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The Defense Authorization Bill : Only Hope is the Udall Amendment

Unfortunately, the Senate is scheduled to vote Monday or Tuesday on the 2012 Defense Authorization bill with the horrible detainee provisions. The bill is a primer for indefinite military detention until the end of time, considering it encompasses more than al Qaida and the war on terror is endless. It gives the military total control over detainees.

Sen. Levin and McCain are pushing for a vote on new Amendments for Monday evening. The bill is S. 1867, introduced on Nov. 15. You can read or skim the 682 pages here. The detainee matters are in Subtitle D, starting on page 359 with Section 1031. They go through page 378 and Section 1037. The Congressional Record for Nov. 18 has the most recent events, including a statement by Sen. Levin as to why he thinks the Levin/McCain Amendment is more than fair and the Administration's objections are unfounded.

There are dozens of pending amendments, including the most important one by Colorado Sen. Mark Udall, who explains his amendment here [More...]

The text of Udall's Amendment is here. Essentially, it would strike the detainee provisions and instead insert a timetable to come up with a new plan.

Here's the action page to tell your senator to vote for the Udall Amendment.

The time has passed for "tweaks" to the provisions. The best course now is for Udall's amendment to pass and for nothing to be included in the Senate bill on detainees.

Two Amendments that really needs to be defeated are Sen Collins #1158, making Guantanamo transfer restrictions permanent and Sen. Infofe's Amendment #1093, requiring long term detention at Guatanamo, which he calls "the single greatest repository of human intelligence in the war on terror."

Here is the White House position (as of 11/17, days after the Levin/McCain compromise was introduced.) It didn't threaten a veto of the entire bill -- it said only that Obama's advisors would recommend a veto.

The Administration supports Senate passage of S. 1867, the National Defense Authorization Act for Fiscal Year (FY) 2012. ....Any bill that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President's senior advisers to recommend a veto.

Those holding out hope for an Obama veto are likely to be disappointed....again. Obama also opposed the detainee provisions in the 2011 bill The Ike Skelton National Defense Authorization 18 Act for Fiscal Year 2011.) Yet he signed it anyway, explaining:

Despite my strong objection to these provisions, which my Administration has consistently opposed, I have signed this Act because of the importance of authorizing appropriations for, among other things, our military activities in 2011.

Nevertheless, my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.

Levin/McCain make a big deal of how their bill doesn't "mandate" certain treatment or strictly prohibit transfers of detainees to other countries. While Section 1033 repeals the 2011 version on prohibition on detainee transfers to foreign countries, it replaces it with an overly complicated certification process allowing some exceptions. Even Levin doesn't seem sure of who certain sections of his bill covers or who is included under current law. From Levin's statement in the Congressional record on Najibullah Zazi (a permanent resident alien:)

It is not accurate to say everything the FBI did in the Zazi case would have had to be ``transferred immediately to the military.'' First, it is not at all clear Zazi was covered by the provision because we don't know that he was al-Qaida, and in any event there is an exclusion because he is a lawful resident alien of the United States.

Second, until a coverage determination was made, no transfer would be required and the President would decide how and when that determination would be made. Finally, even if Zazi were somehow determined to be covered, the requirement could have been waived and Zazi could have been kept in civilian custody in the discretion of the executive branch.

If the Senate bill passes, it still has to go to conference with the House Bill that passed in May.

The New York Times explains the uncertainties in the McCain/Levin compromise over charging and holding American citizens here. An October letter from Feinstein, Leahy, Udall and other Dems on the uncertainty is here. Rep. McKeon, chair of the House Armed Services Committee, who is leading the House on the issue, pooh-poohed Obama's concerns in this October 20 letter.

The ACLU says:

“The Senate is going to vote on whether Congress will give this president—and every fu