The Senate Armed Services Committee voted Tuesday to approve a new version of the defense authorization bill that changes detainee-related provisions in the measure and could clear the way for the legislation to reach the floor as soon as this week.
However, the changes did not assuage the concerns of the chief critics of the legislation in the Senate, at the White House or the Pentagon, making the bill's ultimate prospects unclear. At the Democratic caucus lunch Tuesday, Intelligence Committee Chairwoman Sen. Dianne Feinstein (D-Calif.), Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Sen. Mark Udall (D-Colo.) all expressed strong opposition to the modified detainee language, sources said.
"I am convinced we all want the same result—flexibility for our national security professionals in the field to detain, interrogate, and prosecute suspected terrorists. The Department has substantial concerns, however, about the revised text which my staff has just received within the last few hours," Defense Secretary Leon Panetta said in a letter to the Senate Tuesday. (It's unclear whether Panetta's letter was received before the committee voted.)
In joint statement, Leahy and Feinstein said they remained opposed to what they called a 'so-called "agreement."'
"The bill reported by the Armed Services Committee today does little to resolve our stated concerns and those of the administration about mandatory military custody, including the potential for this bill to create operational confusion and problems in the field. We have said before that these proposals are unwise, and will harm our national security. That is as true today as it ever has been," the committee chairs said. “Neither the Senate Judiciary Committee, nor the Senate Intelligence Committee – the committees with primary jurisdiction over terrorism matters – were consulted in the drafting of the proposals approved today by the Armed Services Committee. We continue to oppose these measures.”
Key proponents of the detainee language, Republican Sens. John McCain of Arizona, Lindsey Graham of South Carolina, and Kelly Ayotte of New Hampshire, praised the revised measure.
"These provisions do not apply to U.S. citizens. While this compromise includes many of the recommended changes and clarifications sought by the Administration, it retains critical components such as the requirement for military custody of members of al-Qaeda or its associated forces captured while participating in or planning an attack on the U.S. or its coalition partners," the trio said. "We are encouraged by today’s unanimous vote, and look forward to debating these vital issues on the floor of the Senate when the NDAA comes up for consideration as early as this week.”
The revised language, agreed to at a closed Armed Services Committee markup, changes several controversial portions of the detainee language. A provision describing law-of-war detention authority has been modified to indicate that it's not intended to change any current authority the president has. Language in that part which seemed to exclude U.S. citizens but then said they, too, could be detained if the Constitution permitted was stricken from that part.
Another section of the bill regarding mandatory military detention was modified to address concerns that some countries might refuse to extradite individuals to the U.S. if they would be placed in military custody. The mandatory-custody provision does not apply to U.S. citizens. It also excludes permanent resident aliens for their acts in the U.S. "except to the extent permitted by the Constitution." Language was also added to indicate that ongoing investigations or interrogations should not be disrupted to place an individual in military custody. As in previous versions, the Defense Secretary can waive the mandatory coverage provisions for national security reasons.
The modified bill also extends restrictions on transfers out of Guantanamo for one year, rather than indefinitely as in the previous version. However, some critics said the bill could require certifications and formal Congressional notifications for individual prisoners currently held or captured in the future in Iraq or Afghanistan, in addition to those already at Guantanamo Bay.
"The Administration agreed to have military custody apply to al Qaeda members captured outside the United States (subject to a national security waiver) but disagrees with the committee decision not to preclude the application of the provision inside the United States," the Armed Services committee said in a statement.
In his letter, Panetta said: "The failure of the revised text to clarify that section 1032 applies to individuals captured abroad, as we have urged, may needlessly complicate efforts by frontline law enforcement professionals to collect critical intelligence concerning operations and activities within the
During Tuesday's markup, Udall offered a motion to strip all the detainee provisions from the bill but the motion failed on a voice vote, a Senate source said. The panel later reported out the entire bill on a unanimous, 26-0 roll call vote. The new bill also contained a funding cut to align budgets with legislation passed this summer.
"I continue to have grave concerns about the detainee provisions in the Senate's version of the 2012 Defense Authorization Act, not the least of which is that questions remain about the impact on American citizens and counterterrorism operations," Udall said in a statement. "I do not believe that the consequences of the provisions have been adequately considered, and it should be noted that the Department of Defense strongly objects to their inclusion in the NDAA. I will be presenting amendments on the floor to modify the provisions based on the valid concerns raised by the Department of Defense and members of the intelligence community."