The Senate made a gallant effort last week to justify its former reputation as the world’s greatest deliberative body as it tried to define the government’s authority to detain suspected terrorists. The week began with a bipartisan compromise fashioned by two senators with experience generally taking the high road on the issues and ended on Dec. 1 with a thorough, and well-reasoned, floor debate.
Despite those indicia of legislative statesmanship, the detention provisions included in the National Defense Authorization Act represent a step backward in the United States’ war against al Qaeda. Once again, Congress wants to micromanage the Obama administration’s enforcement tactics against al Qaeda members by limiting prosecutions in federal courts in favor of trials in the still unproven system of military commissions. In addition, the Senate majority apparently hopes courts will allow use of military-style detention and interrogation against suspected terrorists even if they are U.S. citizens arrested within the United States.
True, the two sections at issue could have been worse. In section 1032, the bill supposedly mandates military detention for persons “determined to be part of al Qaeda or associated forces” who “have participated in a planned or actual attack or attempted attack on the United States or its coalition partners.” But it allows the administration to waive that requirement if it shows that a waiver would best serve the interest of national security.
The mandatory military detention provision would not apply to U.S. citizens or lawful permanent residents. But in section 1031, the bill leaves unclear whether the general authority to detain suspected members of al Qaeda, the Taliban, or associated forces applies to U.S. citizens. An earlier version had been written to apply to U.S. citizens unless prohibited by the Constitution.
In fashioning the compromise, Sens. Carl Levin, D-Mich., and John McCain, R-Ariz., chairman and ranking member respectively of the Armed Services Committee, said it was designed to leave the law on the issue unchanged. In effect, that would leave as the last word on the subject the Supreme Court’s somewhat cryptic decision in Hamdi v. Rumsfeld (2004). That ruling allowed military detention of a U.S. citizen captured abroad but left unanswered the question of military detention for a citizen arrested within the United States.
In Senate debate last week, California Democrat Dianne Feinstein, who chairs the Senate Intelligence Committee, passionately argued against allowing indefinite military detention of U.S. citizens. “This country is special because we have certain values, and due process of law is one of those values,” Feinstein said. “So I object. I object to holding American citizens without trial.”
From the opposite side, South Carolina Republican Lindsey Graham, a former military lawyer, argued with equal force in favor of allowing military detention for U.S. citizens: “I am just saying, to any American citizen: If you want to help al-Qaida, you do so at your own peril,” Graham said. “You can get killed in the process. You can get detained indefinitely.”
Feinstein’s amendment failed on a mostly party-line 45-55 vote. Three Republicans voted in favor: Illinois moderate Mark Kirk and the libertarian-minded Mike Lee of Utah and Rand Paul of Kentucky. But the amendment fell short because 10 Democrats joined 45 Republicans in opposing it.
Feinstein succeeded, however, with a second amendment that makes explicit that the provision has no effect on existing authority to detain U.S. citizens. Adopted with only one dissenting vote, the amendment effectively leaves it to the courts to answer the question left unresolved in Hamdi. In debate, Feinstein said both Levin and McCain had promised to defend that version of the legislation in conference with the House.
The House version of the defense authorization bill is more stringent in several respects, including in its provision to require military commission trials for all suspected terrorists. The House version also would bar transferring suspected terrorists captured abroad into the United States and make it harder for the administration to transfer any of the current Guantanamo detainees to other countries. The Senate’s bill generally leaves those issues untouched.
The preference in both chambers for military over civilian trials for suspected terrorists elevates ideological posturing over fact-based decision-making. As Feinstein and others pointed out, the government has successfully prosecuted hundreds of suspected terrorists since 9/11, under presidents of both parties: Republican George W. Bush and Democrat Barack Obama. That list extends from “shoe bomber” Richard Reid, serving a life sentence for his foiled aircraft bomb attempt in December 2001, to Faisal Shahzad, also serving a life sentence for his attempted Times Square bombing in May 2010.
Major administration officials, including Defense Secretary Leon Panetta, CIA Director David Petraeus, and FBI Director Robert Mueller, argued against those provisions as the bills moved through the House and Senate. After the Senate action, White House officials raised the possibility of a veto.
The administration gave way earlier this year, however, when Congress prohibited bringing any Guantanamo detainees to the United States for trial in civilian courts. The result has been to slow the trial of Khalid Sheikh Mohammed and the other alleged 9/11 co-conspirators. Facts and logic notwithstanding, Obama may well find he has little choice again if Congress insists on dictating where best to prosecute suspected al Qaeda members.