Sen. Rand PaulRand PaulGOP rep: Trump has 'extra-constitutional' view of presidency The ignored question: What does the future Republican Party look like? Rand Paul skeptical about Romney as secretary of State MORE (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 ReidHarry ReidFree speech is a right, not a political weapon Overnight Tech: FCC eyes cybersecurity role | More trouble for spectrum auction | Google seeks 'conservative outreach' director Cures bill clears first Senate hurdle MORE (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 LevinCarl Levin'Nuclear option' for Supreme Court nominees will damage Senate McCain's Supreme Court strategy leads to nuclear Senate The Fed and a return to banking simplicity MORE (D-Mich.) and ranking member John McCainJohn McCainFree speech is a right, not a political weapon The trouble with Rex Tillerson Senate: Act now to save Ukraine MORE (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 UdallMark UdallGardner's chief of staff tapped for Senate GOP campaign director The untold stories of the 2016 battle for the Senate Colorado GOP Senate race to unseat Dem incumbent is wide open MORE (D-Colo.) and Dianne FeinsteinDianne FeinsteinCongress strikes deal on water bill with Flint aid Top Dem signals likely opposition to Sessions nomination Senator blasts GOP push for California drought language in water bill MORE (D-Calif.) debating their Democratic colleague Levin, who sided in favor of the detention measures with McCain and Sen. Lindsey GrahamLindsey GrahamThe trouble with Rex Tillerson A Cabinet position for Petraeus; disciplinary actions for Broadwell after affair Pentagon should have a civilian chief to give peace a chance MORE (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 SmithAdam SmithThe economic and national security rationale for free trade Charter schools and multi level marketing: An enduring connection Meet Trump’s ‘mad dog’ for the Pentagon MORE (D-Wash.) teamed up with libertarian Rep. Justin AmashJustin AmashGOP rep: Trump has 'extra-constitutional' view of presidency Flag burning is just another PR stunt for the media to cover Trump tweets about flag burning, setting off a battle MORE (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.”