Indefinite Military Detention of Citizens on US Soil Still in Pentagon Spending Bill

A fast-moving defense authorization bill in the Senate would grant police powers to the military to indefinitely detain American citizens and legal aliens suspected of aiding terrorists anywhere in the world – including on U.S. soil – without charges or the right to a trial in the criminal justice system.

Though top military and national security officials in the Obama administration oppose the detention provisions—and the White House has threatened a veto—opponents of expanding the military’s reach onto U.S. soil were unable to amend the bill on Tuesday.

“The Supreme Court has ruled that citizens can be held,” Sen. Carl Levin, D-Michigan, who helped craft the provision, said moments before voting on the amendment to remove the language. “We can and must deal with the Al Queda threat.”

“These provisions could well represent a threat to our constitutional liberties,” countered Sen. Mark Udall, D-Colorado, whose amendment failed 37-61. “What is not clear is what we do with someone arrested in his home because of suspected terrorist ties. These detainee provisions would authorize that person’s indefinite detention, but it misses a critical point. How do we know that a citizen has committed these crimes unless they are tried and convicted? Do we really want to open the door to domestic military police powers and possibly deny U.S. citizens their due process rights?”

The defeat of Udall’s amendment is not the end of the process in the Senate, which will be taking up nearly 100 other amendments in coming days. The bill, which may see a final vote on Thursday, then goes to the House, and then to a conference committee, and then back to each chamber before being sent to the White House for the president's signature.

There will be more attempts to roll back the detention provisions in coming days, Senate aides said. Those efforts range from other proposed amendments to strip the provisions entirely to restricting the military’s authority to detain only those captured outside the country. There is also the possibility that a deal on the language could be folded into a package of amendments that would get an up-or-down voice vote. 

Nonetheless, the bill’s language is deeply disturbing to senators and civil rights advocates who shudder at the ongoing diminishment of constitutional rights and judicial procedures in response to the 9/11 attacks.

“I fought against the Bush administration policies that left us in the situation we face now, with indefinite detention being the de facto administration policy,” Sen. Patrick Leahy, D-Vermont, said in a press statement Tuesday. “And I strongly opposed President Obama’s executive order on detention when it was announced last March because it contemplated, if not outright endorsed, indefinite detention.”

“Despite strong opposition to the harmful detention legislation from virtually the entire national security leadership of the government, the Senate said no to the Udall amendment and yes to indefinite detention without charge or trial," said Christopher Anders, ACLU senior legislative counsel. "Unless House and Senate conferees can somehow fix these bad detention provisions, President Obama should follow through with his veto threat.” 

Senate opponents to the military detention language said on the Senate floor that the Armed Services Committee included the language without holding a hearing or asking for input from committees that oversee the FBI and other agencies that would be ordered to work with the military.

They also said that those agencies do not want the additional military powers granted because it would vastly complicate the way the federal government fights terrorism domestically. They cited statements by FBI director Robert Mueller, Director of National Intelligence James Clapper, Secretary of Defense Leon Panetta, and opposition by others, including numerous retired generals and admirals, in addition to the ACLU, the American Bar Association, the American Legion, and International Red Cross.