- Associated Press - Wednesday, December 14, 2011

WASHINGTON (AP) — FBI Director Robert S. Mueller III on Wednesday expressed concerns about what he called the “uncertainty” of requiring military custody for suspected terrorists, casting doubt on a massive defense bill that Congress was racing to complete.

Testifying before the Senate Judiciary Committee, Mr. Mueller said a coordinated effort by the military, intelligence agencies and law enforcement has weakened al Qaeda and captured or killed many of its leaders, including Osama bin Laden and Anwar al-Walaki. He suggested that the divisive provision in the bipartisan defense bill would deny that flexibility and prove impractical.

“The statute lacks clarity with regard to what happens at the time of arrest. It lacks clarity with regard to what happens if we had a case in Lackawanna, New York, and an arrest has to be made there and there’s no military within several hundred miles,” Mr. Mueller said. “What happens if we have … a case that we’re investigating on three individuals, two of whom are American citizens and would not go to military custody and the third is not an American citizen and could go to military custody?”

President Obama personally has appealed for last-minute changes to the bill’s provisions on terrorism suspects, as have senior members of his national security team, including Defense Secretary Leon E. Panetta, Secretary of State Hillary Rodham Clinton and Mr. Mueller. The White House has threatened a veto over issue.

The bill would require that the military take custody of a suspect deemed to be a member of al Qaeda or its affiliates and who is involved in plotting or committing attacks on the United States. There is an exemption for U.S. citizens.

House and Senate negotiators who worked out a final version of the bill on Monday made some changes. They added language 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 bill also says the president can waive the provision based on national security. It was unclear whether that mollified the White House, which has not said whether the veto threat still stands.

“My continuing concern is that that uncertainty will be there until it is resolved in some way by statute or otherwise,” Mr. Mueller said.

On the other side of the Capitol, the House began debate on the legislation and was expected to pass it overwhelmingly. The bill would authorize $662 billion for military personnel, weapons, the wars in Iraq and Afghanistan, and national security programs in the Energy Department for the budget year that began Oct. 1.

Reflecting a period of austerity and a winding down of decade-old conflicts, the bill is $27 billion less than Mr. Obama requested and $43 billion less than Congress gave the Pentagon.

House and Senate negotiators made several changes to appease the Obama administration during their weeklong, private sessions.

They abandoned a House effort to limit the president’s ability to put in place a nuclear weapons treaty with Russia and decide on the size of the arsenal. They also 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 on.

They made changes sought by the Treasury Department to a provision imposing tough penalties on foreign financial institutions that do business with Iran’s central bank.

The provisions on how to handle suspected terrorists had divided Mr. Obama’s senior national security officials and Congress, as well as Democrats and Republicans. The test of wills reflects the dispute over whether to treat suspects as prisoners of war or criminals.

In an opinion piece in Tuesday’s New York Times, retired Marine Corps Gens. Charles Krulak and Joseph Hoar urged Mr. 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.

The bill begins a reduction in defense spending, a reality the Pentagon hasn’t faced in the decade since the Sept. 11 terrorist attacks. Pentagon spending has nearly doubled in that period, but the deficit-reduction plan that Mr. Obama and congressional Republicans backed this summer sets the Defense Department on a budget-cutting course.

Sen. John McCain of Arizona, the top Republican on the Senate Armed Services Committee, and several other GOP defense hawks pledged to return to Washington next month with a plan to avoid automatic across-the-board cuts to defense required in 2013. The failure of the deficit supercommittee last month means $1.2 trillion in cuts over the next 10 years, with half from defense.

Defense hawks said the 10 percent cut would hollow out the Pentagon and devastate U.S. military readiness.

Sen. McCain and Republican Sens. Jon Kyl of Arizona, Lindsey Graham of South Carolina and Kelly Ayotte of New Hampshire promised an alternative package of cuts but offered no specifics about what they would be.

Associated Press writer Andrew Taylor contributed to this report.

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