the prospects of eliminating or modifying Mr. Graham's measure
are problematic. Seven of the nine senators who were absent for
Thursday's vote are Republicans who will probably back his original
version next week.
The two moderate Republicans from Maine, Olympia J. Snowe and Susan
Collins, who voted for Mr. Graham's measure, both indicated strong
support Friday for preserving the provision as is, although aides
said no final decisions would be made until senators saw details of
Mr. Bingaman's proposal.
"Senator Graham's amendment complements Senator McCain's amendment,"
Ms. Collins said in a statement. "At the same time, his amendment
prevents detainees who are not U.S. citizens from filing habeas
corpus lawsuits in federal courts."
Antonia Ferrier, a spokeswoman for Ms. Snowe, characterized her
boss's concerns this way: "Do we need all those lawyers going down
there to hear their complaints? It seems a little extreme to her.
After all, we're talking about enemy combatants."
If approved in its current form by both the Senate and the House,
which has not yet considered it but where approval is considered
likely, the measure would nullify a June 2004 Supreme Court opinion
that detainees had a right to challenge their detentions in court.
Nearly 200 such petitions have been filed so far and are working
their way through the federal court system.
A group of legal scholars, including Judith Resnick of Yale Law
School, David Shapiro and Frank Michelman of Harvard Law School, and
Burt Neuborne of New York University Law School, were circulating a
letter on Friday urging senators to reject Mr. Graham's measure.
"The Graham amendment embodies an effort to alter fundamental
precepts of our constitutional order," the letter said. "It consigns
the protection of fundamental human liberties to unilateral
executive determination."
As the debate intensifies next week over the Graham measure, a
confrontation will also be brewing over Mr. McCain's provision. Vice
President Dick Cheney asked Senate Republicans at their weekly
private luncheon last week for the Central Intelligence Agency to be
granted an exemption that would allow it extra latitude, subject to
presidential authorization, in interrogating high-level terrorists
abroad who might have knowledge about future attacks. That effort
went nowhere.
This week, while Mr. Cheney was pheasant hunting with friends in
South Dakota, President Bush's national security adviser, Stephen J.
Hadley, opened negotiations with Mr. McCain, which so far have
failed to break the impasse.
Copyright 2005 The New York Times Company
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