Washington, DC- The White House Thursday handed out its first veto threat since President Barack Obama won reelection when advisers warned that they would counsel the commander-in-chief to nix the defense bill currently on the floor of the Democratic-controlled Senate.
The White House warned that the National Defense Authorization Act of 2013 breaks from the president's budget request, limits his ability to pursue his defense strategy and trespasses on his power.
Among the issues the president's Office of Management and Budget singled out were some of the controversial military detainee provisions, although it did not take issue with language passed in last year's bill that lets the military hold American civilians without trial.
Instead, the White House complains about ongoing restrictions on its ability to transfer prisoners from the Guantanamo Bay, Cuba, prison base for terrorism suspects, which are reasserted in section 1031 on the bill.
"When he signed past versions of this legislation, the President objected to the restrictions carried forward by section 1031, promised to work towards their repeal, and warned the Congress that the restrictions on transferring detainees from Guantanamo Bay to foreign countries would in certain circumstances interfere with constitutional responsibilities committed to the Executive Branch," said a statement of administration policy.
"Since these restrictions have been on the books, they have limited the Executive's ability to manage military operations in an ongoing armed conflict, harmed the country's diplomatic relations with allies and counterterrorism partners, and provided no benefit whatsoever to our national security," the statement said.
The restriction stemmed from debates in recent years over both transferring terrorist suspects to the United States and sending them back to their homes where some have rejoined terrorist groups.
"The administration also continues to oppose the prohibition on funding to construct, acquire or modify a detention facility in the United States to house any individual detained at Guantanamo, which shortsightedly constrains the options available to military and counterterrorism professionals to address evolving threats," the White House said, dubbing the restrictions "misguided when they were enacted."
Civil liberties advocates agree that suspects can be brought to the United States and tried in civilian courts, but many remain disappointed that Obama did not veto last year's NDAA, which codified the right of the executive to hold any terrorism suspect in military custody without trial.
Senate votes down indefinite detention of Americans.
The Senate took a step Thursday toward ending the indefinite detention of Americans in the U.S., voting for a narrow amendment that some civil liberties groups opposed, even though they said it was in the right direction.
The measure, offered by Sen. Dianne Feistein (D-Calif.) as an amendment to the National Defense Authorization Act of 2013, specifies that citizens and legal residents suspected of terrorism in the U.S. cannot be held without trial indefinitely.
"I know this is a sensitive subject, but I really believe we stand on the values of our country, and the value of our country is justice for all," said Feinstein before the Senate voted 67 to 29 to add her provision to the NDAA.
Civil libertarians had problems with her amendment, even though many regarded it as a positive step.
The key sentence in her measure says: "An authorization to use military force, a declaration of war, or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States apprehended in the United States, unless an Act of Congress expressly authorizes such detention."
First, the rights groups argued, the measure does not provide justice for all, because it does not apply to non-citizens or Americans caught overseas.
"The constitutional requirements of due process of law apply to all persons within the United States," a coalition of 20 groups wrote in a letter to Feinstein Thursday. "The 5th Amendment to the Constitution states that 'No person shall be…deprived of…liberty…without due process of law.'"
The groups also said they worried that part of that sentence suggests that Congress believes it can write laws that abridge basic constitutional protections in the future.
"The clause 'unless an Act of Congress expressly authorizes such detention' could be read to imply that there are no constitutional obstacles to Congress enacting a statute that would authorize the domestic military detention of any person in the United States," the letter said.
2013 version of NDAA makes it even easier to indefinitely detain Americans without charge or trial.
By Madison Ruppert:
Unfortunately, it looks like the National Defense Authorization Act (NDAA) for Fiscal Year 2013 makes it even easier for the U.S. government to indefinitely detain American citizens without charge or trial.
Despite the many claims that Americans in fact could not be indefinitely detained under the 2012 version of the NDAA, a federal judge stated in court that Americans could be held indefinitely under the act earlier this year and ruled the provisions unconstitutional, a ruling which was quickly reversed by a judge appointed by Obama.
Some news outlets were falsely reporting that the new NDAA actually did more to protect the rights of Americans, but upon further scrutiny, they retracted the statements and indeed concluded that the new NDAA makes it easier for the government to detain U.S. citizens indefinitely.
The misleading passage, found in Section 1033, states:
Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution for any person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) and who is otherwise entitled to the availability of such writ or such rights.
Attorney Bruce Afran, one of the attorneys representing the activists and journalists who sued the Obama administration over the indefinite detention provisions in the 2012 NDAA, clarified the language to Business Insider.
Afran said that although indeed the provision gives U.S. citizens a right to a civilian trial (Article III) based on “any [applicable] constitutional rights,” there are no rules in place to actually exercise this right which means that detained Americans actually have no way to get access to lawyers, their family or even the court itself once they are detained by the military.
Afran also pointed out that the new NDAA goes beyond the previous version currently in place.
“The new statute actually states that persons lawfully in the U.S. can be detained under the Authorization for the Use of Military Force [AUMF]. The original (the statute we are fighting in court) never went that far,” said Afran.
“Therefore, under the guise of supposedly adding protection to Americans, the new statute actually expands the AUMF to civilians in the U.S.,” Afran added.
“The biggest thing about the  NDAA was that you weren’t getting a trial … Nothing in here says that you’ll make it to an Article III court so it literally does nothing,” said Dan Johnson, the founder of People Against the NDAA (PANDA), to Business Insider. “It’s a bunch of words, basically.”