It appears that Congress is about to finally take the lead and clarify the legal status of detainees who have been languishing at Guantanamo and other sites around the world in a kind of legal limbo that has been both a blot on American jurisprudence and an invitation for criticism from the international community:

A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights.

The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.

The measure will not go far enough to appease liberals who want to treat the foreign terrorists like law abiding American citizens. And it will almost certainly trouble some conservatives who wish that the prisoners be thrown into a black hole to rot. But the compromise will solve the bureaucratic tangle that has existed between the Department of Justice and the Department of Defense who, for different reasons, have wished for such clarifying language.

One potential stumbling block is the insistence by both Senators Graham and Levin on linkage between their bill and a bill introduced by Senator John McCain that prohibits torture:

Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.

“McCain’s amendment needs to be part of the overall package, because it deals with standardizing interrogation techniques and will reestablish moral high ground for the United States,” Graham said.

McCain’s bill is almost certainly drawn too broadly as evidenced by opposition voiced by Vice President Cheney who wished to exempt the CIA from its provisions. However, if a way can be found to satisfy the Administration’s legitimate concerns while still standardizing interrogation techniques, a significant victory for the rule of law will have been achieved.

It has been a national disgrace that the detainees have been held these past 3 years with their legal status up in the air. The situation was complicated unnecessarily last year when the courts ruled that detainees had a right to a hearing on their status. The resulting flood of motions - both frivolous and serious - became a nightmare for the Justice Department and DoD who had been asking Congress to clarify what rights the detainees had in this unique legal situation. The fact that both the Administration and the Republican Congress took their own sweet time in addressing the issue only gave our international foes an opening in the propaganda war.

The compromise neatly addresses the concerns of DoD in that intelligence gained from interrogations as well as the way certain information on individual terrorists was obtained either through “National Technical Means” (eavesdropping, spy satellites, etc.) or through informants will not be used in open court by activist lawyers seeking to undermine our intelligence capabilities in the War on Terror. The bill will also give the Justice Department some guidance on how to proceed with the appeals process. And incorporating some form of the McCain bill will standardize the the Army Field Manual techniques for interrogating prisoners thus putting the nation on record that it opposes the kind of interrogations that have led to more than 400 investigations by DoD into accusations of abuse with 230 determinations that have resulted in either reprimands or court martials.

All parties involved - the Administration, and the Departments of Justice and Defense - are taking a wait and see attitude toward the bill:

An administration official briefed on the compromise said yesterday that so far, neither the Justice Department nor the Defense Department nor the White House has seen a complete package to support, although there are elements to back.

Neither Congress nor the administration wants a veto fight. That dynamic is pushing the drive for a deal that will satisfy both ends of Pennsylvania Avenue.

If satisfactory language can be found in a compromise on McCain’s bill, the Congress will have made a start toward rectifying a hazy legal situation as well as a stain on America’s honor. There are still issues to resolved including the practice of “rendition” which sends some detainees to countries that practice torture as well as the recent revelations about CIA prisons that are not subject to Congressional oversight. But this bill could become the start of a power sharing arrangement on detainees between the executive and legislative branches of government, something in the interests of the country and the people.

UPDATE

Here’s a fascinating “Tale of Two Cities.” The Captain disagrees with my position on the Senate bill to define detainee rights:

It depends on the manner of the capture of these detainees as to whether they should have access to federal court and how much jurisdiction those courts should be given. Those captured in open battle against American troops, such as in Iraq and Afghanistan, should have none. We do not want to treat battlefield captures as arrests, and have defense attorneys issuing subpoenas to American soldiers for courtroom testimony.

Actually, I think the compromise takes care of the Captain’s concerns. The appeal will come after they have been adjudicated by the military so no courtroom testimony will be forthcoming. Instead, the detainee will have a judge review both his status and sentence - a measure that could protect the innocent as well as American intelligence practices.

Ed also calls it “the best retrieval possible of a bad situation.” I agree although I see it more as a start toward Congressional oversight of the entire detainee situation which is long past due.