Attorney General Eric Holder said Tuesday that the United States must have the flexibility to prosecute terror suspects in criminal courts, underscoring the Obama administration's opposition to congressional efforts to require military custody of terrorist suspects and limit the government's authority to transfer detainees.
In wide-ranging testimony before the Senate Judiciary Committee, Holder was pressed about provisions in a Senate defense bill that reflect the deep divisions between President Barack Obama and Congress over the treatment of detainees, the U.S. prison at Guantanamo Bay, Cuba, and the sole reliance on military tribunals to prosecute suspects.
Sen. Patrick Leahy, D-Vt., chairman of the committee, said he opposed the provisions, arguing that they would "let all terrorists know which options are off the table." The provisions have even divided Senate Democrats.
"We need to use all elements of American power in the fight against terrorism, our military power, our political power, power that we have in our judicial system, military commissions," Holder said. "We need maximum amounts of flexibility. We also have to be practical when it comes to the measures that Congress asks us in the executive branch to follow."
One provision in the Senate Armed Services Committee's defense bill would require military custody of a suspect determined to be a member of al-Qaida or its affiliate and involved in the planning or an attack on the United States. In its opposition, the administration says that such a step would hamper efforts by the FBI or other law enforcement to elicit intelligence from terror suspects.
Holder's comments echoed those of White House counterterror chief John Brennan, who has argued for a case-by-case approach in prosecuting terrorist suspects. The Pentagon's general counsel, Jeh Johnson, also has said there is a "danger in over-militarizing our approach to al-Qaida and its affiliates."
Behind the scenes, Brennan has been talking to Armed Services Committee Republicans and the panel's chairman, Sen. Carl Levin, D-Mich., about changing the provisions to address the administration's concerns. Senate Majority Leader Harry Reid, D-Nev., had held off on Senate consideration of the defense bill until the dispute is resolved.
Levin has said there has been progress in the talks and hopes the Senate could consider the bill before the end of the month.
The Senate Armed Services Committee approved the $683 billion defense bill in June that would authorize spending on military personnel, weapons systems and wars in Iraq and Afghanistan in the fiscal year that began Oct. 1. The panel approved the provision on military custody on a 25-1 vote; Sen. Mark Udall, D-Colo., was the lone vote in opposition.
Levin has argued that the provision included a national security waiver that the administration could exercise to bypass the requirement, but the administration has pressed for changes that would move away from any mandatory military custody.
This isn't the first time Congress has tried to limit the administration on the detainee issue. Last year's defense bill barred the transfer of detainees at the naval prison at Guantanamo to the United States. The omnibus spending bill that Obama and Congress approved in April also prevented the transfer of detainees from Guantanamo to the U.S., prohibited the construction or modification of facilities in the United States to house detainees and required the defense secretary to notify Congress before transferring a terror suspect to a foreign country.
Congressional Republicans and some Democrats want to keep the facility at Guantanamo open despite Obama's efforts, which have proven unsuccessful, to close the prison. Lawmakers also favor trying suspects in military commissions instead of federal courts.
At the hearing, Sen. Lindsey Graham, R-S.C., told Holder that Guantanamo will not be closed.
"I just really believe that we need to embrace reality. And the reality is we need a jail. We don't have one. And Gitmo is the only jail available," Graham said.
Graham also warned Holder about the administration holding a military trial in the United States for a Hezbollah commander now detained in Iraq. The administration hasn't made a decision, but a tribunal at a U.S. military based may be possible for Ali Mussa Daqduq, who was captured in Iraq in 2007. He has been linked to the Iranian government and a brazen raid in which four American soldiers were abducted and killed in the Iraqi holy city of Karbala in 2007.
"If you try to bring this guy back to the United States and put him in civilian court, or use a military commission inside the United States, holy hell is going to break out," Graham said. "And if we let him go and turn him over to the Iraqis, that is just like letting him go. I think this would be a huge mistake."
No military commission has been held on U.S. soil since the terrorist attacks of Sept. 11, 2001.
Senate Minority Leader Mitch McConnell, R-Ky., in a speech on the Senate floor, said Obama should use his upcoming meeting with Iraqi Prime Minister Nouri al-Maliki to press for American forces to take custody of Daqduq and transport him to Guantanamo.