An unlikely alliance of libertarian Republicans and liberal Democrats is set to confront their House colleagues Thursday night over the highly contentious question of whether the government has the power to indefinitely detain suspected terrorists captured on U.S. soil. This strange-bedfellows coalition is rallying behind a proposal that would make it clear that suspected terrorists detained on U.S. soil must be charged with crimes and tried in federal courts.
Leading the charge are Reps. Adam Smith, the ranking Democrat on the House Armed Services Committee, and Justin Amash, a tea party-backed Republican from Michigan. They are sponsoring an amendment that is set to be considered as House members debate this year’s defense authorization bill, which is expected to pass on Friday by a wide margin. The Senate will begin marking up its own version of the bill next week.
“We have a justice system that’s more than adequate to handle the threat,” Smith said yesterday on the House floor. “We do not have to undermine the Constitution to do that.”
Still, the Smith-Amash amendment faces an uphill battle.
Rep. Buck McKeon (R-Calif.), the powerful chairman of the House Armed Services Committee, has been pushing back against the measure, speaking out about the dangers of limiting the military’s ability to detain and interrogate suspected terrorists. “At no point did last year’s [defense authorization] bill detract from the rights of U.S. citizens,” McKeon said Wednesday on the House floor.
McKeon has been rolling out big-name endorsements of the authorization bill as it is currently written, including former Attorneys General Edwin Meese and Michael Mukasey, along with former Homeland Security Secretary Michael Chertoff, who signed a letter last week blasting the Smith-Amash amendment.
And Michael Hayden, a former director of the Central Intelligence Agency and the National Security Agency, has also come out against the measure. “It seems to fly in the face of what two presidents and Congress have said, which is that we are at war with terrorists,” he told POLITICO. “The president needs to have the ability to detain them as enemy combatants for intelligence purposes.”
The highly anticipated amendment – one of more than 140 expected to be considered – is a follow-up to last year’s debate over how the Constitution should apply to those who wish to do harm to the United States. The issue drew heated rhetoric from both sides and a veto threat from the White House.
Administration officials were concerned the detainee provisions could limit the power of the executive branch to decide for itself whether to try suspected terrorists in civilian courts or in military commissions. President Barack Obama ultimately signed last year’s bill but issued a statement saying he “will not authorize the indefinite military detention without trial of American citizens.”
Benjamin Wittes, a fellow at the Brookings Institution and an expert on national-security law, said there has been a common misconception over whether or not last year’s defense authorization act allows the president to detain U.S. citizens indefinitely.
“The NDAA basically didn’t address the question except to say we’re not answering it,” Wittes told POLITICO. “The best way to understand the current status quo is that it’s an open question that does not address whether or not you can do that.”
The Smith-Amash amendment, he added, “is basically an effort to clarify that not only does the NDAA not authorize the indefinite detention of citizens, but it actually forbids it.”
