Vetoing a defense budget bill at a time of war might be tantamount to political suicide. Yet U.S. President Barack Obama may have no choice.
The trouble stems from provisions regarding the detainment of suspected terrorists that were inserted into the National Defense Authorization Act by Senators Carl Levin, Democrat of Michigan, and John McCain, Republican of Arizona. The bill passed the Senate overwhelmingly on Dec. 1 and is now in conference committee to be reconciled with the House version. The White House has threatened to reject the entire bill if the Senate language is retained.
The intention of the detainee measures is a good one: to provide clear congressional oversight of a process that has been ad-hoc since the fight against global jihadists began after the Sept. 11 attacks. However, neither version of the bill truly establishes a cohesive legal framework for holding detainees and instead basically maintains the status quo. The main change enshrined in the Senate language is a bad one: It gives the Pentagon full responsibility for holding suspected terrorists.
The Justice Department would be able to apply for a waiver to detain and prosecute an individual. But it boggles the mind to think that a fast-moving investigation with national security implications might be held hostage to bureaucratic maneuvering. Would we really want FBI agents, having apprehended someone committing a terrorist act in the U.S., to have to wait on a federal waiver before they could start questioning the suspect?
Other countries may also be hesitant to turn over suspects to U.S. authorities knowing that they would be put in military rather than civilian custody. For those reasons, Secretary of Defense Leon Panetta and FBI Director Robert S. Mueller III both oppose the Senate’s provisions.
Congress would keep the nation safer by sticking to the House language on detainees, which would still require the Justice Department to consult with the Secretary of Defense and Director of National Intelligence to determine whether a suspect should be held by civilian or military authorities.
The House version does have one egregious passage that ideally would be stripped out in the reconciliation process: A ban on federal court trials for any foreign national whose alleged offense could be subject to a military commission. Flexibility should be preserved for circumstances in which national security would be better served through civilian justice.
Both versions of the bill would make it harder for the president to transfer detainees from the camp at the U.S. naval base in Guantanamo Bay, Cuba, to other countries or a location within the U.S. This is unfortunate; we would like to see President Obama close the camp, as he pledged during the 2008 campaign. But it is a political reality that no member of Congress has the stomach to allow the detainees to be housed in his or her district or state. Gitmo isn’t shutting down any time soon.
Both bills would reaffirm the government’s ability to detain suspects more or less indefinitely. Objections from civil libertarians are understandable but not persuasive. This war has spread far from the battlefields of Afghanistan, and its open-ended nature requires long-term detention.
We would prefer Congress offer a more concrete outline of its preferred legal regime, and that it consider creating a National Security Court that would operate in the gray area between civilian and military law. However, the only disqualifying measure under debate now is the Senate’s mandate on military detainment. That would be a setback to national security. If the conference committee doesn’t remove it, Obama should pick up his veto pen.
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