Dems push bill to ban military detention for US citizens

Two Democratic lawmakers are introducing legislation Thursday that would bar the military detention of terror suspects captured in the United States. 

The legislation, introduced by Sen. Mark UdallMark UdallDemocratic primary could upend bid for Colorado seat Picking 2018 candidates pits McConnell vs. GOP groups Gorsuch's critics, running out of arguments, falsely scream 'sexist' MORE (D-Colo.) and Rep. Adam SmithAdam SmithHouse passes 6.5B defense policy bill House votes to allow Pentagon funding for gender transition Do we really want to give Trump a new nuke? MORE (D-Wash.), would strip the executive branch of the power to indefinitely detain terror suspects who are U.S. citizens or non-citizens captured on U.S. soil. 

The legislation comes in response to a public outcry last year from civil-liberties advocates as well as libertarians after Republican senators pushed for mandatory military detention of terror suspects in the National Defense Authorization Act (NDAA). 

Smith and Udall said that the federal court system has prosecuted more than 400 terrorists, and federal law enforcement has proven it can successfully handle the threat of terrorism.

“Our bill would prevent the erosion of our civil liberties and it would strengthen our national security,” Udall said at a news conference introducing the companion bills. “Even in our darkest hours we must ensure that our Constitution prevails.”

There was a wide divide in Congress last year over whether the defense authorization bill allowed for indefinite detention of U.S. citizens, with a heated debate in the Senate leading to an eleventh-hour compromise stating that the bill did not change current U.S. law.

That sparked protests from civil libertarians, who argued that the law allowed for the military to detain U.S. citizens.

President Obama opposed the military detention provisions in the defense authorization bill, threatening to veto the legislation before signing it after the conference committee gave him more leeway.

Obama also issued a signing statement indicating he would largely ignore the military detention provisions.

But Udall said that even if Obama indicated he won’t detain U.S. citizens, the executive branch should not have the ability to wield that power.

“That is the interpretation of just this president,” Udall said. “That policy won’t tie the hands of future administrations.”

Republicans argue that the president already has the power to detain al Qaeda members indefinitely from the 2001 Authorization for Use of Military Force, signed days after the Sept. 11, 2001, attack. Some Democrats, including Senate Armed Services Committee Chairman Carl LevinCarl LevinTrump and GOP wise to keep tax reform and infrastructure separate Former senator investigated man in Trump Jr. meeting for money laundering Dems abuse yet another Senate tradition to block Trump's agenda MORE (Mich.), also clashed with the Obama administration last year over its opposition to the 2012 authorization bill.

Republicans have opposed the Obama administration’s attempts to close Guantánamo Bay and to move detainees into the federal court system. They argue that military detention is needed to stop the threat of terrorism that exists in the United States and around the world.

House Armed Services Committee Chairman Buck McKeon (R-Calif) is concerned the new legislation would “go too far” by eliminating the option of military custody, spokesman Claude Chafin said.

“Under the guise of providing 'access' to civilian courts, the Smith-Udall bill would actually require that foreign terrorists like the underwear bomber be held by civilian authorities and tried in civilian courts as common criminals,” Chafin said. “Those who attack us are not mere criminals, but terrorists. ... They should be treated as such.”

Udall cited the case of the “underwear bomber,” Umar Farouk Abdulmutallab, who last month was sentenced to life in prison in a federal court, as evidence of the success of trying terror suspects in federal court.

Smith said that the legislation introduced Thursday would remove any confusion in Congress and the public over the military detention of U.S. citizens by eliminating altogether the executive branch’s ability to detain in military custody all terror suspects captured in the United States.

“More than 10 years later, one thing is clear: Our criminal justice system in the United States is 100 percent adequate to take care of this problem,” Smith said.

Other lawmakers, including Sen. Dianne FeinsteinDianne FeinsteinFeinstein: Trump Jr. will be subpoenaed if he refuses to testify The next battle in the fight against human trafficking Trump's FBI nominee passes committee, heads to full Senate MORE (D-Calif.), have introduced similar legislation tackling U.S. citizens and military detention, and some Republicans with a libertarian lean, such as Rep. Jeff Landry (La.), also have pushed to ban military detention of U.S. citizens.

Smith and Udall’s legislation, however, likely faces an uphill battle in both the House and Senate. Amendments last year on the Senate’s defense authorization bill that would have exempted U.S. citizens from military detention provisions failed.

Smith said his plan was to attach the legislation as an amendment to this year’s defense authorization bill.

In the House, Smith has 36 co-sponsors for the legislation, including two Republicans. Udall’s office did not release a list of co-sponsors.

It’s also unclear if the Obama administration would be supportive of the legislation. The administration last year raised its biggest concerns over the law tying the hands of federal law enforcement to prosecute terror cases, though it also said U.S. citizens should not be detained indefinitely. Smith said the lawmakers have been in communication with the administration, but it has not yet taken a position.