In a letter to Senate Majority Leader Harry Reid, D-Nev., the lawmakers — Judiciary Chairman Patrick Leahy and Intelligence Chairwoman Dianne Feinstein — said the provisions would undercut U.S. counterterrorism efforts and urged him to remove the sections from the bill. The Obama administration also opposes the provisions.
"Professionals in the intelligence community and law enforcement need the flexibility to use all tools to effectively interrogate, incarcerate and bring terrorists to justice," Leahy and Feinstein wrote Oct. 21 along with 11 other Democratic senators.
The issue has exposed divisions within the Senate and the Democratic Party.
The Senate Armed Services Committee approved the $683 billion defense bill in June that would authorize spending on military personnel, weapons systems and wars in Iraq and Afghanistan in the fiscal year that began Oct. 1. The panel, led by Sen. Carl Levin, D-Mich., approved the provision on military custody on a 25-1 vote.
But the administration's opposition and Reid's concerns have delayed Senate consideration of the legislation with about 10 weeks remaining in the session.
The provision in the bill would require military custody of a suspect determined to be a member of al-Qaida or its affiliate and involved in the planning or an attack on the United States. The administration argues that such a step would hamper efforts by the FBI or other law enforcement to elicit intelligence from terror suspects, and Reid has said "limitations on that flexibility, or on the availability of critical counterterrorism tools, would significantly threaten our national security."
Levin has argued that the provision included a national security waiver that the administration could exercise to bypass the requirement.
This isn't the first time Congress has tried to limit the administration on the detainee issue. Last year's defense bill barred the transfer of detainees at the naval prison at Guantanamo Bay, Cuba, to the United States. The omnibus spending bill that President Barack Obama and Congress approved in April also prevented the transfer of detainees from Guantanamo to the U.S., prohibited the construction or modification of facilities in the United States to house detainees and required the defense secretary to notify Congress before transferring a terror suspect to a foreign country.
Congressional Republicans and some Democrats want to keep the facility at Guantanamo open despite Obama's efforts, which have proven unsuccessful, to close the prison. Lawmakers also favor trying suspects in military commissions instead of federal courts.
Separately, Rep. Howard "Buck" McKeon, R-Calif., chairman of the House Armed Services Committee, sent a letter to Obama expressing frustration with the administration's unwillingness to discuss the House-passed defense bill's provisions on terror suspects. The House bill, approved this past summer, includes different provisions limiting the administration's authority on handling detainees that the White House opposes.
"The administration has shown a willingness to undertake nothing short of extraordinary action regarding targeting terrorists overseas," McKeon wrote in an Oct. 20 letter. "Yet is has shown none of this resolve when it comes to detaining our enemies instead."
McKeon argued that the administration has "foreclosed options that are critical to our national security."
The House and Senate versions of the defense bills need to be reconciled and cleared by Congress for the president. In doubt is Congress' four-decade record of completing defense bills and sending them to the president.