Does Defense Bill's Anti-Terror Provision Deprive Americans of Key Rights?

Article excerpt

The defense bill has cleared the Senate, and President Obama has withdrawn his veto threat, but concerns linger for some over whether a counterterrorism rider to the bill could deprive Americans of due process rights.

The US Senate on Thursday approved a controversial measure that affirms broad authority for the nation's military to indefinitely detain suspected Al Qaeda members and associates captured in the United States.

The measure, a rider to the $662 billion Defense Authorization Act of 2012, was initially opposed by the Obama administration. It sparked sharp debate over whether the provision would allow detention without charge of US citizens seized on American soil.

Supporters downplayed the potential threat to civil liberties and offered compromise language to minimize the impact on US-based citizens. But critics denounced the measure as an ill-conceived expansion of executive and military power at the expense of due process rights.

The House of Representatives endorsed an amended version of the bill Wednesday 283 to 136, and President Obama has withdrawn a veto threat. The Senate vote was 86 to 13.

Sen. John McCain (R) of Arizona, a co-sponsor, said in a floor speech that the measure was designed to address an inconsistency in Obama administration counterterrorism policy.

While Mr. Obama in September approved the killing of a US citizen in Yemen suspected of helping Al Qaeda, the administration has declined to authorize the open-ended military detention of Al Qaeda suspects captured in the US, Senator McCain said.

Sen. Lindsey Graham (R) of South Carolina agreed. "If you believe you can kill an American citizen who had joined Al Qaeda, why can't you capture and hold him," Senator Graham asked.

"You can kill them, capture them overseas, but when they get here we have to treat them as a common criminal," he added.

McCain and Graham were referring to Anwar Al-Awlaki, the US-born Muslim cleric who was killed in a US drone missile attack Sept. 30.

Several senators contrasted the military option in Mr. Awlaki's case with the handling of the so-called underwear bomber, who tried to blow up a jetliner over Detroit in Dec. 2009.

Nigerian citizen Umar Farouk Abdulmutallab was taken into the custody of the criminal justice system and given Miranda warnings that he had a right to a lawyer and a right to remain silent. Some senators suggested he should have been taken into military custody and subjected to aggressive interrogation without any warnings.

The counterterrorism rider requires the Obama administration to place in indefinite military custody Al Qaeda suspects involved in planning or carrying out an attack on US interests. It is designed to facilitate tough interrogations by military officials unconstrained by constitutional safeguards that apply to US law enforcement officials.

The bill exempts US citizens from the mandatory detention provision, but it does not exempt them from a broader authorization allowing the military to capture and hold anyone outside the US who is deemed to have supported Al Qaeda or associated forces.

The counterterrorism rider was softened during negotiations by adding a guarantee that it would not "affect existing law or authorities relating to the detention of United States citizens."

Existing law on that subject is unclear. The US Supreme Court in 2004 upheld the indefinite detention of a US citizen captured on a foreign battlefield, but the high court has not ruled decisively on the legality of military detention without charge of a citizen captured within US borders or apprehended overseas beyond a battlefield.

Critics say military detention without trial violates fundamental principles of the US Constitution, including that the government must provide due process of law before depriving a citizen of liberty or property. …