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Military Detention Bill Set for Final Votes. Obama Drops Veto Threat

December 13, 2011 - by Donny Shaw

After a full weekend of secret meetings, negotiators on the Defense Authorization bill conference committee have drafted a final version that retains the authority for the military to indefinitely maintain terrorism suspects, including U.S. citizens, without charge or trial while attempting to address the concerns of the President that prompted a veto threat. The final bill is set to be approved by the House and the Senate this week.

“I very strongly believe it should satisfy the administration,” Senate Armed Services Committee Chairman Carl Levin [D, MI] told members of the press last night as he unveiled the final bill. Several reporters who have followed the bill closely, including Marcy Wheeler and Benjamin Wittes, suspect that Levin is right. 

Remember, the Obama Administration never threatened to veto over Section 1031 — renumbered as Section 1021 in the conference committee bill — which is the section that authorizes military detention of U.S. citizens. As noted in his Statement of Administrative Policy on the Senate version: “the authorities codified in this section already exists” (presumably under the Padila and Hamdi: decisions), therefore, “the Administration does believe codification is necessary.”

If Section 1032/1021 becomes law, it will signal congressional approval of the authority for the military detention of U.S. citizens that has already been advanced by the other branches of the federal government, as well as provide for legal codification for those powers, which may give the military, under Obama or any future President, more leverage to justify an expansive interpretation.

The language of the bill authorizes indefinite military detention without trial for anyone who has “substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.” The key phrases there — “substantial support,” “associated forces,” “hostilities” — lay the groundwork for the military’s detention power to be extended beyond al-Qaeda and the Taliban to anyone providing support for potentially any group that is hostile towards the U.S., domestic or abroad. For example, if a lone-wolf domestic terrorist claimed allegiance to an activist group or cause, nothing in this prevents the military from labeling the entire group “hostile” and using this power to detain them without trial. And the consistent over reactions to social uprisings of the increasingly militarized police forces across the U.S. does not help assuage concerns that this language could be used to justify cracking down on legitimate, constitutionally protected political action.

As for what has been changed in the final bill, the following new language has been added to the section the Administration actually opposed, which would mandate that the military use the detention authority laid out in 1032/1021 on all non-U.S. citizen terrorism suspects:

Nothing in this section shall 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.

It’s not clear how that could be the case, given that it’s attached to a provision the sole purpose of which is to require the government to handle terrorism suspects in a specific way. But since the conference committee did talk with Administration officials during their secret meetings, it’s likely that this was pre-negotiated and will be enough to get Obama to sign the bill. As of this writing there has been no official statement from the Obama Administration on the final version of the bill. I’ll update this post as soon as there is.

UPDATE: The Obama Administration has dropped its veto threat. This is now virtually guaranteed to become law.

 Pictured above are the sponsors of the Senate verisons of the bill, Sen. Carl Levin [D, MI] and Sen. John McCain [R, AZ].


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