Senate ready for showdown with Obama over bill with detainee language

The Senate voted to end debate Wednesday on a defense spending bill, setting the stage for a showdown between Congress and the White House over the bill’s controversial provisions for detaining and prosecuting terror suspects. 

The White House has threatened to veto the legislation because of language that mandates military custody of terror suspects, but Wednesday’s 88-12 cloture vote signals that the bill — which could pass as early as Thursday — will likely have the detainee provisions included in the chamber’s final legislation.

“If [President Obama] were to veto this bill, it would be saying that giving rights to terrorists is more important than passing the defense authorization, which has many other important provisions,” Sen. Kelly AyotteKelly Ann AyotteThe Hill's Morning Report: Koch Network re-evaluating midterm strategy amid frustrations with GOP Audit finds US Defense Department wasted hundreds of millions of taxpayer dollars US sends A-10 squadron to Afghanistan for first time in three years MORE (R-N.H.) told The Hill.

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The White House is standing by its veto threat, a White House spokesman said in an email to The Hill Wednesday. 

While the Senate bill still must go through conference committee, the current legislation would force the White House to decide whether to follow through on its veto threat. 

Since he took office, President Obama has fought with Congress about how to detain and prosecute terror suspects, beginning with the president’s desire to close Guantánamo Bay. 

But the defense spending bill has passed for 50 years straight. The White House would be left open to charges it is playing politics with the nation’s security if Obama were to veto what is considered must-pass legislation.

Ayotte said it would be a “big mistake” for Obama to veto it.

The Senate on Tuesday rejected, by a vote of 38-60, an attempt from Sen. Mark UdallMark Emery UdallSenate GOP rejects Trump’s call to go big on gun legislation Democratic primary could upend bid for Colorado seat Picking 2018 candidates pits McConnell vs. GOP groups MORE (D-Colo.), an Armed Services committee member, to strip the detainee provisions from the bill. All but two Republicans voted against the amendment, and 16 Democrats joined them to help defeat it.

The fight over detainees heated up just before Thanksgiving when Senate Armed Services Committee Chairman Carl LevinCarl Milton LevinHow House Republicans scrambled the Russia probe Congress dangerously wields its oversight power in Russia probe The Hill's Morning Report — Sponsored by CVS Health — Trump’s love-hate relationship with the Senate MORE (D-Mich.) and ranking member Sen. John McCainJohn Sidney McCainTrump's plan to claw back spending hits wall in Congress Defense bill moves forward with lawmakers thinking about McCain How House Republicans scrambled the Russia probe MORE (R-Ariz.) brokered a compromise on the detainee language. 

The defense bill mandates military custody for terror suspects while granting the executive branch a waiver to prosecute terror suspects in civilian courts.

The Obama administration says this is an unacceptable burden for law enforcement counterterrorism efforts, and Defense Secretary Leon Panetta, Director of National Intelligence James Clapper and FBI Director Robert Mueller have all written letters to senators expressing their opposition. 

Intelligence Committee Chairwoman Dianne FeinsteinDianne Emiel FeinsteinCongress — when considering women’s health, don’t forget about lung cancer Overnight Energy: Pruitt taps man behind 'lock her up' chant for EPA office | Watchdog to review EPA email policies | Three Republicans join climate caucus Man who coined 'lock her up' chant to lead EPA's Pacific Southwest office MORE (D-Calif.) and Judiciary Committee Chairman Patrick LeahyPatrick Joseph LeahyDem senator mocks Pruitt over alleged security threats: 'Nobody even knows who you are' Pruitt tells senators: ‘I share your concerns about some of these decisions’ Protesters hold up 'fire him' signs behind Pruitt during hearing MORE (D-Vt.) have also opposed Levin and McCain’s compromise, sparking an open disagreement among Democratic committee chairmen.

Udall, Feinstein and Leahy, who voted for cloture, were still hoping they could change the detainee provisions in the bill through amendments before it reached a final vote. 

None of the senators were tipping their hands as to whether they would support the final bill with the detention rules still included.

Feinstein offered two amendments that would ban indefinite detention of American citizens and provide more flexibility for counterterrorism investigations.

“I don’t know whether we can win this or not, but I think it’s important we try,” Feinstein said on the floor Wednesday. “I have no doubt this is going to be litigated.”

As the Senate prepared to vote on dozens of amendments Wednesday, the most contentious debate focused on whether American citizens could be held indefinitely in military custody, a provision that has united some Democrats with libertarian Sen. Rand PaulRandal (Rand) Howard PaulKentucky Dems look to vault themselves in deep-red district Overnight Defense: Senate confirms Haspel as CIA chief | Trump offers Kim 'protections' if he gives up nukes | Dem amendments target Trump military parade Hillicon Valley: Lawmakers target Chinese tech giants | Dems move to save top cyber post | Trump gets a new CIA chief | Ryan delays election security briefing | Twitter CEO meets lawmakers MORE (R-Ky.) in opposition.

Udall warned that holding citizens in military custody indefinitely “cuts directly against principles we hold dear: innocent until proven guilty.”

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Sen. Lindsey GrahamLindsey Olin GrahamGraham: Trump will 'end North Korea’s threat to the American homeland' in his first term Sunday shows preview: Lawmakers weigh in after Texas school shooting Kim Jong Un surprises with savvy power plays MORE (R-S.C.) argued that al Qaeda members are enemy combatants and should be held and prosecuted by the military. He and fellow Republicans have been critical of reading terror suspects Miranda rights.

“When they say, ‘I want a lawyer,’ you tell them, ‘Shut up,’ ” Graham said. “ ‘You don’t get a lawyer. You’re an enemy combatant, and we’re going to talk to you about why you joined al Qaeda.’ ”

The administration’s statement of its policy said that military custody inside the U.S. “would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

If the Senate bill passes, it would still need to go through conference with the House legislation, which contains some similar provisions on terror suspects. The House bill doesn’t include the Senate’s mandatory military detention, but House Armed Services Committee Chairman Buck McKeon (R-Calif.) has introduced similar stand-alone legislation, making him an unlikely candidate to remove the detainee language in conference.