The debate over terrorism suspects on Thursday divided Democrats, with Senate Armed Services Committee Chairman Carl Levin, D-Mich., squaring off over the language with Senate Judiciary Chairman Patrick Leahy, D-Vt., Senate Intelligence Chairwoman Dianne Feinstein, D-Calif., and Senate Majority Whip Dick Durbin, D-Ill.
Democratic opponents of the provisions, who offered a series of amendments to strike or water down the language, appear to face an uphill effort to find the votes to amend the detainee language as almost all Republicans and most Armed Services Committee Democrats support it.
By moving ahead with the bill without a deal—the White House threatened to veto the bill earlier Thursday—Senate Majority Leader Harry Reid, D-Nev., reduced the leverage and ability of opponents to force changes. Feinstein said she isn't confident the bill can be amended, saying only that she strongly opposes the provisions. She declined to comment on Reid’s decision to press ahead with the bill but several Democratic aides said his move caught Democratic opponents of the provision by surprise. The aides said Reid told Democrats he is eager to move ahead with the bill in the face of pressure from Republicans and his own desire to clear “must pass” bills that are ready for the floor.
The Obama administration threatened to veto the major defense authorization bill because of language paving the way for many terror suspects to be put under military custody, a sharp escalation of its battle with Congress over the future course of the war on terror.
The Senate’s version of the bill includes language effectively requiring that al-Qaida suspects captured overseas—and potentially at home—be transferred into military custody. The Pentagon opposes the provision, and many Democrats believe it would slow ongoing terror probes and remove skilled FBI interrogators from their work battling domestic threats.
"Broadly speaking, the detention provisions in this bill micromanage the work of our experienced counter-terrorism professionals, including our military commanders, intelligence professionals, seasoned counter-terrorism prosecutors, or other operatives in the field,” the White House said in a letter to the Senate Armed Services Committee. “Any bill that challenges or constrains the president's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the nation would prompt the president's senior advisers to recommend a veto."
The controversial detainee provision has strong backing from Levin, and White House and Pentagon officials have lobbied against the measure championed by a leading Democratic lawmaker. The Pentagon doesn’t want to assume custody of terror suspects or have to deal with the legal complexities of detaining, questioning, or trying them, so Pentagon aides expressed dismay yesterday when Levin’s panel approved the measure.
Levin and other backers of the provision believe the administration’s concerns are overblown. The bill underwent several changes since the provision was first crafted last September, and proponents argue that the White House’s primary concerns have all been addressed. In a floor statement Thursday, Levin noted that Obama would retain the ability to determine whether suspects remain in civilian custody or be transferred to the military, as well as whether they’d be charged in civilian courts or before a military commission. The lawmaker said the provision expressly allows the FBI or other civilian agencies to continue ongoing probes or interrogations. And he said the language excludes all U.S. citizens and immigrants in the country legally.
“The only covered persons left are those who are illegally in this country, or who arrive as tourists or on some other short-term basis,” Levin said. "That’s a small remaining category, but an important one, because it includes the terrorist who clandestinely arrives in the United States with the objective of attacking military or other targets here.”
The veto threat caps a tumultuous few months for the provision, which made it into the National Defense Authorization Act last September. The provision, if adapted and signed into law, would have significant legal repercussions for the ongoing war on terror. It would mean that militants arrested overseas or while living in the U.S. illegally—either during the planning of an attack or in the aftermath of a strike—could be placed under military custody rather than being left to civilian law enforcement agencies like the FBI. While it wouldn't apply to American citizens, legal experts believe it is written broadly enough to encompass large numbers of terror suspects.
Raha Wala, a legal analyst for Human Rights First, warned that the provision would “weaken our counterterrorism response."