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Human-Rights Groups Back Dems' Detainee Law Overhaul

By Roxana Tiron
The Hill
November 21, 2006

Some human-rights groups are hoping that the Democrats' takeover of Congress will provide the necessary momentum to overhaul the controversial new legislation governing military tribunals.

One of the groups' main goals is to restore habeas corpus rights to military detainees held at Guantanamo Bay, Cuba. 

The writ of habeas corpus would allow the prisoners to have the legal basis of their detention reviewed in court to determine whether they should be released from custody.

"I expect that there will be a serious, bipartisan effort to try and correct some of the more confusing and flawed elements of the Military Commissions Act," said Tom Malinowski, the advocacy director of Human Rights Watch. "The most promising effort would be the one to restore habeas corpus rights to detainees, because it is such a fundamental right."

Sen. Chris Dodd (D-Conn.), a 2008 presidential hopeful who come January will be the second-ranking Democrat on the Foreign Relations Committee, introduced a bill that would amend existing law, including providing habeas corpus protections to military detainees. 

Dodd is the first to take direct aim at the controversial tribunal bill, which President Bush signed into law in October.

Sen. Patrick Leahy (D-Vt.), the incoming chairman of the Senate Judiciary Committee, said he too is in the process of drafting "major changes" to the legislation, including instituting habeas corpus rights for detainees.

Right after the Democrats take over the majority in early January, the Pentagon must report on the new procedures involved in the military commissions to the Senate and House Armed Services committees.

The Democrats may be able to corral enough bipartisan support to push for changes to the law, Malinowski predicted.

"Depending on how they frame [the legislation], they may be able to get some moderate Republicans [to support it]," he said.

One of those centrists is Sen. Arlen Specter (R-Pa.), who introduced an amendment when Congress was considering the military tribunal bill in late September that would have reinstated habeas corpus rights. That amendment failed by three votes. Democrats could also enlist the help of Sens. John Sununu (R-N.H.) and Gordon Smith (R-Ore.), who also support reinstating habeas corpus rights. 

But Senate Democrats could have a tough time gathering enough support to stave off a White House veto. The Senate passed the military commissions bill by a vote of 65 to 34.

While changing the new law is important, that is not the only remedy, said Elisa Massimino, Washington, D.C. director of Human Rights First.

"We need more oversight and there would need to be hearings held on who exactly is held at GuantanamoBay," said Massimino.

Oversight hearings into the use of controversial, alternative interrogation techniques, such as those the CIA uses against high-value terrorist suspects, are also imperative, said Massimino.

The confirmation hearings of Robert Gates, outgoing Defense Secretary Donald Rumsfeld's replacement to head the Pentagon, likely will provide more clues about how Democrats will change laws governing the treatment of military detainees. 

Republican presidential hopeful Sen. John McCain (R-Ariz.) worked hard to pass the Detainee Treatment Act of 2005, which prohibits cruel, inhuman and degrading treatment for all prisoners, despite opposition from the White House and many in his party.

Even before Democrats won the midterm election, Sen. Carl Levin (D-Mich.) had been asking for internal White House legal memos on the administration's interpretation of laws governing detainee treatment.

"Now he can really force these things," Massimino said of Levin, who will be the chairman of the Senate Armed Services Committee in January.

Malinowski said he is particularly interested in the Department of Justice memo that specifies what interrogation techniques, including those the CIA uses, are legal in the administration's view.

"They are going to fight tooth and nail not to give that out," he said.

Several House Democrats are following their Senate counterparts' lead and have started considering changes to the military tribunal legislation.

"It is being put together at the committee level right now," said Rep. Neil Abercrombie (D-Hawaii), a veteran of the House Armed Services Committee, who will be a subcommittee chairman in January.

"I will support any legislative activity to throw that act out at best, and at a minimum reconfigure it to include habeas corpus and other aspects to conform to our constitutional imperative," Abercrombie told The Hill. "At the first legislative opportunity, the issue surrounding military commissions will be taken up."

The committee is considering passing legislation to expedite the judicial review of the new military tribunal law to determine its constitutionality. It's the same provision Dodd included in his bill overhauling the law.

Rep. Ike Skelton (D-Mo.), who will take over the armed services panel next year, said he thought the new law was "unconstitutional."

Meanwhile, Rep. Solomon Ortiz (D-Texas), the third-ranking Democrat on the panel, said he expects to have to deal with the military tribunal legislation one way or the other.

"I am pretty sure it is going to be challenged [in the courts]," he said.

But committee Democrats likely will have a tough opponent in Rep. Duncan Hunter (R-Calif.), who as current chairman played a part in drafting the legislation and who will be the panel's ranking member next year.

"I think it is a solid act," Hunter said yesterday in an interview with reporters. "We should start prosecuting instead of second-guessing."

House Democrats may face larger hurdles than their Senate colleagues in trying to change the tribunal legislation. The House passed the Military Commissions Act by a vote of 253 to 168.

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