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Originally published September 29, 2006 at 12:00 AM | Page modified September 29, 2006 at 12:27 AM

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Congress OKs detainee bill, but it may end up in court

After a long and bitter dispute between President Bush and Congress over the rights of suspected terrorists and their interrogation, the...

WASHINGTON — After a long and bitter dispute between President Bush and Congress over the rights of suspected terrorists and their interrogation, the Senate on Thursday approved a compromise bill to set up military tribunals to try detainees.

Legal challenges almost assuredly will be pursued against the prosecution process the administration wants to use as a key element in its war on terrorism.

The Senate, in a 65-34 vote, joined the House in embracing Bush's view that the battle against terrorism justifies the imposition of extraordinary limits on defendants' traditional rights in the courtroom.

"This legislation will give the president the tools he needs to protect American lives without compromising our core democratic values," said Sen. Tom Coburn, R-Okla.

The measure's most controversial provision would block foreign prisoners held by the military from turning to the federal courts to challenge their imprisonment, a right referred to as habeas corpus. By preventing prisoners from challenging their detention in court, it sets up a potential conflict with the Supreme Court.

Some lawmakers, Republicans and Democrats, called the move to suspend habeas corpus a historic mistake and one that could cause the entire bill to be struck down.

"This is wrong, it is unconstitutional, it is un-American," said Sen. Patrick Leahy of Vermont, top Democrat on the Senate Judiciary Committee.

The judiciary panel's chairman, Sen. Arlen Specter, R-Pa., said, "Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we'll be back on this floor again" wrestling with a future ruling against it by the Supreme Court.

Still, Specter was one of 53 Republicans and 12 Democrats in voting for the final bill. Washington state Sens. Patty Murray and Maria Cantwell, both Democrats, voted against the measure. Specter said he decided to vote for the bill because it has several good features, "and the court will clean it up" by striking the habeas-corpus provisions.

Slight differences in the Senate version of the bill mean it must be returned to the House, where it is expected today to again win approval easily. Republican leaders plan to forward the bill to the White House with a ceremony on Capitol Hill, part of the party's effort to highlight its national-security credentials before the November election.

The legislation allows prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions. It rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death-penalty cases, and appeals of those convictions must go through a second military panel before reaching a federal civilian court. The detentions, though, cannot be challenged in federal court.

By writing into law for the first time the definition of an "unlawful enemy combatant," the bill empowers the executive branch to detain indefinitely anyone it determines to have "purposefully and materially" supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions. U.S. citizens designated enemy combatants have not been stripped of their habeas-corpus rights and so have access to civilian courts.

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The measure would prohibit abuses of detainees that violated Geneva Convention standards. 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 treaty.

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 agents for their past actions, this ban would be retroactive only to Dec. 30, 2005.

The need for legislation authorizing military tribunals arose in June after the Supreme Court said the Bush administration could not establish them without specific congressional authorization.

Bush had determined prior to that ruling that his executive powers gave him the right to detain and prosecute enemy combatants. He declared these detainees, being held at Guantánamo Bay prison in Cuba and in secret CIA prisons elsewhere, should not be afforded Geneva Convention protections.

Bush was forced to negotiate a new trial system with Congress. For nearly two weeks the White House and rebellious Republican senators — Lindsey Graham of South Carolina, John McCain of Arizona and John Warner of Virginia — fought publicly over whether Bush's proposed plan would give a president too much authority and curtail legal rights considered fundamental in other courts.

It is not clear whether the administration plans to try many of its detainees as war criminals. This summer, 10 of the more than 500 men held at Guantánamo had been charged with war crimes.

Bush recently said he had sent 14 "high-value" suspected foreign terrorists to Guantánamo.

This group includes Khalid Sheikh Mohammed, said to be the mastermind behind the Sept. 11, 2001, terrorist attacks.

Compiled from The Chicago Tribune, The Washington Post, the Los Angeles Times and The Associated Press

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