Congress is on track to require military custody for suspected terrorists linked to al-Qaida and indefinite detention without trial for some suspects, even U.S. citizens captured on American soil.
Libertarian Republicans and progressive Democrats opposed to the mandates grudgingly conceded Tuesday that they had lost the fight to eliminate the provisions from a sweeping defense bill heading toward congressional approval. The House is expected to vote Wednesday on the $662 billion measure that authorizes funds for military personnel, weapons, the wars in Iraq and Afghanistan and national security programs in the Energy Department. A Senate vote is possible on Thursday.
The White House, which had threatened a veto over the requirements on handling suspected terrorists, was reviewing the legislation as well as last-minute changes that the leaders of the Armed Services Committees hoped would mollify President Barack Obama and his national security team. It was unclear whether Obama would carry through on the veto threat of a military bill with an election year looming.
Senate Intelligence Committee Chairwoman Dianne Feinstein, D-Calif., said the administration had sought flexibility in prosecuting the war on terror. "Flexibility has worked for us. And yet what the bill wants to do is remove flexibility. And the military presumption is still in it. I'm opposed to that," she said.
"There's a great danger to imprisoning a U.S. citizen within the United States for a crime they're accused of in the United States without a jury trial," said Sen. Rand Paul, R-Ky. "I still oppose it. I think we fought the good fight on it. ... We lost the overall battle."
House and Senate negotiators made several changes to appease the Obama administration during a weeklong, closed-door session that ended Monday night when they signed off on the sweeping bill.
They abandoned a House effort to limit the president's ability to implement a nuclear weapons treaty with Russia and decide on the size of the arsenal. They dropped a reference to the Defense of Marriage Act that House conservatives, angered by the end of the ban on gays in the military, had tacked onto the bill. They made changes sought by the Treasury Department to a provision slapping tough sanctions on foreign financial institutions that do business with Iran's Central Bank.
The provisions on how to handle suspected terrorists had divided Obama's senior national security officials and Congress, as well as Democrats and Republicans. The test of wills reflects the ongoing dispute over whether to treat suspects as prisoners of war or criminals.
The bill would require that the military take custody of a suspect deemed to be a member of al-Qaida or its affiliates who is involved in plotting or committing attacks on the United States, with an exemption for U.S. citizens.
Responding to appeals from Obama, Defense Secretary Leon Panetta and FBI Director Robert Mueller, lawmakers added a provision that says nothing in the bill will affect "existing criminal enforcement and national security authorities of the FBI or any other domestic law enforcement agency" with regard to a captured suspect, "regardless of whether such ... person is held in military custody."
The latest revision also shifts the authority to waive the provision on national security grounds from the defense secretary to the president.
In an opinion piece in Tuesday's New York Times, retired Marine Corps Gens. Charles Krulak and Joseph Hoar urged Obama to veto the defense bill, arguing that the provisions undermine the nation's ideals in the name of fighting terrorism.
Citing the military custody provision, the former four-star generals wrote that it "would force on the military responsibilities it hasn't sought. This would violate not only the spirit of the post-Reconstruction act limiting the use of the armed forces for domestic law enforcement but also our trust with service members, who enlist believing that they will never be asked to turn their weapons on fellow Americans."
The legislation would deny suspected terrorists, even U.S. citizens seized within the nation's borders, the right to trial and subject them to indefinite detention.
Prior to the negotiators' work, House leaders dropped some $700 million in pet projects that even deficit-cutting tea party lawmakers had tucked into the bill in the spring. Media reports and a study by Sen. Claire McCaskill, D-Mo., highlighted many of the projects that violated their self-imposed earmark ban.