The Senate voted Thursday to bar foreign terror suspects at the U.S. prison in Guantanamo Bay, Cuba, from filing lawsuits in American courts to challenge their detentions, despite a Supreme Court ruling last year that granted such access.
In a 49-42 vote, senators added the provision by Sen. Lindsey Graham, R-S.C., to a sweeping defense policy bill.
Under the provision, Guantanamo Bay detainees would be allowed to appeal their status as an "enemy combatant" one time, to the Circuit Court of Appeals in Washington, D.C. But they would not be able to file petitions known as writs of habeas corpus, which are used to fight unlawful detentions, in that or any other U.S. court.
"For 200 years, ladies and gentlemen, in the law of armed conflict, no nation has given an enemy combatant, a terrorist, an Al Qaeda member the ability to go into every federal court in this United States and sue the people that are fighting the war for us," Graham told his colleagues.
Sen. Jeff Bingaman, D-N.M., said the provision was a major mistake and deserved scrutiny. "It's contrary to the way the court decisions have come down already. It is an extraordinary step for this Congress to be taking," he said.
Democrats indicated they may try to kill or change the provision before the Senate votes on the overall bill next week. Five Democrats sided with 44 Republicans in voting for the provision.
In a separate war matter, the Senate voted 82-9 to require National Intelligence Director John Negroponte to provide the Senate and House intelligence committees with details of any clandestine facilities where the United States holds or has held terrorism suspects.
That was a reaction to a Washington Post story from Nov. 2 that said the CIA has had secret prisons for terror detainees in eight countries, including democracies in Eastern Europe. The Bush administration has refused to confirm whether the prisons exist.
The Senate hopes to complete work next week on the overall bill. It already includes provisions barring abusive treatment of foreign prisoners and standardizing interrogation techniques. Those provisions also are in the separate $445 billion military spending bill the Senate passed last month.
The White House has threatened to veto any bill with the restrictions on handling detainees, saying it would limit the president's ability to protect Americans and prevent a terrorist attack. Vice President Dick Cheney has vigorously lobbied Congress to drop or modify the detainee provisions sponsored by Sen. John McCain, R-Ariz.
That has set up a rare challenge of the president's wartime authority by members of his own party. The confrontation comes as Bush is under fire for detention policies at Iraq's Abu Ghraib prison and other facilities.
It also coincides with a turbulent period in Bush's second term. His public support has eroded to its lowest level yet in polls, dragged down by the war, high gas prices and the indictment of a top White House aide in the leak of a CIA agent's identity.
The McCain and Graham provisions are not in the House-passed defense bills.
The Senate's approval of Graham's amendment followed Monday's Supreme Court decision to review a constitutional challenge to the Bush administration's military trials for suspected foreign terrorists held at the U.S. naval base in Cuba.
In 2004, the Supreme Court said the 500 or so prisoners held there could file habeas corpus petitions in U.S. courts to fight their detentions. Many of the prisoners were captured in Afghanistan and have been held at Guantanamo for several years without being charged.
Since that ruling, prisoner lawsuits against the government have piled up.
Graham sought to curb what he called "lawsuit abuse," arguing that prisoners of war and enemy combatants have never before been given access to U.S. courts.
But Sen. Carl Levin, D-Mich., said it was too broad and would effectively reverse the Supreme Court's previous decision on the issue of detainees rights. "It is inconsistent with what the Supreme Court did," he said.
Human-rights groups also cried foul.
"Depriving an entire branch of government of its ability to exercise meaningful oversight is a decidedly wrong course to take," said Elisa Massimino, the Washington director of Human Rights First.
On Iraq, Senate Democrats offered a proposal requiring the president to outline a timetable for a phased withdrawal of U.S. forces, and Republicans put forth their own Iraqi policy proposal. Votes on both are expected next week.