Veto threat lingers for defense bill

Lawmakers from both chambers of Congress say they have agreed upon a mutually acceptable version of the 2012 National Defense Authorization Bill in closed conference meetings, paving the way for the House and Senate to each pass a final version of the bill that would then go to President Barack Obama to either sign into law or veto.

According to members of Congress speaking at a press briefing on the night of Dec. 12, votes on the bill in both chambers can be expected this week.

Looking to skirt the ongoing controversy over the bill’s provisions on handling and detaining suspected terrorists, some new compromise language was inserted into the bill. Senate Armed Services Committee Chairman Sen. Carl Levin (D-Mich.) told reporters Monday night that he thought the new provisions adequately addressed concerns that the law allows for unconstitutional military detainment of U.S. citizens suspected of terror acts without charge or trial.

According to published reports, President Obama has threatened to veto the bill. Lawmakers speaking to the press late on Dec. 12 said there had been meetings between Congress and the White House that they believe helped ensure the bill would be amenable to both the executive and legislative branches.

“I can’t imagine that the president would veto this bill,” Levin said. He downplayed the bill’s potential to impede traditional law enforcement, a concern voiced by the Obama administration. “I very strongly believe this should satisfy the administration, and hope it will.”

Among the amended provisions that address the detainment concerns is a clause that appears to prevent any of the NDAA’s measures from overriding U.S. rights to due process.

“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, regardless of whether such covered person is held in military custody,” the provision states.

Another amended provision is a waiver that grants the executive branch more powers to decide whether a suspected terrorist gets tried in civilian or military courts.

But according to OpenCongress.org, the bill does still include powers for the military to detain those suspected of terrorist activity indefinitely, a measure that has created much of the uproar surrounding the bill.

“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,’” according to an OpenCongress.org blog post. “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.”

Capitol Hill lawmakers have insisted the measures specifically target terrorists and don’t pose a threat to law-abiding U.S. citizens, but Thomas McDonnell, a professor at Pace Law School and terrorism expert, said that even with the modified provisions, the language in the NDAA addressing detainment is ambiguous.

“The main purpose is to ensure that those involved in Islamist terrorism get tried by a military commission, not the federal courts,” McDonnell said. “This is extraordinarily broadly written material. We don’t know exactly what it means in terms of how U.S. citizens are treated … it’s unclear.”

He noted that the laws appear to be in violation with the Geneva Conventions in that the military commissions aren’t constitutional courts – and that’s part of the reason that the approach is all wrong, he said.

“We’re treating this problem as a military problem in general, and a law enforcement problem as the exception—it should be exactly the reverse,” McDonnell said. “Our federal courts are very powerful. Military court martial is appropriate in some cases, but this law pushes that into a lot of cases.”