Senate Vote Nears on Guantanamo Detainee Rights

The Senate on Monday prepared for a showdown over whether noncitizens held at the U.S. detention facility in Guantanamo Bay, Cuba, have a right to question the legality of their imprisonment.

A measure passed by the chamber last week on a 49-42 vote would effectively overturn a Supreme Court decision granting detainees the right to challenge their detention in federal court. A final vote on adding that language to a defense spending bill was expected today.

But two proposed amendments would slightly ease that prohibition; one of them was proposed by the author of the original language, Sen. Lindsey Graham (R-S.C.).

If adopted by the Senate, the detainee amendment would need to be accepted by the House of Representatives to be sent to President Bush.

Graham sponsored the amendment to ban foreign captives at Guantanamo -- who number about 500 -- from challenging their detention with a writ of habeas corpus, a provision that dates from English common law.

In an effort to soften the prohibition, Sen. Jeff Bingaman (D-N.M.) on Monday introduced a competing amendment that would permit prisoners to question the rationale for their incarceration but exclude petitions over other matters, including conditions of confinement.

“It is reasonable to insist that when the government deprives a person of his or her liberty, and in this case for an indefinite period of time, that the individual have a meaningful opportunity to challenge the legality of their detention,” Bingaman said on the Senate floor. “This is not a radical proposition that I’ve just enunciated. It is enshrined in our Constitution.”

But Graham, a military lawyer before he began his political career, argued that since the Supreme Court granted Guantanamo prisoners access to federal court in 2004, the system has been swamped with frivolous complaints.

“Does the United States Senate want [to give] enemy terrorists, Al Qaeda members being detained at Guantanamo Bay, unlimited access to our federal courts to sue our troops?” Graham asked. “Never in the midst of warfare has an [enemy] prisoner been allowed” such judicial rights.

In response to concerns raised by some senators, Graham was offering to amend his initial provision to give Guantanamo prisoners some legal rights to appeal findings by the military that they are enemy combatants. In addition, detainees sentenced to 10 years or more would receive an automatic appeal; those who received a lesser sentence could ask for a hearing.

Sen. Carl Levin of Michigan, the top Democrat on the Armed Services Committee, said he hoped his colleagues would adopt Bingaman’s more permissive language. But if not, he added, he hoped the Senate would accept Graham’s revisions to his amendment as an improvement over the measure adopted last week.

“All of us really believe that we must operate according to our Constitution and our laws,” Levin said.