"This is wrong; it is unconstitutional; it is un-American," said Sen. Patrick J. Leahy of Vermont, the top Democrat on the Senate Judiciary Committee.
The judiciary panel's chairman, Arlen Specter (R-Pa.), said, "Surely as we are standing here, if this bill is passed and habeas corpus is stricken, we'll be back on this floor again" grappling with a future ruling against it by the Supreme Court.
Still, Specter was one of 53 Republicans who joined 12 Democrats in voting for the final bill. Leahy was among 32 Democrats who opposed it, along with one independent and one Republican -- Sen. Lincoln Chafee of Rhode Island, who is locked in a tough fight for reelection in his Democratic-leaning state.
California Sens. Barbara Boxer and Dianne Feinstein, both Democrats, voted against the bill.
Civil libertarians said they planned to fight the measure in court.
"Congress is now rubber-stamping a bill that was written by the president and gives the president expansive power to detain without judicial oversight," said Vincent Warren, executive director of the Center for Constitutional Rights in New York. "It will grant the president the privilege of kings.... This unprecedented and expansive suspension of habeas corpus is utterly unconstitutional, and we will challenge it."
Sen. Lindsey Graham (R-S.C.), a military lawyer who helped write the bill, said federal judges should not be permitted to interfere with the military's handling of prisoners.
"I don't believe judges should be making military decisions in a time of war," he said. "To substitute a judge for the military in a time of war on something as basic as who our enemy is, is not only not necessary under the Constitution, it impedes the war effort."
The privilege of habeas corpus holds a venerated place in English and U.S. law. The U.S. Constitution says, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."
But it has long been unclear whether this right extended to foreign prisoners held by the U.S. military. After World War II, the Supreme Court said German war prisoners did not have a right to file writs of habeas corpus to challenge their imprisonment.
Two years ago, the high court reversed course somewhat in a case brought on behalf of detainees at the U.S. military prison in Guantanamo Bay, Cuba. In Rasul vs. Bush, the justices interpreted a 19th century measure passed by Congress as opening the door for judges to hear claims from prisoners held by the military who say they are "wholly innocent of wrongdoing."
