Senate Offers Revised Rules for Suspects of Terrorism*
By CHARLIE SAVAGE
June 23, 2011
WASHINGTON — The Senate Armed Services Committee has voted for a sweeping and bipartisan package redefining the rules for detaining terrorism suspects, including giving military judges the power to review the cases of prisoners in Afghanistan and mandating military detention for important Qaeda suspects — even if they are captured on United States soil.
The panel approved the package last week 25 to 1 as part of the 2012 National Defense Authorization Act, and it released a brief summary of the act as a whole. But its detention aspects have received scant attention because the vote took place in a closed session and the text of the legislation has not been made public.
The bill, which now goes to the Senate floor, could be unveiled Friday. Its contents related to the detainee deal — whose architects included the committee chairman, Carl Levin, Democrat of Michigan, and two leading Republicans on the committee, John McCain of Arizona and Lindsey Graham of South Carolina — were described in greater detail by a legislative aide.
One section would direct the military to set up a system of status hearings for prisoners it intends to hold in “long-term custody” in places like the prison at Bagram Air Base in Afghanistan, where about 1,700 men are currently being held without trial. The hearings would be before a military judge, and the prisoners would be represented by a military lawyer.
Under the provision, if the judge were to find that such a prisoner is not an enemy combatant and is being held by mistake, the prisoner could win release. The legislation does not define crucial details, like what counts as “long term” and whether there would be any appeal process.
It is not clear how executive branch officials will react to that provision. Both the Bush and Obama administration have fought to prevent detainees in Afghanistan from having habeas corpus rights in federal court, and executive branch officials have previously expressed concerns that requiring military versions of such hearings for all prisoners would strain resources, the aide said.
Another provision would mandate military detention for people suspected of being “high value” terrorists from Al Qaeda: members of the organization who participated in planning or conducting attacks on the United States. The mandate would exclude United States citizens, and it would allow the secretary of defense to send detainees to the civilian criminal justice system at his discretion.
Andrea J. Prasow of Human Rights Watch called that provision an “outrageous” undermining of prosecutorial discretion, adding that “mandatory military detention is what martial-law states do, not democracies.”
The measure would affect detainee issues in other ways:
¶ Making permanent a restriction against using military funds to build a prison inside the United States to house Guantánamo detainees.
¶ Allowing defendants in military commissions to plead guilty in capital cases.
¶ Codifying in federal statute a parole-board-like system of annual reviews for detainees that President Obama established by executive order this year.
¶ Making permanent a steep set of conditions, previously imposed by Congress as a temporary measure, that must be met before a Guantánamo detainee may be transferred to another country, but also authorizing the secretary of defense to make exceptions to the rules in certain cases.
¶ Declaring that the existing authorization to use military force against the perpetrators of the Sept. 11 attacks includes the power to detain members of Al Qaeda, the Taliban and associated forces.
The provision defining who can be detained is less sweeping than a similar provision in the House version of the bill. Critics have said that version as amounting to a new authorization of open-ended war severed of any connection to the Sept. 11 attacks.
