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GOP weighs changes to indefinite detention law
Question of the Day
WASHINGTON — Facing a conservative backlash, House Republicans are working to change a new law that allows the indefinite detention without trial of terrorist suspects, even U.S. citizens seized within the nation's borders.
Republicans and Democratic lawmakers said this week that the GOP majority on the House Armed Services Committee was weighing several proposals to revise the provision on indefinite detention that was part of the far-reaching defense bill that Congress passed in December and President Barack Obama signed into law.
Last year, Congress' approach to handling terror suspects divided Republicans and Democrats, pitted the White House against lawmakers and drew fierce opposition from civil liberties groups. The anger still lingers, and GOP leaders are under pressure from a number of rank-and-file members, tea partyers and libertarians to change the law.
"I intend to help put as much political pressure on this issue as possible," said Rep. Justin Amash, Michigan Republican, whose staff has spoken to the Armed Services panel. "I intend to spend a lot of time — and I already have been doing so — making the public aware of this issue so we can get the change we need to address it."
Officials for the committee led by Rep. Howard "Buck" McKeon, California Republican, had no comment on the possible changes to be included in a defense bill, which could be completed this summer. The discussions are preliminary, but one possibility is greater review for those detained indefinitely, said Rep. Adam Smith of Washington state, the committee's top Democrat.
Conservatives fear that the detention provision could result in unfettered power for the federal government, allowing it to detain American citizens indefinitely for even a one-time contribution to a humanitarian group that's later linked to terrorism. They argue that would be a violation of long-held constitutional rights. Also disconcerting to the GOP is the reality that the current government is led by Democrat Obama.
Several Democrats also have criticized the provision as an example of government overreach and an unnecessary obstacle to the administration's war against terrorism, creating an unusual political coalition in Congress.
In the months since the bill became law, some Republicans who backed the legislation have been challenged at town halls and other meetings with constituents, a turn of events that unnerves the GOP.
"There clearly has been some blowback and that's what the Republicans are trying to address," Smith said.
The indefinite detention provision denies suspected terrorists, including U.S. citizens seized within the nation's borders, the right to trial and subjects them to the possibility they would be held indefinitely. It reaffirms the post-Sept. 11 authorization for the use of military force that allows indefinite detention of enemy combatants. In hopes of quelling the furor, lawmakers added language that said nothing in the law may be "construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States."
When Obama signed the bill on Dec. 31, he issued a statement saying he had serious reservations about provisions on the detention, interrogation and prosecution of suspected terrorists. Such signing statements are common and allow presidents to raise constitutional objections to circumvent Congress' intent.
"My administration will not authorize the indefinite military detention without trial of American citizens," Obama said in the signing statement. "Indeed, I believe that doing so would break with our most important traditions and values as a nation."
In February, the Obama administration outlined new rules on when the FBI, rather than the military, could be allowed to retain custody of al Qaeda terrorism suspects who aren't U.S. citizens but are arrested by federal law enforcement officers. The new procedures spelled out seven circumstances in which the president could place a suspect in FBI, rather than military, custody, including a waiver when it could impede counterterrorism cooperation with another government or when it could interfere with efforts to secure an individual's cooperation or confession.
But that's not sufficient for some lawmakers.
Smith and Sen. Mark Udall, Colorado Democrat, have introduced legislation that would repeal the provision on indefinite detention and reverse the mandatory military custody for foreign terrorist suspects linked to al Qaeda or its affiliates and involved in plotting or attacking the United States.
"I will continue to push that bill," Smith said in an interview. "I know the majority is also putting together some ideas. They're very process-focused. ... I have not seen specifics of that proposal yet and we'll talk to them about it, but obviously I have a much stronger position on that and think that we don't need to have indefinite detention or military custody for the people in the U.S."
Amash is determined to change the law, using town halls in his district and the long reach of Facebook to get his message out. He said many Republicans voted for the defense bill in December after they were promised that legislation fixing the provision would be introduced after Christmas. He's still waiting.
"What I've seen from members of Armed Services Committee is basically an attempt to justify the language as it stands," Amash said. "And considering the extent to which they've dug in their heels on this issue, I'd be surprised if they're actually going to make a real and credible change to the language."
By Andrew P. Napolitano
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