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."
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