Vote to strip rights of Guantanamo prisoners may be reconsidered

WASHINGTON — For almost 800 years, the "great writ" of habeas corpus has been a bedrock principle of English and U.S. law, from the Magna Carta to today's jails and courts. It's the means for a prisoner to contest his or her imprisonment.

That's one reason legal experts were stunned when the Senate, after an hour of debate, voted Thursday to overturn the Supreme Court's extension of habeas-corpus protection to 500-plus detainees at the Guantánamo Bay base in Cuba.

Opponents vowed Friday to fight the measure, and negotiators on the issue said the Senate may reconsider it early next week. The White House, which previously opposed oversight of Guantánamo by Congress and the courts, supports the Senate action, spokeswoman Jeanie Mamo said Friday.

Under the provision, proposed by Sen. Lindsey Graham, R-S.C., suspected terrorists held at Guantánamo no longer would be allowed to challenge their detentions in federal court. Most of the detainees were captured in Afghanistan or Pakistan, and many have been held for almost four years without charges.

The provision would reverse a 2004 Supreme Court decision that held that the detainees have the right to sue. Almost 300 detainees have filed petitions in U.S. district court in Washington since.

The Graham proposal also would block Monday's Supreme Court decision to hear some detainees' challenges to military trials set to be held at Guantánamo. It also would stop a case being considered by the U.S. Circuit Court of Appeals for the District of Columbia on how habeas-corpus cases should be handled.

Graham said his proposal was intended "to correct the balance" in how terrorism suspects should be treated: as enemy combatants, not as potential criminal defendants. He said the action was needed because Congress' failure to set legal procedures for dealing with the detainees had forced the courts to step in.

"We've been chicken, to be honest, but now we're trying to bring some clarity to the legal confusion," Graham said. He said his proposal is part of a package with Sen. John McCain's amendment — adopted by the Senate last month — to ban cruel and inhumane treatment of prisoners.

Many legal experts said the reach of Graham's proposal was breathtaking.

The Senate is "trying to reverse a Supreme Court case of great magnitude and scuttle another one," said Scott Silliman, a former Air Force lawyer who heads Duke University's Center on Law, Ethics and National Security. "This is momentous."

Opponents are scrambling to overturn the Senate vote. Sen. Jeff Bingaman, D-N.M., is planning an amendment that would remove the habeas-corpus provision, and the Senate may take that up Monday.

John Hutson, a retired rear admiral and former judge advocate general of the Navy, is rounding up signatures from about 60 former officers who oppose the proposal. The National Institute of Military Justice, a nonpartisan legal group, also is opposing the measure.