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Indefinite Military Detention of U.S. Citizens Not Blocked By The Senate For The Second Time

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WASHINGTON -- The Senate on Thursday blocked a second attempt to spare U.S. citizens from potential indefinite military detentions and was set to vote on a third effort to do the same later in the day.

Under a provision of the mammoth defense authorization bill, the military would be granted the authority to detain and hold anyone indefinitely if that individual is suspected of having ties to al Qaeda, including any American arrested in the United States.

Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, offered an amendment to curb the measure by specifying that it applied to suspects captured "abroad." The amendment failed on a vote of 45 to 55. Feinstein was expected to get a vote later in the day on another amendment that would explicitly exclude U.S. citizens from military detention.

The heated debate has crossed party lines, with three Republicans -- Sens. Rand Paul (Ky.), Mike Lee (Utah) and Mark Kirk (Ill.) -- favoring the amendment, and 10 Democrats and independent Sen. Joe Lieberman (Conn.) opposing it. The debate also has left many Americans scratching their heads as to whether Congress is actually attempting to authorize the indefinite detention of Americans by the military without charges.

But proponents -- led by Sens. Lindsey Graham (R-S.C.), Kelly Ayotte (R-N.H.) and Carl Levin (D-Mich.), chairman of the Senate Armed Services Committee -- say that is exactly what the war on terror requires. They argued that the bill simply codifies precedents set by the Supreme Court and removes uncertainty, which they said would better protect the country.

Ayotte argued that passing either of Feinstein's amendments would hurt security.

"I would ask my colleagues to reject [the amendments], which ... would take away the authority of the executive branch as allowed by our Supreme Court and would bring us back, would make us less safe in this country," said Ayotte, the former New Hampshire attorney general. "We have to protect America and make sure that we get the maximum information to prevent future attacks on this country."

That argument did not sit well with Feinstein, who countered that military detentions and prosecutions have produced poor results, while civilian law enforcement and federal courts have racked up numerous convictions, lengthy prison sentences and a perfect terrorism prevention record.

"I really object to the statement just made that this will make the United States of America less safe," Feinstein said. "Ten years of experience has seen that it has not. Plot after plot after plot has been interrupted. I have served on the Intelligence Committee for 11 years now. ... This country is much more safe because things have finally come together with a process that is working."

An administration official laughed at Ayotte's contention that she wanted to protect the executive branch, since the Obama administration has threatened to veto the bill if it passes in its current form. The official also questioned Ayotte's expertise on the issue despite her prosecutorial background.

"This is someone who has been in the Senate all of 11 months and has shown absolutely no substance on this argument," the official said. "As attorney general, she didn't have a single [counterterrorism] case, not one."

Feinstein also insisted that the military is not the answer to every safety issue, especially if using the armed forces means establishing new infringements on liberty.

"This constant push that everything has to be militarized ... I don't think that creates a good country," Feinstein said. "Because we have values, and due process of law is one of those values. And so I object, I object to holding American citizens without trial. I do not believe that makes us more safe."

The secretary of defense, the head of national intelligence and the FBI director have all said the bill would make their jobs harder.

But Graham argued that the military needs to be empowered to grab anyone, including citizens, to ensure the country remains safe. He noted that two of the highest-profile recent planned attacks on America failed only by chance, in the cases of the attempted Times Square bombing and the attempted Christmas airplane bombing.

"There's nothing to suggest that our intelligence community doesn't need as many tools as possible, because the guy got through the system and we're just lucky as hell the bomb didn't go off," Graham said, referring to the Christmas attempt. "The Times Square bomber -- nobody interrupted that plot. The guy didn't know how to set the bomb off. We're just lucky as hell the bomb didn't go off.

"So don't stand here and tell me that we have got it right because we have not," Graham continued in a heated exchange, refusing to let Feinstein interrupt. "We never will always get it right. I'm not saying that as criticism, because we're going to get hit again. We can't be right and lucky all the time."

He argued that adding restrictions on whom the military can detain would get in the way of counterterrorism efforts.

"The one thing I don't want to do is micromanage the war," Graham said.

The Senate bill -- specifically, sections 1031 and 1032 -- requires the military to detain al Qaeda suspects, but it permits the Defense Department to then free U.S. citizens if it chooses. The House version of the bill lacks the provision on detaining Americans.

UPDATE: 8:35 p.m. --

Feinstein's amendment failed when the broader bill passed the Senate with compromise language that says current law and precedent on detentions will not change.

Michael McAuliff covers Congress and politics for the Huffington Post. Talk to him on Facebook.

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