Legal Battle Over Detainee Bill Is Likely

The measure approved by the Senate on Thursday would close that door. The legislation says, "No court, justice or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States [who] has been determined ... to have been properly detained as an enemy combatant."

Congress passed a similar restriction in December in the Detainee Treatment Act. But in its decision in June, the Supreme Court interpreted that ban as applying to only new claims, not pending cases that had been filed earlier on behalf of Guantanamo detainees.

Under the new legislation, it would apply to all claims.

It means that detainees at Guantanamo would not be able to challenge their detention there or the rules under which they are tried. However, if a detainee is convicted in a military court, and possibly sentenced to death, he can appeal to the U.S. Court of Appeals for the District of Columbia. If that fails, he could also ask the Supreme Court to review his case.

During the House debate Wednesday, GOP lawmakers made it clear they wanted the bill to prevent the Supreme Court from, in their eyes, hampering the prosecution of suspected foreign terrorists.

"What this does is to say to the Supreme Court, 'We meant what we said when we passed the law a year ago which said [the ban on habeas corpus] should apply to people already in Guantanamo,' " said Rep. Dan Lungren (R-Gold River). "This time we really mean it. Please follow it."

But Specter on Thursday questioned whether Congress could suspend this right.

"The Constitution is explicit in the statement that habeas corpus may be suspended only with rebellion or invasion. We do not have a rebellion or an invasion," he said.

The rules for the military trials established by the new measure would generally follow those proposed by the Bush administration. Prosecutors would be able to make use of "hearsay" evidence and confessions that were obtained through coercion, so long as the military judge believed the evidence was reliable.

It is not clear whether the administration plans to try many of its detainees as war criminals. This summer, only 10 of the more than 700 men who have been held at Guantanamo had been charged with war crimes. And none had been tried when the Supreme Court struck down Bush's plan.