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Detainee bill nears passage

Pols mull rules that approach status quo on pursuit, treatment of war enemies that could reach high court

BY TOM BRUNE | Newsday Washington Bureau

September 28, 2006

WASHINGTON - Under detainee legislation Congress is poised to enact, President George W. Bush will not be required to dramatically change much about the way he has gone about pursuing, capturing, questioning and imprisoning suspected terrorists, experts said yesterday.

In fact, experts said, the president's hand actually would be strengthened because for the first time he would have the explicit backing of Congress, which former Justice Department attorney David Rivkin called "a political buy-in" to Bush's approach to the war on terror.

"It will give him the green light to do what he's wanted to do all along," said Eugene Fidell of the nonprofit National Institute of Military Justice.

Duke University law professor Scott Silliman said he believes the bill actually enhances the president's authority, by shielding the CIA from charges for any past abuses and allowing Bush to define the tough alternative interrogation methods the CIA can use.

Yet, if enacted into law, as expected, lawyers for detainees already have talked about challenging it in the courts, creating the prospect of a return to the Supreme Court, with the outcome uncertain.

As Congress nears its break at the end of the week, the bill to create tribunals for suspected terrorists and permit the CIA's controversial program of secret prisons and harsh questioning moved closer to passage yesterday. The House, after a brief but stark debate, yesterday approved the measure 253-168. Joining a GOP majority were 34 Democrats.

Bush praised the action that would preserve the "vital" CIA program and urged the Senate "to act quickly to get a bill to my desk before Congress adjourns."

The Senate opened debate on five proposed amendments to the bill yesterday, and is expected to complete its deliberations and possibly vote today or tomorrow.

The key amendment would remove a section of the bill that bars detainees from filing habeas corpus petitions to challenge their imprisonment, as well as any lawsuits arising from the capture, questioning and detainment of suspected terrorists.

Sen. Arlen Specter (R-Pa.) and Sen. Patrick Leahy (D-Vt.), sponsors of the amendment, charged the court-stripping was unconstitutional. But Sen. Lindsey Graham (R-S.C.) said detainees in a war should not have access to U.S. civil courts, but should be under military control.

The legislation was prompted by the Supreme Court's recent Hamdan decision, which struck down tribunals for lack of Congressional authorization and for the first time applied a Geneva Conventions provision to the U.S. war on terror.

In response, key Republicans and the White House clashed over defining the Geneva Conventions ban on inhumane, cruel and degrading treatment.

A compromise created a list of felonies for the most serious violations of the conventions, but left the definition of lesser violations to the president.

Human rights activists worry that the president will permit activities that they consider torture. The White House says torture is banned.