The Senate came within four votes of pushing ahead with a measure giving prisoners at Guantanamo Navy Base — designated “illegal enemy combatants” by the U.S. military — the right to go before a federal judge and seek their freedom.
Six Republican senators, including two up for re-election next year, Sen. John Sununu of New Hampshire and Sen. Gordon Smith of Oregon, voted to move ahead with the measure, co-sponsored by Judiciary Committee chairman Sen. Patrick Leahy, D-Vermont and Sen. Arlen Specter, R- Pa.
The procedural motion needed 60 votes to pass; it got 56.
But as sometimes happens in the Senate, how the vote played out over several minutes on the Senate floor supplied a drama not reflected in the final 56-to-43 tally.
Sen. Lindsey Graham, R- S.C., the leading opponent of giving habeas corpus rights to Guantanamo detainees, joined in intense discussion with three Republican senators before they cast their votes, Sen. Olympia Snowe of Maine, Sen. Susan Collins of Maine, and Sen. Lisa Murkowski of Alaska.
Collins and Murkowski voted against the motion to push ahead with the bill.
Snowe switches her vote
Snowe at first also voted against the motion.
But then after a few minutes, right at the end of the roll call, Snowe returned to the clerk and switched her vote to ‘yes,’ — the position taken by all Senate Democrats, except independent Democrat Sen. Joe Lieberman of Connecticut.
When the tally was announced by the presiding officer, it appeared from the Senate gallery that Collins was quite chagrined. She had a discussion with Senate Republican Whip Trent Lott, who is in charge of counting votes on the Republican side.
With the tally at 56 to 43, the Republican leadership did not need Collins’ vote to defeat the habeas measure.
Collins, unlike Snowe and Murkowski, is up for re-election next year.
Underscoring the potential electoral consequences, the liberal group People for the American Way issued a statement after the vote saying, “It raises the question of whether these 43 senators heard the judgment of the people last November, when they resoundingly defeated many of the President’s allies at the polls.”
The seven freshman Democrats elected last November voted for the habeas proposal.
Collins explains her vote
After the vote, Collins told reporters that her vote was “consistent with my previous votes. What I would like to see was system where detainees have one bite at the apple; they’re allowed to file one challenge in federal court to challenge their designated and detainment. What the bill that Sens. Leahy and Specter proposed would have allowed for repeated habeas petitions to clog the federal courts, to give far more rights to these detainees than prisoners of war have. And I don’t think that’s a good system.”
She was she was still working on another proposal that would provide “increased due process” for Guantanamo detainees.
“I was frustrated that there was not an opportunity to find a middle ground on this, to allow one chance to challenge the designation as an enemy combatant and the detention. That, I do think, should occur in federal court," Collins said.
"You can appeal the designation of the military tribunal, but I’d like to see an earlier ability for detainees to challenge the designation and detention," she said. "So I was talking to Sen. Graham about whether there was a way to provide those rights that would fall sort of full habeas rights which allow challenges on living conditions and a wide variety of things.”
“I don’t think this vote is the end of the line,” Specter said after the vote, indicating that he’ll try to find another occasion to put his habeas provision to a new vote. “There were quite a lot of people on the Republican side, who were wavering on it, whom I talked to. We’ll find a way.”
Specter said that on the floor right before the vote he’d persuaded one Republicans to vote with him, but he didn’t identify who that senator was.
Last year, Congress passed the Military Commissions Act which decided that illegal enemy combatants who are not U.S. citizens could not go to court by using the writ of habeas corpus, a legal procedure to challenge detention.
Last year, on a 51-48 vote, the Senate rebuffed an attempt to ensure that combatants have habeas corpus rights.
One of those voting last year to ensure that enemy combatants have habeas corpus rights Lieberman.
Lieberman switch from last year
But Lieberman voted Wednesday against moving ahead with the Leahy-Specter habeas proposal.
“Look, we’ve got to remember that these are not normal criminal defendants being brought into a federal court in the United States,” Lieberman told reporters Tuesday. “These are people seized in a war, the war against terrorism.”
“If you’re a citizen of the United States, you’ve got a right to habeas. If you’re not a citizen, and you’re declared an illegal enemy combatant and adjudicated to be so after one of these military tribunals, I don’t think you have a right to go to court on a habeas action.”
Traditionally, enemy combatants did not have habeas rights, until the Supreme Court decide they did in a 2004 case called Rasul v Bush.
In February, the U.S. Court of Appeals for the District of Columbia upheld the provision in the Military Commissions Act which held that enemy combatants were not entitled to the writ of habeas corpus.
The Supreme Court will decide the fate of that provision in a case to be heard in the next few months.