Nonetheless, Sen. Mark Udall (D-Colo.) has offered an amendment — which could see a Senate vote early Tuesday afternoon — that would strike this entire section and replace it with language that requires the military to make recommendations on how detainee policy should change. Udall said his replacement language is needed in part because the Obama administration has come out against the bill.
Despite the language exempting U.S. citizens from the military custody requirement, Udall said he also fears the language could apply to U.S. citizens in a way that represents an “unprecedented threat to our constitutional liberties.”
Udall’s language was supported by Democratic Sens. Dick Durbin (Ill.) and Jim Webb (Va.), but as expected, it faced sharp opposition from several other Democrats and Republicans, many of whom pointed out that the detainee language was approved on a bipartisan basis in committee.
Several, including Sen. Lindsey Graham (R-S.C.), noted that a U.S. citizen suspected of aiding al Qaeda would be given his or her right to trial.
“The idea that an American citizen helping al Qaeda doesn’t get due process is just a lie,” Graham said.
Senate Armed Services Committee Chairman Carl Levin (D-Mich.) reiterated that point, and said the section on required military detention only takes place if it is “determined” that a person is aiding al Qaeda. He said this means the administration would in some way make this determination before holding someone in military custody.
Sens. Joe Lieberman (I-Conn.) and Saxby Chambliss (R-Ga.) also rose in favor of the detainee language.
The Obama administration said in a Nov. 17 news release that it opposes the detainee language in the bill, and cast its provisions as an effort to constrain the administration’s abilities to handle detainees as it sees fit.
“The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects,” the White House said in the release. “This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals.”
But Graham in particular argued that the issue is less about tying the administration’s hands, and more about ensuring that enemy combatants are treated as such, and not as typical criminals. Graham spent several minutes arguing that the provision in the bill is meant to prevent what he said was a preference in the Obama administration to subject these combatants to criminal courts in the United States.
“That’s exactly what you want, and that will destroy our ability to make us safe,” Graham said of those who support Udall’s amendment. “You should not require this country to criminalize what is an act of war against the people of the United States.”
Graham also said this treatment should be given to U.S. citizens as well, but again, only after it is shown that they have chosen to become enemy combatants.
“If you’re an American citizen and you betray your country, you’re going to be held in military custody and you’re going to be questioned about what you know,” he said, “and you’re not going to be given a lawyer if our national security interests dictate that you not be given a lawyer and go into the criminal justice system, because we’re not fighting a crime, we’re fighting a war.”