CQ TODAY ONLINE NEWS
Dec. 1, 2011 – 11:26 p.m.
Detainee Deal Sets Stage for Battle With House
By Frank Oliveri, CQ Staff
Differences flared this week in Congress over detainee-related provisions, which, while settled in the Senate for now, will reignite when both chambers work to clear a compromise measure later this month.
The Senate and House versions of the fiscal 2012 defense authorization bill (
Senate opponents who charged that the measure would expose U.S. citizens accused of terrorist activities to the military’s control — with no limit on the time they could be held and interrogated — struck a last-minute compromise with Armed Services Committee leaders Thursday. The revised language states that the bill would not affect existing law relating to the detention of U.S. citizens and lawful residents, effectively leaving it to the Supreme Court to decide.
“If, as some argue, the law does not allow that, then it continues that way,” Armed Services Chairman
The Senate passed its bill (
The House version, however, would require military commission trials for all accused terrorists. It would bar transfers of any terrorist suspects held anywhere in the world to the United States. And it would toughen the review process for those held and restrict the transfer of suspects to other nations.
The stark differences — combined with the strong emotions surrounding the issue and political calculations relating to the 2012 presidential election — could make it very difficult for the two chambers to bridge the gap.
Executive Decision
The Obama administration, for its part, has been hostile toward both chambers’ detainee language, regarding each as a limitation on counterterrorism officials’ flexibility in handling accused terrorists. The White House threatened to veto each version of the bill over the provisions, although it is unclear whether the compromise Senate language could provide the administration a way out from that threat.
At stake are not only another attempt to further define the management and handling of suspects taken in the war on terrorism, but also the defense policy bill itself. A veto and subsequent failure to override it could jeopardize final passage of the measure — given the late hour and each chamber’s long to-do list — for the first time in more than 40 years.
For lengthy periods on Wednesday and again Thursday, the Senate engaged in a debate the likes of which is rarely seen these days.
Partisanship, inflamed rhetoric and demonization were replaced with ideas, deliberation and genuine passion. Each side argued directly to people in the visitors’ gallery for the well-being and safety of the American people with intensity, and sometimes anger. In the end, two lawmakers on opposite sides of the issue — Majority Whip
In a time of deep political polarization, the tone of the debate transcended recent partisan rancor, in part, because in some cases Democrats opposed Democrats and Republicans took on Republicans. But there was also a recognition by lawmakers that the issues would be carefully reviewed by the public and, likely, the Supreme Court.
Detainee Deal Sets Stage for Battle With House
At issue were amendments that would have removed the detainee provisions entirely or included words to exclude American citizens, who they argued should be afforded constitutional protections, guaranteeing the right against improper seizure of property, or themselves, and of a speedy trial under law.
Two Sides of the Same Coin
Interestingly, both sides debating the issue on the Senate floor argued the other’s preference would limit the president’s flexibility — an argument offered by the White House against both the Senate and House provisions.
Colorado Democrat
“At the heart of our concern is . . . that we have not taken enough time to listen to our counterterrorism community,” Udall said.
His amendment would have struck two provisions in the bill affecting detainees.
“It is not how I envision the Senate operating,” he said.
South Carolina Republican
He cited the case of José Padilla, who was arrested in Chicago on May 8, 2002, on suspicion of plotting a radiological bomb attack.
“The man was held five years as an enemy combatant, went to the 4th Circuit Court of Appeals, and here is what that court said: ‘You can interrogate that person in an intelligence-gathering situation,’ ” Graham said. “The only thing you have to do is provide them a lawyer for their habeas appeal review. . . . They do get due process.”
Udall also argued that the provisions in the bill would in effect repeal the Posse Comitatus Act of 1878, which is a prohibition on the military being used for law enforcement functions.
Whose Turf Is It Anyway?
“This is the central difference between us,” Graham said. “I don’t believe fighting al Qaeda is a law enforcement function. I believe our military should be deeply involved in fighting these guys at home and abroad.”
Detainee Deal Sets Stage for Battle With House
Treating terrorists as criminals, he said, takes away a powerful interrogation tool: time.
But Durbin, also an attorney, challenged Graham’s assumptions.
“The provision which they include in this bill is a substantial and dramatic departure in American law when it comes to fighting terrorism,” the Illinois Democrat said.
He argued that by requiring detention under military control, the president loses flexibility and what has been a successful tool in combating terrorism: the federal court system, which has prosecuted 300 suspected terrorists since 2001.
“Yes, they have been read the Miranda rights, and, yes, they have been prosecuted and sent to prison,” he said.
During the same period, military tribunals have convicted six terrorists.
But Levin, a supporter of the original provision as well as the compromise, charged that Durbin was misrepresenting facts, and launched a terse cross examination of Durbin.
Levin raised the case of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an illegal enemy combatant. Levin highlighted one sentence from the Supreme Court decision on the case: “There is no bar to this nation’s holding one of its own citizens as an enemy combatant.”
Levin repeatedly asked Durbin to agree that the court made that determination, but Durbin each time insisted it applied only to Hamdi, not more broadly. He eventually said the court’s assertion had not yet been challenged.
Further, Levin charged that the section being so strongly opposed was actually written by the administration. In the Statement of Administration Policy on the bill, the White House argued that the provision is unnecessary because the ability to detain American citizens this way already exists under law.
The provision itself, section 1031, refers only to “covered persons” under the law that authorized the war on terrorism (PL 107-40), with covered persons defined as anyone who took part in the Sept. 11 attacks, or a “person who was a part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”
Further, he said the provision in the bill mandating military custody, section 1032, already includes a clause exempting U.S. citizens and carries a presidential waiver “to make this flexible.”
In the end, the compromise, orchestrated by Levin and California Democratic Sen.
Detainee Deal Sets Stage for Battle With House
Feinstein said she had assurances that Armed Services Committee leaders would fight for the compromise language during conference negotiations on the bill with the House, a pledge Graham repeated on the Senate floor.
Megan Scully contributed to this story.