The Senate passed the 2012 defense authorization bill 86-13 on Thursday, one day after the House of Representatives passed it in a 283-136 vote. The bill, which codifies a system of indefinite detention for terrorism suspects, will be sent to the President’s desk today.
The Obama administration is supportive of the bill and is expected to sign it into law, despite initially threatening to veto it on the grounds that those provisions “mandat[ing] military custody” amounted to a “restriction of the President’s authority” to choose what to do with terrorism suspects. No mention of the disintegration of the fifth amendment’s due process clause appeared in the administration’s objection.
In response to this veto threat, the Senate revised the provisions mandating military custody and inserted the option of a waiver for American citizens; that is, the Executive branch would be allowed to waive the requirement to deprive suspects of their constitutional rights at their discretion.
As revealed in the Senate deliberations last week, the Obama administration itself requested the principal authors of the provision – John McCain and Carl Levin – to include language authorizing due-process-free military custody for American citizens. The initial threat of veto was apparently nothing more than political theater on the part of the White House.
While the provision’s language is threatening to the due process rights of the accused – whether U.S. citizen or not – the bill would really only codify into law already existing practice for depriving accused terrorists of due process.
“If President Obama signs this bill,” said Laura W. Murphy, director of the ACLU Washington Legislative Office, ”it will damage both his legacy and America’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”