SB-1867, the National Defense Authorization Act, sponsored by John McCain-(R) and Carl Levin-(D), essentially adds provisions that designates the entire US and its territories as a "battlefield" in the war on terrorism, expanding the US military's power to capture and imprison American citizens anywhere in the world if they are "suspected terrorists", indefinitely, without charge, and without a trial, at Guantanamo Bay or other sites. The bill was drafted by the two senators in a closed committee meeting, without a hearing. Link.
As it stands, the Patriot Act gives only the President the capability to declare someone an "enemy combatant," and the US Supreme Court has ruled that US citizens can be given that designation. (Most notably in the Hamdi case, where the Court ruled an American detained on the battlefield in Afghanistan could be declared an enemy combatant, as long as he had an opportunity to challenge his detention, excellent analysis here. (Any analysis from lawyers in the comments about this is most welcome.) As if having one person determine one's destiny isn't surreal enough, this bill's provisions expands that power of designation to the US military.
Think this won't become law? Think again. We have a Republican-controlled House of Representatives.
The White House, The Secretary of Defense, the Director of National Intelligence, and the Director of the FBI all oppose the bill, (Mueller stating that the bill could hinder the FBI's investigations of "suspected terrorists"), and the latter three have all sent letters to Congress opposing the indefinite detention provision. Link.
The Obama administration has issued a veto threat:
In criticizing the measure, White House officials said that it would cause confusion and interfere with a counterterrorism effort that has been remarkably successful since Sept. 11, 2001 -- across two administrations.
"It is likely that implementing such procedures would inject significant confusion into counterterrorism operations," the White House argued in a Nov. 17 statement.Further, it contended:
This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult.
A White House official said the administration stands by the veto threat. "We take this very, very seriously," the official said.
Senator Mark Udall (D-Colorado) introduced an amendment to kill the indefinite detention provisions, which was voted down.
By a 37-61 margin, senators defeated an attempt to strip the proposed regulations from a vast annual spending bill that has yet to pass but is seen as a sure thing because it affects US troops in Iraq and Afghanistan.
Republicans that helped defeat the amendment state America is "at war" and "suspected terrorists" are not "criminals" that are protected by Miranda Rights or the Constitution:
"Republican Senator Lindsey Graham, who voted against Udall’s amendment, accused Obama of overrelying on the FBI and other civilian institutions in fighting suspected terrorists.
“America is part of the battlefield. We firmly believe the war is coming back home,” he said. “We’re fighting a war, not a crime.”
Interestingly Rand Paul (R-Kentucky), one of the most conservative members of Congress, vigorously criticized the bill as "non-American":
“Detaining citizens without a court trial is not American. In fact, this alarming arbitrary power is reminiscent of Egypt’s ‘permanent’ Emergency Law authorizing preventive indefinite detention, a law that provoked ordinary Egyptians to tear their country apart last spring and risk their lives to fight.”