By Jeremy Herb - 11/30/12 03:41 AM EST
Senators who have battled for more than a year over military detention of U.S. citizens nearly all supported an amendment from Sen. Dianne Feinstein (D-Calif.) Thursday, but the two sides had very different interpretations of what the provision accomplished.
Feinstein’s amendment, which states that U.S. citizens or permanent residents shall not be detained without charge or trial, passed the Senate 67-29, with 19 Republicans joining with most Democrats to pass the bill.
Feinstein said her amendment with Sen. Mike Lee (R-Utah) would prevent the indefinite detention of U.S. citizens or legal permanent residents captured on U.S. soil.
The amendment clarified that the law “does not permit an American citizen or legal resident to be picked up and be held without end, without charge or trial,” Feinstein said Thursday.
But the more hawkish Republicans and Democrats on the other side of the detention debate — who mostly voted for Feinstein’s amendment — had a different view of how the amendment applied to military detention of U.S. citizens.
Sens. Lindsey Graham (R-S.C.), John McCain (R-Ariz.) and Armed Services Chairman Carl Levin (D-Mich.) all supported Feinstein’s amendment late Thursday. They did so, however, only after qualifying that they believed language in the amendment did not prohibit the military detention of U.S. citizens, because the amendment gave an exception for acts of Congress that specifically authorize such detention.
Graham and Levin argued that the 2001 Authorization for the Use of Military Force (AUMF) passed by Congress grants the military the power to detain U.S. citizens who are part of al Qaeda, and that remains the case with the Feinstein amendment.
“Unlike criminal law, where you’re trying to find justice for victims, this is about winning a war,” Graham said.
“When the enemy is able to turn one of our own, the last thing in the world we should do is deny ourselves the ability to interrogate that person in a way to help us win the war and keep us safe.”
Sen. Kelly Ayotte (R-N.H.), who has been one of the strongest backers of military detention for terror suspects, did not join McCain and Graham to support Feinstein’s amendment.
Thursday’s vote is the latest wrinkle in a long fight in Congress over indefinite detention of terrorism suspects. As is the case with Feinstein’s measure, the debate has often seen the two sides reaching differing interpretations over the meaning of the same law.
Supporters of military detention argue that the case law on detention is clear, pointing to the 2004 Hamdi vs. Rumsfeld Supreme Court case as proof the U.S. military has a right to detain U.S. citizens who have joined al Qaeda.
But opponents disagree with that interpretation because the American suspect was captured in Afghanistan. They argue the case law on the AUMF is not so clear-cut that it would be considered under the amendment’s exemption.
In supporting the amendment, Graham said that he supported trials for even the worst terrorists, but he added that the military needed to be able to interrogate and gain information from enemy combatants.
Graham and his allies said that preventing the military from detaining terror suspects would present the unbalanced option of either killing the suspects or letting them go free, but nothing in between.
Earlier on Thursday, it did not appear that Graham, Levin and McCain would support the Feinstein amendment.
“Of course I’m opposed,” McCain told reporters on Thursday when asked about the amendment.
Levin had said he was hoping to find a different “approach” with Feinstein, but she said she did not intend to change the amendment.
Still, while Feinstein was pleased with the outcome Thursday, civil liberties groups expressed disappointment at the provision adopted to the defense authorization bill.
A coalition of advocacy groups, including the American Civil Liberties Union and Human Rights Watch, said that the amendment “fails to address a central concern raised in the public debates: the specter of the military being used to police our streets and detain individuals on U.S. soil.”
The groups opposed referring to U.S. citizens and permanent residents rather than persons.
Feinstein said she would like to have the amendment include all persons on U.S. soil, but said that she had to go with could get the votes to pass the measure
In arguing for the amendment, Feinstein said it would prevent repeating incidents in U.S. history like the Japanese-American internment camps during World War II, where innocent citizens were detained indefinitely.
— Ramsey Cox contributed to this story.