By Jeremy Herb - 11/25/12 11:00 AM EST
Sen. Rand Paul (R-Ky.) is bringing a new — and more aggressive — approach to a longstanding debate over the Defense authorization bill, threatening to filibuster the bill to get a vote on his amendment limiting indefinite detention.
Paul’s amendment takes a new tack to curb the military’s ability to indefinitely detain U.S. citizens suspected of terrorism by affirming they have the right to a speedy trial by jury under the Sixth Amendment.
Paul’s filibuster threat could throw into flux what’s already been a long-winding road to the floor for the Defense authorization bill, which Armed Services Committee leaders have been clamoring to get on the floor since it passed out of committee in May.
Senate Majority Leader Harry Reid (D-Nev.) said last week that he would move to the Defense bill after the Thanksgiving holiday, and would allow for an open amendment process with a limited number of amendments managed by Senate Armed Services Chairman Carl Levin (D-Mich.) and ranking member John McCain (R-Ariz.).
The day after Reid said the Senate would move to the defense bill, however, Paul put a hold on the legislation, a move Paul took because there was not an agreement to vote on his amendment, according to his office.
The wide-ranging defense authorization bill, which sets defense policy and authorizes more than $600 billion in Pentagon spending, can attract hundreds of amendments and eat up a big chunk of floor time.
In the midst of a jam-packed lame-duck session, Levin and McCain are looking to get through the bill within three days and want to limit the amendments that receive votes.
Levin told reporters last week that he had hoped the bill would be allowed to proceed without a filibuster, and that there would be agreement for a limited number of amendments to be chosen by the floor managers.
Levin and McCain have urged Reid to get the authorization bill — which has passed for 50 years straight — on the Senate floor for months, but Reid did not do so before the election, because he did not want to give Republicans the opportunity to use it to bash Democrats on sequestration.
Levin and Paul’s offices declined to comment on where negotiations currently stand with Paul’s amendment. That appears to be the only hurdle remaining before the Senate could bypass a cloture vote and proceed straight to amendments on the bill next week.
Reid complained on the Senate floor last Thursday that Republicans “couldn’t take yes for an answer” and had blocked the defense bill.
But Paul’s hold is on an issue where his libertarian-leaning followers side with liberals, not conservatives.
The indefinite detention provisions in last year’s Defense authorization bill sparked several days of heated debate on the floor, with Sens. Mark Udall (D-Colo.) and Dianne Feinstein (D-Calif.) debating their Democratic colleague Levin, who sided in favor of the detention measures with McCain and Sen. Lindsey Graham (R-Calif.).
Udall and Feinstein were concerned that the bill would allow the U.S. government to detain indefinitely U.S. citizens accused of terrorism. McCain and his allies argued that the bill only codified detention powers already given to the Executive Branch in the 2001 Authorization for the Use of Military Force (AUMF).
The Obama administration threatened to veto the bill over the detention provisions, sparking a rare dispute with Levin. In the end, a compromise measure was reached that stated the bill did not alter any existing laws on the detention of U.S. citizens.
The White House also issued a signing statement that signaled it would not use military detention for U.S. citizens suspected of terrorism.
Still, liberal and libertarian groups warned that future administration’s would not be bound by the signing statement, and the law still did allow the Executive Branch to hold U.S. citizens indefinitely.
This year, House Armed Services ranking member Adam Smith (D-Wash.) teamed up with libertarian Rep. Justin Amash (R_Mich.) to try to undo the detention laws during the House debate on the Defense authorization bill.
Their amendment would have scaled back the defense authorization language and the AUMF, requiring U.S. citizens to go through Article III courts and not military detention, but it failed to pass.
When the Senate bill was in committee in May, Udall said he was waiting until the legislation got to the full floor to try and advocate for a similar amendment as Smith’s.
Paul’s amendment looks to limit indefinite detention of U.S. citizens from another angle. His legislation requires American citizens detained under the AUMF are provided their Sixth Amendment protections and receive “the right to a speedy and public trial” by jury.
One interesting distinction is that the Smith amendment prevented military detention for anyone captured on U.S. soil as well as American citizens, while Paul’s only talks of U.S. citizens.
While Paul’s amendment may be seeking to fight a similar issue as the other legislative attempts on detention, some law experts question whether his measure would actually change U.S. detention law if it were to pass.
Benjamin Wittes, a senior fellow at the Brookings Institution who runs the blog “Lawfare,” said that Paul’s amendment was only “symbolic” because it appeared to reiterate rights already given to U.S. citizens in the Constitution.
“The Sixth Amendment already guarantees you all of those rights,” Wittes said, whose blog also wrote on the subject. “You’re entitled to those rights whether Sen. Rand Paul’s amendment says you are or not, because a higher law entitles you to those rights.”