WASHINGTON – Senate Democrats plan to use their newfound power to revisit one of the most contentious national security matters of 2006: Deciding what legal rights must be protected for detainees held in the war on terrorism.
In September, Congress passed a bill that gave President Bush wide latitude in interrogating and detaining captured enemy combatants. The legislation, backed by the White House, prompted more than three months of debate — exposing Republican fissures and prompting angry rebukes by Democrats of the administration's interrogation policies.
With the Nov. 7 elections handing control to the Democrats, the issue is far from settled. A group of Senate Democrats and one Republican, Sen. Arlen Specter of Pennsylvania, want to resurrect the bill to fix at least one provision they say threatens the nation's credibility on human rights issues.
The proposed revisions to the bill could surface in the new Congress early in the year, staffers say — with new sympathetic ears in leadership and a slim Democratic majority in Congress.
Sen. Harry Reid, D-Nev., who will take control of the Senate as majority leader next year, "would support attempts to revisit some of the most extreme elements of the bill" including language stripping detainees of habeas corpus rights, although no immediate action is planned, said Reid spokesman Jim Manley.
Under the law, the president can convene military commissions to prosecute terror suspects so long as he follows certain guidelines, such as granting defendants legal counsel and access to evidence used against them. The bill also for the first time provides specific definitions of abusive treatment of prisoners, prohibiting some of the worst abuses like mutilation and rape but granting the president leeway to decide which specific interrogation techniques are permissible.
While the White House initially backed a harder line that would have left the president's interrogation policies virtually unchecked, Sens. John Warner, R-Va., Lindsey Graham, R-S.C. and John McCain, R-Ariz., insisted on language they said would protect U.S. international commitments on prisoner abuse.
But Specter, R-Pa., and Patrick Leahy, D-Vt., incoming chairman of the Judiciary Committee, say a disturbing provision left in the bill specifically prohibits a detainee from protesting his detention in court. This provision barring habeas corpus petitions means that only detainees selected for trial by the military are able to confront charges against them, leaving a vast majority of the estimated 14,000 military detainees in custody without a chance to plead their case.
"I think the courts are going to declare that part of the legislation unconstitutional," Specter said in an interview this month.
Leahy and other Democrats, led by Sen. Christopher Dodd, D-Conn., have another proposal that would go much further by eliminating other provisions of the White House bill. Among other things, Dodd's legislation would specifically bar coerced statements as testimony and limit the president's authority in interpreting international standards for prisoner treatment.
In contrast, the bill signed by Bush in October allows coerced evidence under narrow circumstances and leaves it up to the president to implement Geneva Convention standards.
Dodd and other Democrats say such protections should be afforded to terror suspects because the U.S. would want other nations to apply similar rights to troops captured in war.
"I strongly believe that terrorists who seek to destroy America must be punished for any wrongs they commit against this country," Dodd told Bush in a November letter, urging the president to delay implementation of the bill.
"But in my view, in order to sustain America's moral authority and win a lasting victory against our enemies, such punishment must be meted out only in accordance with the rule of law," Dodd added.
Both proposals were similar to ones shot down earlier this year by the Republican-led Congress. But while Dodd's proposal might not attract enough Republicans, who are reluctant to revisit the issue, Specter and Leahy's plan to restore habeas corpus rights to detainees could get through narrowly in the new Senate.
In September, a similar proposal offered by Specter as an amendment to the detainee bill was narrowly defeated in a 51-48 vote. Sen. Olympia Snowe — a moderate Republican who this year expressed skepticism about the White House policy toward detainees — did not vote.
With 49 Democrats in power next year, Snowe, R-Maine, and the four Republicans who supported the measure could tip the scales in another vote.
While the charge to revise the bill is expected to be led by the Senate, incoming House Speaker Nancy Pelosi also may want to take another look at it. Pelosi spokesman Drew Hammill said House Democrats "have a number of concerns about whether the bill is constitutional, and the impact that it will have on the treatment accorded our troops if they are captured in combat."