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withdrawn his veto threat, but concerns linger for some over whether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
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
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
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bill Wednesday 283 to 136, and President Obama has withdrawn a veto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
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
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. …