JURIST - Paper Chase: Senate approves defense spending bill with controversial detainee provision

[JURIST] The US Senate [official website] on Thursday voted 93-7 [roll call materials] to pass the National Defense Authorization Act for 2012 [SB 1867, PDF], including a controversial provision authorizing the president to use "all necessary and appropriate force" to detain individuals suspected of terrorism. The Senate on Tuesday rejected an amendment to the bill [JURIST report] that would have struck the provision and instituted a timeline to allow further study and investigation on the issue of counterterrorism by Congress. The provision grants the military complete custody and control over terror suspects and grants authority to Attorney General Eric Holder [official website] over whether suspects should be tried in military or civilian courts. Opponents of the provision fear it could be applied to US citizens threatening their constitutional liberties. Supporters argue that the idea of an American citizen suspected of aiding al Qaeda [GlobalSecurity backgrounder; JURIST news archive] not getting due process is simply a lie. The bill could still face a presidential veto, in accordance with a statement of administration policy [text, PDF] the White House released in November which warned that President Barack Obama [official website] could veto legislation [JURIST report] if it "challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, [or] protect the Nation." The White House maintains the position that the FBI should have unrestricted access and interrogation rights over domestically detained al Qaeda suspects, rather than the military.

The provision was approved [JURIST report] earlier this month by the Senate Armed Services Committee (SASC) [official website] in a unanimous vote after disagreements regarding the provision had blocked their passage for months [CNN report]. The passage by the SASC came shortly after an American Civil Liberties Union (ACLU) [advocacy website] report [PDF] claiming that the US is diminishing its "core values" [JURIST report] with regard to various counterterrorism measures put in place during the 10 years since the 9/11 attacks [JURIST backgrounder]. To support this contention, the report cites to US policies regarding indefinite military detention for terrorism suspects, the use of torture on terrorism suspects and enemy combatants, racial and religious profiling and domestic surveillance and wiretapping. The report posits that certain US policies run deeper than what is known by the American people, civil liberties continue to be violated in secret and that future violations are imminent. The ACLU acknowledged that the government has sought to cease certain questionable practices, citing President Barack Obama's directive to close the Guantanamo Bay military prison [JURIST news archive], but stated that other questionable practices remain "core elements of [US] national security strategy today."