Homeland Battlefield Bill Revised in Bid to Avoid Veto

By Josh Gerstein, Politico

13 December 11

Congressional conference report unveiled Monday evening on the National Defense Authorization Act should resolve concerns that led the White House to issue a veto threat against the legislation, House and Senate leaders said.

The Obama administration warned last month and reiterated as recently as Friday afternoon that President Barack Obama was likely to veto the legislation if provisions designed to push terror suspects into military custody were not changed.

Senate Armed Services Committee Chairman Carl Levin said the new language should meet the White House's concerns, though he stopped just short of saying that the White House accepted the new wording.

"I just can't imagine that the president would veto this bill," Levin said at a news briefing Monday evening. "I very strongly believe this should satisfy the administration and hope it will."

"We had numerous meetings with the administration," the committee's ranking Republican, Senator John McCain of Arizona said. "We feel that we were able to satisfy most of what their concerns are."

"I think we took significant steps to address the administration's concerns in those areas," the ranking Democrat on the House Armed Services Committee, Rep. Adam Smith of California, said.

A White House spokesman had no immediate comment on the Congressional deal. The conferees said they plan to bring the bill to the House floor for a vote as soon as Wednesday afternoon and to the Senate soon thereafter.

The conference-approved bill contains new language seeking to make clear that the FBI's authority to question and detain suspected terrorists is not impacted by the bill's requirement that foreigners who attack the U.S. be placed in military custody absent a waiver. The conferenced legislation moves that waiver authority from the Secretary of Defense to the president.

"There is two or three provisions to make it 100 percent clear that there is not interference with the FBI or other civilian law enforcement," Levin said.

McCain suggested that if Obama does veto the bill, only election-related political considerations could explain such a move.

"I hope that on this issue, which is of some transcendental importance to a lot of Americans, that the administration will not be swayed by polticial considerations and election year considerations coming because any rational observance of this legislation clearly is not anything that could damage America's national security," McCain said.

House Armed Services Committee Chairman Buck McKeon (R-Calif.) suggested at the briefing that language in the final bill reiterating detention authority under the Authorization for Use of Military Force passed immediately after Sept. 11, 2001 attacks would make it easier for the military to act against individuals in Al Qaeda spinoff groups, such as Al Qaeda of the Arabian Peninsula.

"Both sides said it was important to get this up to date," McKeon said. "We know that the Defense Department has asked for help to modernize this because conditions have changed in 10 years. So it's very important to get this done."

While some commentators have suggested updating the AUMF language, as recently as October Pentagon General Counsel Jeh Johnson said the administration opposed efforts to redraft or extend the AUMF.

As soon as McKeon made the comment about updating the AUMF, Levin jumped in to insist the language in the bill does not affect existing law.

"To be very precise, we are not changing existing law on who is or is not an enemy combatant," the Senate chairman said. "We're not defining who is an enemy combatant, we're leaving that to the courts or to the executive branch."

The conference committee also dropped a House provision that banned same-sex marriages by military chaplains. The final bill contains language affirming the right of chaplains to decline to officiate at such weddings.

In October, McKeon said he would sooner have no defense bill than compromise on the tougher, House version of the detainee provisions or on the same-sex marriage ban. Both were substantially watered down in the final conference report which he endorsed Monday.

UPDATE: Groups critical of the bill have scheduled a teleconference Tuesday to discuss the latest changes. One organization issued a statement late Monday calling the changes to the legislation insufficient.

"The latest version of the defense authorization bill does nothing to address the bill's core problems - legislated indefinite detention without charge and the militarization of law enforcement," said Andrea Prasow of Human Rights Watch, "With these fundamental problems remaining, the administration should make good on its veto threat."