Too soon to celebrate.

Byline: The Register-Guard

One down, one to go in the pursuit of a policy that protects both the human rights and legal rights of prisoners in U.S. custody.

It was reassuring to witness President Bush's change of heart Thursday on Sen. John McCain's proposal to ban cruel, inhuman or degrading treatment of prisoners. The president's about-face should help to resolve the mixed messages his veto threat was sending to America and its allies.

But it's too soon to celebrate. Much of the good the McCain amendment could do for America's tarnished human rights reputation would be undone if another amendment to the same defense spending bill is allowed to become law.

The bipartisan amendment was introduced by Sen. Lindsey Graham, R-S.C., and co-sponsored by Carl Levin of Michigan, the top Democrat on the Senate Armed Services Committee, and Jon Kyl, R-Ariz. It does a number of disastrously wrong things, albeit for the right reasons.

Graham originally presented his amendment as an effort to restore some protections to foreign detainees captured by the U.S. government. Hundreds of such prisoners are being held incommunicado at Guantanamo Bay, with no means to challenge their detention or even hear the evidence against them.

The Graham-Levin-Kyl amendment gives detainees the right to timely decisions on whether they qualify as enemy combatants and creates a Senate-approved office to keep Congress informed on the status of cases. Federal judges can review cases to determine whether the U.S. military followed its own procedures. The proposal also would require automatic review of cases in which military tribunals impose prison terms of 10 years or more.

But the apparent safeguards are more than offset by the detainees' loss of the writ of habeas corpus - the oldest due process legal right in Anglo-Saxon jurisprudence. Habeas corpus allows prisoners to challenge the grounds on which they're being held and to ask federal judges to review the facts of their individual cases. About 160 habeas corpus petitions are pending from prisoners at Guantanamo.

Graham argues that the Guantanamo prisoners are foreign captives of war and don't have the same legal rights as U.S. citizens, but the Supreme Court disagrees. It ruled 6-3 last year that Guantanamo's opera- tions were not beyond the reach of U.S. courts.

Three retired senior military legal officers, 12 former federal judges, 52 leading law professors and numerous bar associations have written open letters to members of Congress urging them to reject the Graham-Levin-Kyl amendment.

In what would be a deplorable regression toward legitimizing torture, revisions to the amendment in the past week appear to allow testimony obtained through torture to be used by military tribunals to determine whether a detainee is an enemy combatant. The amendment contains wishy-washy protections riddled with qualifiers such as "to the extent practicable." But the language does nothing to prohibit the U.S. government from declaring a detainee an enemy combatant based solely on statements from another prisoner who was strapped to a waterboard and believed he was about to suffocate if he didn't tell his captors what they wanted to hear.

This unconscionable loophole stands in embarrassing contrast to last week's decision by Britain's highest court that evidence obtained through torture in other countries cannot be used in British courts. Lord James Hope, one of the judges in the case, mentioned "practices authorized for use in Guantanamo Bay by the U.S. authorities" in his written opinion, saying "some of which would shock the conscience if they were ever to be authorized for use in our own country."

The Graham-Levin-Kyl amendment began as an effort to bring some order and consistency to procedures at Guantanamo. But it has transmogrified into an abominable assault on human and legal rights of foreign prisoners, and it must not be approved in its current form.

The issues raised by the amendment are too significant to become law without debate in a must-pass defense spending bill. If Congress believes something as fundamental as habeas corpus rights should be altered, the decision to do so should be subject to hearings by the House and Senate judiciary committees and be given the careful deliberation it deserves.