Detainee Measure to Have Fewer Restrictions

By R. Jeffrey Smith
The Washington Post

Tuesday 26 September 2006

Republican lawmakers and the White House agreed over the weekend to alter new legislation on military commissions to allow the United States to detain and try a wider range of foreign nationals than an earlier version of the bill permitted, according to government sources.

Lawmakers and administration officials announced last week that they had reached accord on the plan for the detention and military trials of suspected terrorists, and it is scheduled for a vote this week. But in recent days the Bush administration and its House allies successfully pressed for a less restrictive description of how the government could designate civilians as "unlawful enemy combatants," the sources said yesterday. They spoke on the condition of anonymity because of the sensitivity of negotiations over the bill.

The government has maintained since the Sept. 11, 2001, attacks that, based on its reading of the laws of war, anyone it labels an unlawful enemy combatant can be held indefinitely at military or CIA prisons. But Congress has not yet expressed its view on who is an unlawful combatant, and the Supreme Court has not ruled directly on the matter.

As a result, human rights experts expressed concern yesterday that the language in the new provision would be a precedent-setting congressional endorsement for the indefinite detention of anyone who, as the bill states, "has engaged in hostilities or who has purposefully and materially supported hostilities against the United States" or its military allies.

The definition applies to foreigners living inside or outside the United States and does not rule out the possibility of designating a U.S. citizen as an unlawful combatant. It is broader than that in last week's version of the bill, which resulted from lengthy, closed-door negotiations between senior administration officials and dissident Republican senators. That version incorporated a definition backed by the Senate dissidents: those "engaged in hostilities against the United States."

The new provision, which would cover captives held by the CIA, is more expansive than the one incorporated by the Defense Department on Sept. 5 in new rules that govern the treatment of detainees in military custody. The military's definition of unlawful combatants covers only "those who engage in acts against the United States or its coalition partners in violation of the laws of war and customs of war during an armed conflict."

Kate Martin, director of the Center for National Security Studies, said that by including those who "supported hostilities" - rather than those who "engage in acts" against the United States - the government intends the legislation to sanction its seizure and indefinite detention of people far from the battlefield.

Martin noted that "the administration kidnapped an innocent German citizen" and "held him incommunicado for months ... because the CIA or Pentagon wrongly suspected him of terrorist ties." She was referring to Khalid al-Masri, who the Bush administration eventually acknowledged was detained on insufficient grounds.

Nothing in the proposed legislation - which mostly concerns the creation of new military panels, known as "commissions," to try terrorism suspects - directly addresses such CIA apprehensions and "renditions."

But the bill's new definition "would give the administration a stronger basis on which to argue that Congress has recognized that the battlefield is wherever the terrorist is, and they can seize people far from the area of combat, label them as unlawful enemy combatants and detain them indefinitely," said Suzanne Spaulding, an assistant general counsel at the CIA from 1989 to 1995.

Traditionally, courts have found it reasonable for parties to armed conflicts to seize or try people they encounter on a battlefield, to keep them from returning to the hostilities, added Spaulding, who was also a general counsel for the House and Senate intelligence committees. "The Supreme Court could potentially look at this and say Congress has now defined how anyone anywhere in the world" is subject to detention and military trial, even when far from an active combat zone, she said.

White House spokeswoman Dana Perino said: "We are satisfied with the definition because it will allow us to prosecute the terrorists, and it also has important limitations that say a terrorist must have purposefully and materially supported terrorism."

Spokesmen for John W. Warner (R-Va.), John McCain (R-Ariz.) and Lindsey O. Graham (R-S.C.) - the senators leading negotiations with the Bush administration - did not immediately respond to requests for comment on the new language, but others on Capitol Hill said the three had accepted it.

Under a separate provision, those held by the CIA or the U.S. military as an unlawful enemy combatant would be barred from challenging their detention or the conditions of their treatment in U.S. courts unless they were first tried, convicted and appealed their conviction.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) yesterday assailed the provision as an unconstitutional suspension of habeas corpus, which he said was allowable only "in time of rebellion or in time of invasion. And neither is present here."

He was joined by the committee's senior Democrat, Sen. Patrick J. Leahy (Vt.), who said that under the provision, legal U.S. immigrants could be held "until proven innocent, not until proven guilty."

Bruce Fein, a senior Justice Department official in the Reagan administration, testified against the provision at a Senate hearing. Kenneth W. Starr, a solicitor general under President George H.W. Bush, said in a letter to Specter that he concerned the legislation "may go too far in limiting habeas corpus relief."

Sen. John Cornyn (R-Tex.) defended the provision, saying alien enemy combatants are not "entitled to rights under the United States Constitution similar to those accorded to a defendant in a criminal lawsuit."

Congressional sources said Specter is unlikely to derail the compromise legislation over those objections.

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Staff writer Michael A. Fletcher and staff researcher Julie Tate contributed to this report.