The senate voted 49-42 on Thursday to effectively reverse a 2004 supreme court decision that extended the writ of habeas corpus to prisoners in the US military camp in Cuba. The debate took less than an hour and the measure was tacked on to a bill on the military budget.
Lindsey Graham, a Republican senator, argued that his proposal was intended "to correct the balance", causing terror suspects to be treated as "enemy combatants" rather than as potential criminal defendants.
"For 200 years, ladies and gentlemen, in the law of armed conflict, no nation has given an enemy combatant, a terrorist, an al-Qaida member, the ability to go into every federal court in this United States and sue the people that are fighting the war for us," Mr Graham told the senate.
In an interview with Knight Ridder, Mr Graham later added: "We've been chicken, to be honest, but now we're trying to bring some clarity to the legal confusion."
Most of the 500 or so detainees kept at the Guantánamo Bay site were captured in Afghanistan or Pakistan, and many have been held for almost four years without charges being laid against them. About 200 have already filed habeas corpus motions, all of which would be void if Mr Graham's law were passed. Under Mr Graham's new measure no detainee could legally challenge the underlying rationale for their detention.
"If it stands, it means detainees at Guantánamo Bay would have no access to any federal court for anything other than very simple procedural complaints dealing with annual status review," Christopher Anders, a legislative counsel for the American Civil Liberties Union, told the New York Times. "Otherwise, the federal courts' door is shut."
Jeff Bingaman, a Democrat senator who has the support of several legal experts, plans to challenge the removal of the habeas corpus provision in the senate as early as today. "This is not a time to back away from the principles that this country was founded on," he said during the senate debate.
"Stripping jurisdiction from the court after they have decided, is far reaching and premature," said Lee Casey, a Washington attorney, who worked in the administrations of Presidents Ronald Reagan and George Bush Snr. "Congress can override the supreme court, but in this case I don't consider it the right thing to do."
John Hutson, a retired rear admiral, is collecting signatures from about 60 former officers who oppose the proposal, and the National Institute of Military Justice, a non-partisan legal group, has announced its opposition to the measures.
While a handful of senators have expressed their willingness to modify the language in the amendment, the likelihood that it will be overturned remains slim. Seven of the nine senators absent on Thursday were Republicans who would be expected to back the measure and four of the five Democrats who voted for it seem prepared to stick by their vote. Once passed by the senate the bill would need to go to the House of Representatives.
Antonia Ferrier, a spokeswoman for the Republican moderate senator Olympia Snowe, describing her employer's concerns said: "Do we need all those lawyers going down there to hear their complaints? It seems a little extreme to her. We're talking about enemy combatants."
