Senate Backs Detainee Provision; Allows Military to Hold Suspected Terrorists Without Trial

The U.S. Senate rejected an amendment on Tuesday that would have removed a controversial provision from a Defense spending bill that allows the military to detain suspected terrorists -- including Americans suspected of aiding al-Qaeda -- indefinitely on U.S. soil without trial, a measure that has been opposed by the White House and the Federal Bureau of Investigation.

The measure, part of the massive National Defense Authorization Spending Act, has been disputed by lawmakers on the right and left, who say the provision violates U.S. civil liberties and is comparable to draconian laws in countries such as China and Saudi Arabia.

The amendment, which was defeated 38 to 60, would have struck down a section of the bill that authorizes the president to use all necessary and appropriate force to detain people suspected of terrorism, and also calls for al-Qaeda fighters who plot or carry out attacks against the U.S. to be held in military custody. It also allows the president to decide which detainees fit that definition and permits the government to hold suspected al-Qaeda members in civilian custody if it is determined to be in the interest of U.S. national security.

Fifteen Democrats and one Independent joined Republicans to defeat the amendment, which was proposed by Democratic Sen. Mark Udall of Colorado. Sen. Robert Menendez, D-N.J., originally voted against the amendment, but then received unanimous consent from the Senate to change his vote in favor of it late Tuesday night.

Only two Republicans, Sens. Rand Paul of Kentucky -- one of the Senate's most conservative members -- and Mark Kirk of Illinois joined their colleagues across the aisle to oppose the detainee provision. Rand for once echoed the concerns of Democrats when arguing the disputed provision would give the government unprecedented authority to potentially imprison U.S. citizens for life without every formally charging them.

Indefinite Detention?

I'm very, very, concerned about having U.S. citizens sent to Guantanamo Bay for indefinite detention, Paul said. It's not enough just to be alleged to be a terrorist. That's part of what due process is -- deciding, are you a terrorist? I think it's important that we not allow U.S. citizens to be taken.

Sen. Dianne Fernstein, D-Calif., expressed similar objections, implying the provision is a stain on the U.S.

We are not a nation that locks up its citizens without charge, she said. Fernstein has reportedly proposed another amendment that would defeat the provision, but it has not yet gotten a vote.

Although the bill explicitly states military detention does not apply to U.S. citizens, but only American al-Qaeda members, Udall said he fears the language could eventually be interpreted to apply to all citizens, which would be an unprecedented threat to our constitutional liberties.

In a Nov. 17 statement the White House said implementing the rules would interfere with U.S. counterterrorism efforts and raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

FBI Director Robert Mueller and Director of National Intelligence James Clapper have both backed the White House, which said President Obama would veto the legislation if the Udall amendment failed.

In a letter to the Committee on Armed Services, Mueller said the provision in question would hamper the FBI's ability to investigate certain individuals who fall under the definitions of suspected terrorists under the bill. Meanwhile, in a letter to the Select Committee on Intelligence, Clapper said it would impede intelligence operatives' ability to gather critical information from terrorism suspects.

Senate Armed Services Committee Chairman Carl Levin, D-Mich., and ranking member Sen. John McCain, R-Ariz., both voted against Udall's amendments. In fact, counter to the claims of the FBI and White House, McCain said the detainee provision will actually aid intelligence gathering.

The language in the Defense authorization bill regarding detainees preserves our nation's ability to gain valuable intelligence from members of al Qaeda and gives the president the ability to prevent terrorists from returning to the battlefield, he said in a statement after the vote.

The bill was passed in the U.S. House of Representatives in May, where 91 Democrats and five Republicans voted against it.