WASHINGTON -- Congress would give the president ultimate authority to detain American citizens indefinitely in military custody under the final version of a defense bill expected to pass this week.
The National Defense Authorization Act was facing the threat of a presidential veto after the White House complained that it restricted the administration's ability to fight terrorism and raised "serious and unsettled legal questions." The conference committee working out the differences between the Senate and House versions of the bill added and amended several provisions in an attempt to produce legislation that would pass muster with President Barack Obama, who appealed personally for fixes.
But the version released Monday night still contains the authority to indefinitely imprison suspects linked to al Qaeda or associated groups, including citizens captured in the United States.
"We have [in the bill] the authority to detain without charge or trial terrorism suspects," said Raha Wala, a lawyer with the Law and Security Program of the group Human Rights First. "There aren't any material changes to the indefinite detention provision," he said in a conference call organized by the progressive National Security Network.
To try to meet the White House's concerns, lawmakers shifted the responsibility for granting waivers under the legislation from the Defense Department to the president. They also added language to state that civilian law enforcement retains the authority to investigate and interrogate terrorism suspects, even though the bill requires that those suspects be held by the military.
Opponents argued that although agencies like the FBI would still be allowed to investigate in theory, the compromise could prove unworkable in practice. They questioned how civilian authorities will work with their military counterparts, who could take over any terror-related case unless the president grants a waiver.
"What does that actually mean in practice?" asked Heather Hurlburt, executive director of the National Security Network. "It's unclear, and the people who have to implement it think it's unclear, and it's just inviting years of litigation. ... In some ways, it makes it even worse."
"The national security establishment really comprehensively rejects these provisions as representing the militarization of our justice system," Hurlburt added. "You're deliberately throwing things back into the courts, which is a very strange thing to be seeing."
Proponents have argued that the bill is designed is to spell out what is already being done so that there is less uncertainty surrounding counterterrorism efforts. They say that the military needs clear authority to ensure that the ever-changing terrorist threat can be met. Sen. Lindsey Graham (R-S.C.) declared as the Senate passed its version that the bill affirms that "the homeland is part of the battlefield."
In an effort to soothe those worried about American liberties, the Senate had already added a provision that said the detainee measure will not affect current law regarding Americans.
But current law remains unsettled. One American accomplice of al Qaeda who was held in military detention was Jose Padilla. An appeals court ruled that he could be held by the military, but the Bush administration transferred him to a civilian court before the issue advanced to the Supreme Court. Padilla was convicted in federal court, one of more than 400 such terrorism convictions since 9/11 that would, for the most part, become much more difficult under the latest legislation.
The bill also bars the expenditure of any funds to close the Guantanamo Bay, Cuba, prison for terrorism suspects, which likely would have to be expanded to hold all the people who could no longer remain in the U.S. court system.
U.S. allies have already complained that they do not want to turn over suspects or information that leads to imprisonment at Guantanamo, Hurlburt said, arguing that such concerns are yet another roadblock to counterterrorism efforts.
White House officials were still weighing whether to veto the new bill, which authorizes the budget and sets policy for the Defense Department. The budget itself is expected to pass separately later this week in a larger legislative package to fund the government.
Opponents of the bill said the distinction between the budget and budget authorization is key because presidents have vetoed the authorization in the past, most recently in 2007, while funding still went forward, allowing the military to function.
"We're hoping the president reiterates his veto threat," said Christopher Anders, senior legislative counsel with the American Civil Liberties Union. He argued that if President Obama signed the legislation, the authority to indefinitely detain suspects, including citizens, would become a permanent abridgment of rights.
"This would make this authority permanent. And given how broadly this definition of covered persons has been written, this is something that this president would have if he signs this into law. ... It also means that this is authority that any future president will have for decades to come," said Anders.
Even some members of the conference committee that produced the final bill were disturbed by the detention provisions.
"I do not support the two flawed detention provisions," said Sen. Mark Udall (D-Colo.) in a statement Tuesday on the measure that was shepherded along by the top members of the Senate Armed Services Committee, Chairman Carl Levin (D-Mich.) and ranking member John McCain (R-Ariz.).
"I appreciate that Senators Levin and McCain heard the concerns I raised -- which were echoed by the Secretary of Defense, Director of National Intelligence and the directors of the FBI and CIA -- and made some changes to reduce the harm those provisions would do to national security," Udall said. "Those changes alleviate some, but not all, of my concerns. Therefore, when signing the conference report, I explicitly stated that I do not support sections 1021 and 1022 on detention."
The legislation is likely to pass the Senate and the House this week.
Michael McAuliff covers politics and Congress for The Huffington Post. Talk to him on Facebook.