Fight looms over detainee provisions

The House will re-ignite a debate this week that last year sparked public outrage and a White House veto threat: Can terror suspects on U.S. soil be detained indefinitely?

Democrats and libertarian-leaning Republicans are planning to push an amendment to the Defense Authorization bill on the House floor next week that would strip out provisions allowing the military to hold terror suspects captured in the U.S.

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The amendment would undo language from last year’s National Defense Authorization Act (NDAA) and go one step further to change the 2001 Authorization for Use of Military Force (AUMF).

Opponents of the detention laws warn that U.S. citizens are at risk of indefinite military detention if the law is not changed. Proponents claim the detention laws are a necessary tool in the fight against terror and last year’s bill merely codified current U.S. law. 

House Armed Services Chairman Buck McKeon (R-Calif.) offered a fix to this year’s authorization bill granting habeas corpus rights to terror detainees.

But that didn’t go far enough for Armed Services ranking member Adam Smith (D-Wash.) and Rep. Justin Amash (R-Mich.), who are planning to offer next week’s amendment on detention.

“The problem isn’t Habeas; the problem is Americans being held without charge or trial forever,” Amash told The Hill.

The issue of military detention and U.S. citizens touched a nerve in the public last year, receiving wide coverage and getting attention from “The Daily Show” as it was debated in the Senate.

At issue is striking a balance between fighting the war on terror and guaranteeing due process rights in the Constitution.

Analysts who study military law have said that the executive branch already has authority to detain U.S. citizens.  The Supreme Court has yet to weigh in on whether citizens captured on U.S. soil could be detained indefinitely.

After the White House's veto threat over detainee provisions in last year's defense bill, lawmakers opted to water down the language. Despite the compromise, Obama issued a signing statement that said he would not detain U.S. citizens indefinitely.

Rep. John Garamendi (D-Calif.), who is backing Smith’s amendment, argued that the signing statement would not prevent future administrations from using indefinite detentions.

“The problem is emphasized in the president’s signing statement, which paraphrased said basically, ‘While this power may exist, I won’t use it,’ ” Garamendi said. “But will your successor use it? That’s what we want to get at.”

Supporters of the detention provisions argue that the military needs the ability to detain terrorists indefinitely to gather intelligence and prevent attacks. Republicans have opposed efforts to turn military suspects over to civilian courts, which the Obama administration has sought to do.

“Do I believe that language and the NDAA is a perfect protection of the liberties we cherish? Probably not,” said Rep. Jeff Landry (R-La.), who had problems with last year’s Defense authorization bill’s detainee provision.

“We’re having this debate because there’s a threat,” Landry said. “If the threat was eliminated there would be no need for the debate.”

Landry opposes Smith’s amendment, however, because he feels it’s too broad in covering anyone captured on U.S. soil, and not just American citizens.

Landry said the changes McKeon made to the detention language this year granting habeas rights to terror detainees satisfied his concerns from last year’s bill.

“What people were looking for was to ensure that there was some sort of due process when the executive detains someone,” Landry said.

A Republican House aide said Smith’s proposal goes too far with unintended consequences to the president’s traditional war powers, including providing an incentive for terrorists to come to the U.S. because they would have more rights here.

A sneak preview of next week’s floor debate on the issue played out in the Armed Services committee early Thursday morning as the authorization bill was marked up.

Smith offered and then withdrew an amendment that will be nearly identical to the one he’s introducing on the floor next week.

"It is very, very rare to give that amount of power to the president [and] take away any person's fundamental freedom and lock them up without the normal due process of law," Smith said.

“Leaving this on the books is a dangerous threat to civil liberties," he added.

Republicans, however, pushed back in the other direction, as Rep. Duncan Hunter (R-Calif.) added an amendment to the bill that puts more restrictions on releasing Guantanamo detainees. 

His amendment bumped up the Pentagon’s notification requirement to Congress to 90 days from 30 before releasing Guantanamo detainees.

Garamendi and Amash said they were optimistic that the amendment could pass on the House floor as it had support from both Democrats and Republicans. 

Amash pointed to 43 Republicans who voted against the authorization bill last year, stemming from concerns about indefinite detention.

“This cuts across the entire spectrum of the Congress,” Garamendi said. “I think we’ve got a pretty good shot, and the public has really taken hold of this issue.”

But Landry, who said he’s had a number of productive conversations with Amash on the issue, was skeptical. He argued that the public concern — and his own — was covering American citizens and due process laws, and Smith and Amash are going beyond that by covering anyone captured on U.S. soil.

The authorization bill is due to go to the floor this week, and the Senate will be marking up its bill later this month, where the detainee debate is also likely to arise again.