Revised Defense Bill Still Gives President Ultimate Authority To Detain Citizens

Congress would give the president ultimate authority to detain American citizens indefinitely in military custody under the final version of a defense bill expected to pass this week.

President Barack Obama and Vice President Joe Biden listen to Rob Nabors, Assistant to the President for Legislative Affairs, during a meeting with senior advisors in the Oval Office, Dec. 13, 2011. Photo: Pete Souza/The White House

The National Defense Authorization Act was facing the threat of a presidential veto after the White House complained that it restricted the administration’s ability to fight terrorism and raised “serious and unsettled legal questions.”

The conference committee working out the differences between the Senate and House versions of the bill added and amended several provisions in an attempt to produce legislation that would pass muster with President Barack Obama, who appealed personally for fixes.

But the version released Monday night still contains the authority to indefinitely imprison suspects linked to al Qaeda or associated groups, including citizens captured in the United States.

Human rights and civil liberties advocates are calling on President Obama to veto the Defense authorization bill over concerns about U.S. citizens being detained indefinitely.

“We have [in the bill] the authority to detain without charge or trial terrorism suspects,” said Raha Wala, a lawyer with the Law and Security Program of the group Human Rights First. “There aren’t any material changes to the indefinite detention provision,” he said in a conference call organized by the progressive National Security Network.

While the president’s veto threat — on which he has not yet indicated whether he’ll follow through — is focused on the bill tying law enforcement’s hands in the investigation, prosecution and detention of terror suspects — advocacy groups are pushing for him to veto because of the bill’s indefinite military detention provisions.

“The latest version of the defense authorization bill does nothing to address the bill’s core problems — legislated indefinite detention without charge and the militarization of law enforcement,” Andrea Prasow of Human Rights Watch said in a statement.

To try to meet the White House’s concerns, lawmakers shifted the responsibility for granting waivers under the legislation from the Defense Department to the president. They also added language to state that civilian law enforcement retains the authority to investigate and interrogate terrorism suspects, even though the bill requires that those suspects be held by the military.

“What does that actually mean in practice?” asked Heather Hurlburt, executive director of the National Security Network. “It’s unclear, and the people who have to implement it think it’s unclear, and it’s just inviting years of litigation. … In some ways, it makes it even worse.”

“The national security establishment really comprehensively rejects these provisions as representing the militarization of our justice system,” Hurlburt added. “You’re deliberately throwing things back into the courts, which is a very strange thing to be seeing.”

Two retired Marine generals, Charles Krulak and Joseph Hoa, who have worked with Human Rights First to fight the legislation, wrote a New York Times op-ed on Tuesday titled “Guantánamo Forever?”

“One provision would authorize the military to indefinitely detain without charge people suspected of involvement with terrorism, including United States citizens apprehended on American soil,” they wrote. “Due process would be a thing of the past.”

Proponents pf the bill have argued that the it is designed is to spell out what is already being done so that there is less uncertainty surrounding counterterrorism efforts.

Critics of the legislation say the proposal allows the military to capture prosecute U.S. citizens and terror suspects on U.S. soil.

But current law remains unsettled. One American accomplice of al Qaeda who was held in military detention was Jose Padilla. An appeals court ruled that he could be held by the military, but the Bush administration transferred him to a civilian court before the issue advanced to the Supreme Court. Padilla was convicted in federal court, one of more than 400 such terrorism convictions since 9/11 that would, for the most part, become much more difficult under the latest legislation.

The bill also bars the expenditure of any funds to close the Guantanamo Bay, Cuba, prison for terrorism suspects, which likely would have to be expanded to hold all the people who could no longer remain in the U.S. court system.

White House officials were still weighing whether to veto the new bill, which authorizes the budget and sets policy for the Defense Department. The budget itself is expected to pass separately later this week in a larger legislative package to fund the government.

The legislation is likely to pass the Senate and the House this week. [via Huffington Post and The Hill]

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