U.S. Senate Armed Services Committee Chairman Levin and ranking Republican McCain (Jason Reed/Reuters)
In what Marcy Wheeler
calls the
battle of two wrong sides, the Democratic wrong side
lost today in a Senate vote.
The Senate soundly defeated a move to strip out controversial language requiring mandatory detention of some terror suspects, voting it down 61 to 37 and escalating a fight with the Obama administration over the future course of the war on terror.
The proposed amendment to the massive National Defense Authorization Act would require the FBI and other civilian law enforcement agencies to transfer al-Qaida suspects arrested overseas on charges of planning or carrying out a terror attack into military custody. It wouldn't apply to American citizens, but the change has drawn strong opposition from civil rights groups and the White House, which has promised to veto the defense bill if that language was included.
That proposed amendment was authored by Sen. Mark Udall (C-CO), who argued in an op-ed in the Washington Post yesterday that the bill without his amendment "gives the military too much responsibility for detainees."
The White House is so concerned about the changes that it has threatened to veto the defense authorization legislation if they are included. In light of that, I have offered an amendment aimed at averting a veto. My amendment would strike the detention provisions from the bill and require the Departments of Defense, Homeland Security, Justice and State as well as the director of national intelligence to issue a joint report detailing the gaps in our detention policy. This report would be due within 90 days and would allow Congress to draft detention legislation that meets our national security needs and keeps faith with the guiding principles of our Constitution.
As Marcy argues though, the heart of the problem with this defense authorization, with Udall's amendment, with the White House's position, is the preservation—the codification—of a unitary executive and "the fairly limitless claims the Executive Branch has, over the last decade (and especially since 2004) greatly expanded the application of the AUMF as a way to ignore laws on the books." This impending showdown between the Senate, including plenty of Democrats, and the White House is one the White House will probably win. This 37-61 vote shows that there isn't a two-thirds majority to override a veto.