December 15, 2011
WASHINGTON — Congress passed a massive $662 billion defense bill Thursday after months of wrangling over how to handle captured terror suspects without violating Americans’ constitutional rights.
A last-minute compromise produced a truce, but lawmakers said the fight is not yet over.
The Senate voted 86-13 for the measure and will send it to President Barack Obama for his signature. The bill would authorize money for military personnel, weapons systems, the wars in Afghanistan and Iraq and national security programs in the Energy Department for the fiscal year that began Oct. 1. The legislation is $27 billion less than Obama wanted and $43 billion less than Congress gave the Pentagon this year, a reflection of deficit-driven federal budgets, the end of the Iraq war and the troops drawdown in Afghanistan.
In a rare show of bipartisanship, the House voted 283-136 for the measure late Wednesday. Sen. John McCain of Arizona, the senior Republican on the Armed Services Committee, said Thursday the cooperation was a “little ray of sunshine” in a bitterly divided Washington.
The comment belied a fierce struggle over provisions on suspected terrorists that have pitted the White House against Congress, divided Republicans and Democrats and drawn the wrath of civil rights groups. The White House initially threatened to veto the legislation but dropped that warning late Wednesday, saying last-minute congressional changes no longer challenge the president’s ability to combat terrorists.
Among other things, the law also includes new financial sanctions against Iran and withholds money from Pakistan until Congress is convinced that Pakistan was working toward countering weapons used to ambush American soldiers.
Two provisions have created the most controversy in the United States.
One would require military custody for foreign terrorist suspects linked to al-Qaida or its affiliates and involved in plotting or attacking the United States. The suspects could be transferred to civilian custody for trial, and the president would have final say on determining how the transfer would occur. Under pressure from Obama and his national security team, lawmakers added language that says nothing in the bill may be “construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.”
The attorney general, in consultation with the defense secretary, would decide whether to try an individual in federal court or by military tribunal. The president could waive the entire requirement based on national security.
The second provision would deny suspected terrorists, including U.S. citizens seized within the nation’s borders, the right to trial and subject them to indefinite detention. It reaffirms the post-Sept. 11 authorization for the use of military force that allows indefinite detention of enemy combatants. The provision includes a Senate-passed compromise that says nothing in the legislation 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.”
Conservative Republicans, Democrats and civil rights groups have warned that the provision would allow the government to hold U.S. citizens indefinitely. Such incarceration is forbidden by the U.S. Constitution.
“If these provisions deny American citizens their due process rights under a new, nebulous set of directives, it not only would make us less safe, but it will serve as an unprecedented threat to our constitutional liberties,” said Democratic Sen. Mark Udall.
Senate Intelligence Committee Chairwoman Dianne Feinstein, also a Democrat, said she and several other lawmakers, including the Judiciary Committee’s Democratic chairman, Pat Leahy, would introduce legislation to ensure that no U.S. citizen is held indefinitely without trial.
The sponsors of the defense bill challenged the criticism.
“Those who say that we have written into law a new authority to detain American citizens until the end of hostilities are wrong,” said Senate Armed Services Committee Chairman Carl Levin, also a Democrat.
Citing the courts, Levin has repeatedly pointed out that a June 2004 Supreme Court decision, in a case called Hamdi v. Rumsfeld, said U.S. citizens can be detained indefinitely.
“I believe that if an American citizen joins a foreign army or a hostile force like al-Qaida that has declared war and organized a war against us and attacks us, that that person can be captured and detained as an enemy combatant under the law of war,” the senator said.
Said McCain: “The language in this bill will not affect any Americans engaging in the pursuits of their constitutional rights.”
Agitating for a power-sharing role in the war on terror, Congress had pushed the bill into an escalating fight over whether to treat suspects as prisoners of war or as criminals.
The Obama administration insists that the military, law enforcement and intelligence officials need flexibility in the campaign against terrorism. Obama points to his administration’s successes in killing Osama bin Laden, the al-Qaida leader, and a major al-Qaida operative, Anwar al-Awlaki, a U.S.-born radical Islamic cleric. Republicans counter that their efforts are necessary to respond to an evolving, post-Sept. 11, 2001, threat and that Obama has failed to produce a consistent policy on handling terror suspects.
Among other elements of the bill, it would:
—Impose tough new penalties on Iran, targeting foreign financial institutions that do business with that country’s central bank. The president could waive those penalties if he notified Congress that it is in the interest of national security.
—Freeze $700 million in funding for Pakistan until the defense secretary provides Congress a report on how Islamabad is countering the threat of improvised explosive devices.
—Require the contractor of the troubled F-35 Joint Strike Fighter aircraft program, Lockheed Martin, to cover extra costs on future purchases of the aircraft. Congress is frustrated with delays and cost overruns in the program.
The Pentagon envisions buying 2,443 planes for the Air Force, Marine Corps and Navy, but the $1 trillion price could make it the most expensive program in military history.
In a lengthy speech on the “military-industrial-congressional complex,” McCain railed against the program and the decision to develop and integrate its critical technologies
“Experts call what the Pentagon has been trying to do here ‘concurrent development.’ I call it a mess,” McCain said.