Indefinite Detention Bill No Longer Faces Veto Threat From White House (UPDATE)
WASHINGTON -- The White House on Wednesday abandoned its threat to veto a defense bill that sets in stone the commander in chief's authority to indefinitely detain terrorism suspects, including Americans, in military custody.
The switch came just before the House voted 283-136 to pass the National Defense Authorization Act despite impassioned opposition that crossed party lines, with Democrats splitting on the bill and more than 40 Republicans opposing it. Numerous national security experts and civil liberties advocates had argued that the indefinite detention measure enshrines recent, questionable investigative practices that are contrary to fundamental American rights. The Senate was expected to follow suit soon.
The White House had threatened to veto the bill as it stood coming from the Senate, but reversed course shortly before the House vote. The administration cited changes to the legislation made during a conference committee that worked out differences between the House and Senate versions over the weekend.
Civil liberties advocates had already declared that the changes were not nearly good enough and that all they did was make it harder for law enforcers to interpret the legislation. But White House officials, who spent two full days pondering the changes before revoking the veto threat, decided they were enough.
While opponents had looked to President Barack Obama to defend what they see as a fresh attack on American freedom, a statement released by White House press secretary Jay Carney addressed such issues only obliquely.
"After intensive engagement by senior administration officials and the President himself, the administration has succeeded in prompting the authors of the detainee provisions to make several important changes," the statement said.
"While we remain concerned about the uncertainty that this law will create for our counterterrorism professionals, the most recent changes give the President additional discretion in determining how the law will be implemented, consistent with our values and the rule of law, which are at the heart of our country's strength," it said.
"We have concluded that the language does not challenge or constrain the president's ability to collect intelligence, incapacitate dangerous terrorists, and protect the American people," the statement said, although it added that if the uncertainty raised by the legislation does impede investigations, the White House expects lawmakers to write a fix.
One of the major changes was shifting to the White House the responsibility for determining who does not have to be detained forever by the military. In an earlier version of the bill, the Department of Defense made the call. And while the bill makes the military the default investigator for Islamic terrorism cases, new provisions assert that the FBI and other civil law enforcers still have the authority to investigate terrorism and interrogate suspects.
The bill's strongest supporters, including Sens. John McCain (R-Ariz.) and Lindsey Graham (R-S.C.), had argued that it was necessary to make plain that the military has the authority to detain Americans. Other less-fervent supporters argued that, although they were not entirely happy with the practice, the fact is that the executive branch already detains Americans -- as it did in the case of convicted terrorism suspect Jose Padilla.
"If you have a problem with indefinite detention, that is a problem with current law," said Rep. Adam Smith (D-Wash.), the top Democrat on the House Armed Services Committee. "The problems that people have, and I share some of them, are with existing law, not with this bill. Defeat this bill, and that will not change a piece of that existing law that we've heard about that we should all be concerned about."
Opponents of the indefinite detention provisions have argued that, although it is true Americans have been held, the Supreme Court has not ruled on the validity of those detentions. Writing those practices into law, they argue, goes further than anything the nation's founders ever would have contemplated.
"We are in danger of losing our most precious heritage not because a band of thugs threatens our freedom, but because we are at risk of forgetting who we are and what makes the United States a truly great nation," said Rep. Jerry Nadler (D-N.Y.), whose district includes Ground Zero. "In the last 10 years, we have begun to let go of our freedoms, bit by bit, with each new executive order, court decision and, yes, act of Congress.
"We have begun giving away our rights to privacy, our right to our day in court when the government harms us, and, with this legislation, we are continuing down the path of destroying the right to be free from imprisonment without due process of law," Nadler added.
He also took issue with Smith's assertion that the bill just spells out what is already law.
"It doesn't codify existing law. It codifies claims of power by the last two administrations that have not been confirmed by [the Supreme Court] -- rather terrifying claims of power, claims of the right to put Americans in jail indefinitely without a trial, even in the United States," Nadler said.
Smith and others have pointed to a provision in the legislation that they say exempts U.S. citizens. The measure reads, "The requirement to detain a person in military custody under this section does not extend to citizens of the United States."
But numerous legal authorities have pointed out to The Huffington Post that, even though that provision does not require the detention of Americans, it also does not say they cannot be detained. And the legislation's definition of terrorism suspects does not exclude Americans, which means the military is authorized to detain Americans. An amendment that would have barred detentions of U.S. citizens failed in the Senate. The decision on whether an American goes to the Guantanamo Bay, Cuba, facility -- which must remain open to accommodate new suspects -- will lie with the White House.
The final bill is also likely to pass the Senate on Wednesday or Thursday.
Opponents called on President Obama to ignore his advisers and veto the bill anyway.
"As people of faith, we know that the right cause is also sometimes a lonely cause," said the Rev. Richard Killmer, executive director of the National Religious Campaign Against Torture.
"The president's advisers have abandoned their opposition to the bill," Killmer said. "But, as president, President Obama is still in a position to stand up for American values and stop this legislation. The decision is his, not his advisers. He can and should veto this bill. If he does, he will find that Americans of all faiths will stand with him."
"If President Obama signs this bill, it will damage both his legacy and Americans' reputation for upholding the rule of law," warned Laura Murphy, director of the Washington legislative office of the American Civil Liberties Union. "The last time Congress passed indefinite detention legislation was during the McCarthy era, and President Truman had the courage to veto that bill."
Update: 7:18 p.m. -- The story has been updated to include the House's passage of the National Defense Authorization Act. 10 p.m. -- It was also updated to make clearer that the military is authorized to detain American citizens.
Michael McAuliff covers politics and Congress for The Huffington Post. Talk to him on Facebook.
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First Posted: 12/14/11 06:18 PM ET Updated: 12/15/11 04:24 AM ET