CQ TODAY ONLINE NEWS
Updated Oct. 4, 2011 – 4:11 p.m.
Detainee Provisions Stall Defense Bill
By Frank Oliveri and Tim Starks, CQ Staff
The leaders of the Senate defense policy panel are discussing a request from the majority leader to strike from their authorization bill provisions affecting detainees in the war on terrorism.
In a letter to the chairman and ranking Republican on the Armed Services Committee on Tuesday, Senate Majority Leader
“I strongly believe that we must maintain the capability and flexibility to effectively apply the full range of tools at our disposal to combat terrorism,” Reid, D-Nev., wrote. “This includes the use of our criminal justice system, which has accumulated an impressive record of success in bringing terrorists to justice.”
Reid said that the provisions, which the White House opposes, would undermine national security.
“I don’t know how we’re going to do it, but it’s important to get the bill out,” Levin, D-Mich., said.
McCain pointed out that the provisions received support from 25 of 26 senators in committee, and that panel members clearly thought that suspected terrorists “should fall under military, non-civilian supervision and trials.”
Levin said he had not expected the administration’s opposition to the provisions, although he didn’t vet the language with White House officials.
“The bill is very carefully designed to provide a waiver for the administration,” Levin said, adding that the language pertains to “a very narrow class of people: al Qaeda and people affiliated with al Qaeda.”
“We worked hard to address legitimate concerns. We should not be intruding on executive branch authority here. I’m opposed to any restrictions,” Levin said. But, he added, “We also have to address some individuals who want military detention.”
McCain said he and Levin have offered to meet with Reid to discuss a way forward.
Radically Different Strategy
Detainee Provisions Stall Defense Bill
The first provision of concern would require that prisoners taken in a war on terror remain in custody — without a trial — until hostilities have been concluded.
The second provision would make it mandatory that terrorism detainees be held by the military alone. It was a direct response, according to a senior congressional aide, to the Dec. 25, 2009, bombing attempt in Detroit in which the suspect almost immediately disclosed his affiliation with al Qaeda, but was put in civilian police custody and questioned for less than an hour before being given his Miranda rights warning.
“Because he was in law enforcement civilian custody,” the aide wrote in an email, “he was subject to federal criminal procedure rules that required him to be presented to a federal magistrate in a short period of time after his arrest (normally within 24-48 hours) to be informed of the charges against him and to be assigned a lawyer.”
In response, the provision would require that regardless of place of capture, members of al Qaeda or its affiliates who are captured while carrying out an attack — or while planning or attempting an attack — on the United States or its coalition partners be held in military custody.
The aide explained, “Military custody removes the requirement for immediate Miranda warnings so an intelligence interrogation can take place for as long as needed to determine if another attack is imminent, or if the detainee is acting as a ‘lone wolf.’ Military custody also removes the need for presentment shortly after capture to a magistrate.”
The third provision would require that unless the secretary of Defense submits to Congress special certifications detailed in the bill, the secretary could not spend “any amounts authorized to be appropriated or otherwise available to the Department of Defense to transfer any individual detained at Guantánamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity.”
The Obama administration has used transfers to draw down the numbers of detainees being held in Guantánamo Bay, toward the president’s goal of shutting down the U.S. military-run detention facility. Congress also routinely blocks the administration from transferring detainees to U.S.-based detention facilities.
McCain first mentioned the dispute over the provisions on the Senate floor on Monday.
“My response to the majority leader has been: Those are issues the Senate should debate; those are issues the Senate should make its judgment on,” he said. “And I assured him — and I assure him again — that I will consider the objections and reservations that the president and the executive branch have to some provisions in the bill, particularly concerning detainee treatment.”
“But that does not mean we should not take up the bill,” McCain said. “It does not mean we should not take up the defense authorization bill and the appropriations bills following.”
Reid replied that concerns are so high about the provisions that both the Judiciary and Intelligence panels have asked for hearings on them.
Further, in his letter, Reid quoted a speech by deputy national security adviser John O. Brennan in which he noted that the legislation would authorize a radically different strategy.
“Under that approach, we would never be able to turn the page on Guantánamo,” Brennan said in the speech. “Our counterterrorism professionals would be compelled to hold all captured terrorists in military custody, casting aside our most effective and time-tested tool for bringing suspected terrorists to justice — our federal courts.”
Detainee Provisions Stall Defense Bill
On the Senate floor, Reid reminded McCain that last year, to debate an issue separately, Reid pulled a provision that repealed the ban on gay service members serving openly from the fiscal 2011 defense authorization bill (PL 111-383). The repeal itself was enacted (PL 111-321). Reid suggested that the detainee provisions be treated the same way.
But McCain favored bringing up the defense bill as written and offering amendments to change it. He also noted that the House would have a say in the matter, and the president may also veto the legislation if he is so inclined.
“I think it is something we can work out,” McCain said. “I would hope we would be able to debate and amend, which is the usual way we address issues in this body, rather than refusing to bring legislation to the floor because there is a particular objection to it.”
John M. Donnelly contributed to this story.
First posted Oct. 4, 2011 11:59 a.m.