NYT : Senate Passes Broad New Detainee Rules

Senate Passes Broad New Detainee Rules

By KATE ZERNIKE | September 29, 2006

WASHINGTON, Sept. 28 — The Senate approved a measure on Thursday on the interrogations and trials of terrorism suspects, establishing far-reaching rules to deal with what President Bush has called the most dangerous combatants in a different type of war.

The vote was 65 to 34. It was cast after more than 10 hours of often impassioned debate that touched on the Constitution, the horrors of Sept. 11 and the role of the United States in the world.

Both parties also positioned themselves for the continuing clash over national security going into the homestretch of the midterm elections.

The bill would set up rules for the military commissions that will allow the government to proceed with the prosecutions of high-level detainees including Khalid Shaikh Mohammed, considered the mastermind of the Sept. 11, 2001, attacks.

It would make illegal several broadly defined abuses of detainees, while leaving it to the president to establish specific permissible interrogation techniques. And it would strip detainees of a habeas corpus right to challenge their detentions in court.

The bill is the same as one that the House passed, eliminating the need for a conference between the two chambers. The House is expected to approve the Senate bill in a perfunctory vote on Friday, sending it to the president to be signed.

The bill was a compromise between the White House and three Republican senators who had resisted what they saw as Mr. Bush’s effort to rewrite the nation’s obligations under the Geneva Conventions. Although the president had to relent on some major provisions, the vote allows him to claim victory in achieving a main legislative priority.

“As our troops risk their lives to fight terrorism, this bill will ensure they are prepared to defeat today’s enemies and address tomorrow’s threats,” the president said in a statement after the vote.

Republicans argued that the new rules would provide the necessary tools to fight a new kind of enemy.

“Our prior concept of war has been completely altered, as we learned so tragically on Sept. 11, 2001,” Senator Saxby Chambliss, Republican of Georgia, said. “And we must address threats in a different way.”

Democrats argued that the rules were being rushed through for political gain too close to a major election and that they would fundamentally threaten the foundations of the American legal system and come back to haunt lawmakers as one of the greatest mistakes in history.

“I believe there can be no mercy for those who perpetrated the crimes of 9/11,” Senator Hillary Rodham Clinton, Democrat of New York, said. “But in the process of accomplishing what I believe is essential for our security, we must hold onto our values and set an example that we can point to with pride, not shame.”

Twelve Democrats crossed party lines to vote for the bill. One Republican, Senator Lincoln Chafee of Rhode Island, voted against it.

But provisions of the bill came under criticism from Republicans as well as Democrats, with several crossing lines on amendments that failed along narrow margins.

Senator Carl Levin of Michigan, the senior Democrat on the Armed Services Committee, arguing for an amendment to strike a provision to bar suspects from challenging their detentions in court, said it “is as legally abusive of the rights guaranteed in the Constitution as the actions at Abu Ghraib, Guantánamo and secret prisons were physically abusive of detainees.”

The amendment failed, 51 to 49.

Even some Republicans who voted for the bill said they expected the Supreme Court to strike down the legislation because of the provision barring court detainees’ challenges, an outcome that would send the legislation right back to Congress.

“We should have done it right, because we’re going to have to do it again,” said Senator Gordon H. Smith, Republican of Oregon, who voted to strike the provision and yet supported the bill.

The measure would broaden the definition of enemy combatants beyond the traditional definition used in wartime, to include noncitizens living legally in the United States as well as those in foreign countries and anyone determined to be an enemy combatant under criteria defined by the president or secretary of defense.

It would strip at Guantánamo detainees of the habeas right to challenge their detention in court, relying instead on procedures known as combatant status review trials. Those trials have looser rules of evidence than the courts.

It would allow of evidence seized in this country or abroad without a search warrant to be admitted in trials.

The bill would also bar the admission of evidence obtained by cruel and inhuman treatment, except any obtained before Dec. 30, 2005, when Congress enacted the Detainee Treatment Act, that a judge declares reliable and probative.

Democrats said the date was conveniently set after the worst abuses at Abu Ghraib and Guantánamo.

The legislation establishes several “grave breaches” of Common Article 3 of the Geneva Convention that are felonies under the War Crimes Act, including torture, rape, murder and any act intended to cause “serious” physical or mental pain or suffering.

The issue was sent to Congress as a result of a Supreme Court decision in June that struck down military tribunals that the Bush administration had established shortly after the Sept. 11 attacks. The court ruled that the tribunals violated the Constitution and international law.

The White House submitted a bill this month to authorize a tribunal system, setting off intraparty fighting as the three Senate Republicans, Lindsey Graham of South Carolina, John McCain of Arizona and John W. Warner Jr. of Virginia, insisted that they would not support a provision that in any way appeared to alter the commitments under the Geneva Conventions.

Such a redefinition, they argued, would send a signal to other nations that they, too, could rewrite their commitments to the 57-year-old conventions and, ultimately, lead to Americans seized in wartime being abused and tried in kangaroo courts.

The White House and the senators came to their agreement last week.

Democrats and human rights groups objected to changes in the legislation over the weekend, as the House and White House drafted final language, including defining enemy combatants and setting rules on search warrants.

“We should get this right, now, and we are not doing so by passing this bill,” Senator Harry Reid, the Nevada Democrat who is the minority leader, said before the vote. “Future generations will view passage of this bill as a grave error.”

Human rights groups called the vote to approve the bill “dangerous” and “disappointing.” Critics feared that it left the president a large loophole by allowing him to set specific interrogation techniques.

Senators Graham, McCain and Warner rebutted that vociferously, arguing in floor statements, as well as in a colloquy submitted into the official record, that the measure would in no way give the president the authority to authorize any interrogation tactics that do not comply with the Detainee Treatment Act and the Geneva Conventions, which bar cruel and inhuman treatment, and that the bill would not alter American obligations under the Geneva Conventions.

“The conventions are preserved intact,” Mr. McCain promised his colleagues from the floor.

After the vote, Mr. Graham said: “America can be proud. Not only did she adhere to the Geneva Conventions, she went further than she had to, because we’re better than the terrorists.”

Besides the amendments that would have struck the ban on habeas corpus cases, the others that failed included one that would have established a sunset on the measure to allow Congress to reconsider it in five years and one that would have require the C.I.A. to submit to Congressional oversight.

Another failed amendment would have required the State Department to inform other nations of what interrogation techniques it considered illegal for use on American troops, a move intended to prompt the administration to say publicly what techniques it considers out of bounds.