Senate rejects giving terror suspects access to federal courts | McClatchy Washington Bureau

WASHINGTON — The Senate on Wednesday rejected legislation that would have allowed terrorist suspects held at Guantanamo Bay, Cuba, to petition federal courts claiming that they're being held in error.

The 56-43 vote in favor of the bill fell short of the 60 votes needed under Senate rules to cut off debate, blocking the legislation.

The measure, sponsored by Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., would have given military detainees the right of habeas corpus — the right to challenge one's detention in court, rooted in English common law dating from before the Magna Carta of 1215 — which serves as a check on arbitrary government power.

The Bush administration opposed giving the right to terrorist suspects. Most Republican senators backed the administration. Besides Specter, the other Republicans who voted with the Democrats were Chuck Hagel of Nebraska, Richard Lugar of Indiana, Gordon Smith of Oregon, Olympia Snowe of Maine and John Sununu of New Hampshire.

The change in law would have applied to the roughly 340 men held at Guantanamo. Many of them have been held for more than five years without charge. The Bush administration has said that indefinite detention of enemy combatants who threaten the United States is necessary in an age of terrorism.

Congress passed a law last year that establishes combatant status review tribunals, made up of three military officials, to review such petitions. Sen. Lindsey Graham, R-S.C., a military lawyer who helped write the law, said the military is best able to determine who's an unlawful enemy combatant.

Graham said that under the Leahy-Specter bill, detainees would be able to pick judges from courts around the country and demand the presence of witnesses from the battlefield.

"That's never been done in any other war and it should not be done in this war," Graham said.

Leahy responded that people being held without charge indefinitely should be able to assert in court that they were mistakenly picked up. If a detainee is being lawfully held, the government can easily overcome the claim by presenting "the preponderance of the evidence," he said.

"It's a far cry from a get-out-of-jail-free card," Leahy said.

Sen. John McCain, R-Ariz., a war supporter and presidential candidate, warned that classified evidence could be made available to the detainees in ways that would harm intelligence agencies.

Leahy said his bill wouldn't mean sharing classified intelligence with terrorists.

"That's cockamamie," he declared on the Senate floor. "It's mere fear-mongering."

Many cases could be determined without classified evidence, Leahy said. Judges would have discretion to decide what kind of evidence and witnesses were needed, and judges were "well equipped" to handle classified material without compromising national security, he said.

Leahy also argued that failing to give military detainees the right to challenge their detentions in court would make it harder for the U.S. government to protest if another country refused to give a detained American the same right.

"How can we go to these other countries and say, 'You can't do this,'" he asked. "They'd say, 'But you do it.'"

Sen. Christopher Dodd, D-Conn., a presidential contender, said in a statement that the measure would have helped restore America's reputation in the world.

"This defeat will only deepen my resolve to restore the rule of law and with it American security, for far too much is at stake — for every American — to simply give up the fight," Dodd said.

Sen. Joseph Biden, D-Del., also a presidential candidate, also issued a statement: "As I've said before, the terrorists win when we abandon our civil liberties."

The Department of Justice said in a letter that extending the right of habeas corpus to terrorist suspects "would hamper the war effort and bring aid and comfort to the enemy," said Sen. Jon Kyl, R-Ariz.

Leahy said the matter went beyond the war on terrorism and detainees at Guantanamo, to the 12 million lawful permanent residents in the United States who lack status as citizens. He said that these residents also could be detained and denied the right of habeas corpus.

(Lesley Clark of the Miami Herald contributed.)