Senate ready for showdown with Obama over bill with detainee language

The Senate voted to end debate Wednesday on a defense spending bill, setting the stage for a showdown between Congress and the White House over the bill’s controversial provisions for detaining and prosecuting terror suspects. 

The White House has threatened to veto the legislation because of language that mandates military custody of terror suspects, but Wednesday’s 88-12 cloture vote signals that the bill — which could pass as early as Thursday — will likely have the detainee provisions included in the chamber’s final legislation.

“If [President Obama] were to veto this bill, it would be saying that giving rights to terrorists is more important than passing the defense authorization, which has many other important provisions,” Sen. Kelly AyotteKelly Ann AyotteGOP fears Trump backlash in suburbs Trump makes rare trip to Clinton state, hoping to win back New Hampshire Key endorsements: A who's who in early states MORE (R-N.H.) told The Hill.

ADVERTISEMENT

The White House is standing by its veto threat, a White House spokesman said in an email to The Hill Wednesday. 

While the Senate bill still must go through conference committee, the current legislation would force the White House to decide whether to follow through on its veto threat. 

Since he took office, President Obama has fought with Congress about how to detain and prosecute terror suspects, beginning with the president’s desire to close Guantánamo Bay. 

But the defense spending bill has passed for 50 years straight. The White House would be left open to charges it is playing politics with the nation’s security if Obama were to veto what is considered must-pass legislation.

Ayotte said it would be a “big mistake” for Obama to veto it.

The Senate on Tuesday rejected, by a vote of 38-60, an attempt from Sen. Mark UdallMark Emery UdallDemocrats will win back the Senate majority in 2020, all thanks to President Trump Poll: Trump trails three Democrats by 10 points in Colorado The Hill's Morning Report — Trump and the new Israel-'squad' controversy MORE (D-Colo.), an Armed Services committee member, to strip the detainee provisions from the bill. All but two Republicans voted against the amendment, and 16 Democrats joined them to help defeat it.

The fight over detainees heated up just before Thanksgiving when Senate Armed Services Committee Chairman Carl LevinCarl Milton LevinRemembering leaders who put country above party Strange bedfellows oppose the filibuster Listen, learn and lead: Congressional newcomers should leave the extremist tactics at home MORE (D-Mich.) and ranking member Sen. John McCainJohn Sidney McCainJeffries blasts Trump for attack on Thunberg at impeachment hearing Live coverage: House Judiciary to vote on impeachment after surprise delay Budowsky: Would John McCain back impeachment? MORE (R-Ariz.) brokered a compromise on the detainee language. 

The defense bill mandates military custody for terror suspects while granting the executive branch a waiver to prosecute terror suspects in civilian courts.

The Obama administration says this is an unacceptable burden for law enforcement counterterrorism efforts, and Defense Secretary Leon Panetta, Director of National Intelligence James Clapper and FBI Director Robert Mueller have all written letters to senators expressing their opposition. 

Intelligence Committee Chairwoman Dianne FeinsteinDianne Emiel FeinsteinSanders revokes congressional endorsement for Young Turks founder Cenk Uygur Sanders endorses Young Turks founder Cenk Uygur for Katie Hill's former House seat Houston police chief stands by criticism of McConnell, Cruz, Cornyn: 'This is not political' MORE (D-Calif.) and Judiciary Committee Chairman Patrick LeahyPatrick Joseph LeahyHorowitz offers troubling picture of FBI's Trump campaign probe Horowitz: 'We found no bias' in decision to open probe Horowitz: 'Very concerned' about FBI leaks to Giuliani MORE (D-Vt.) have also opposed Levin and McCain’s compromise, sparking an open disagreement among Democratic committee chairmen.

Udall, Feinstein and Leahy, who voted for cloture, were still hoping they could change the detainee provisions in the bill through amendments before it reached a final vote. 

None of the senators were tipping their hands as to whether they would support the final bill with the detention rules still included.

Feinstein offered two amendments that would ban indefinite detention of American citizens and provide more flexibility for counterterrorism investigations.

“I don’t know whether we can win this or not, but I think it’s important we try,” Feinstein said on the floor Wednesday. “I have no doubt this is going to be litigated.”

As the Senate prepared to vote on dozens of amendments Wednesday, the most contentious debate focused on whether American citizens could be held indefinitely in military custody, a provision that has united some Democrats with libertarian Sen. Rand PaulRandal (Rand) Howard PaulSunday Talk Shows: Lawmakers look ahead to House vote on articles of impeachment, Senate trial Pentagon to take bigger role in vetting foreign students after Pensacola shooting Overnight Defense: House passes compromise defense bill | Turkey sanctions advance in Senate over Trump objections | Top general says military won't be 'raping, burning and pillaging' after Trump pardons MORE (R-Ky.) in opposition.

Udall warned that holding citizens in military custody indefinitely “cuts directly against principles we hold dear: innocent until proven guilty.”

ADVERTISEMENT

Sen. Lindsey GrahamLindsey Olin GrahamRepublicans aim to avoid war with White House over impeachment strategy New York Times editorial board calls for Trump's impeachment Graham invites Giuliani to testify about recent Ukraine trip MORE (R-S.C.) argued that al Qaeda members are enemy combatants and should be held and prosecuted by the military. He and fellow Republicans have been critical of reading terror suspects Miranda rights.

“When they say, ‘I want a lawyer,’ you tell them, ‘Shut up,’ ” Graham said. “ ‘You don’t get a lawyer. You’re an enemy combatant, and we’re going to talk to you about why you joined al Qaeda.’ ”

The administration’s statement of its policy said that military custody inside the U.S. “would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

If the Senate bill passes, it would still need to go through conference with the House legislation, which contains some similar provisions on terror suspects. The House bill doesn’t include the Senate’s mandatory military detention, but House Armed Services Committee Chairman Buck McKeon (R-Calif.) has introduced similar stand-alone legislation, making him an unlikely candidate to remove the detainee language in conference.