Indefinite Detention of Americans Survives House Vote

WASHINGTON -- The U.S. House of Representatives voted again Thursday to allow the indefinite military detention of Americans, blocking an amendment that would have barred the possibility.

Congress wrote that authority into law in the National Defense Authorization Act two years ago, prompting outrage from civil libertarians on the left and right. President Barack Obama signed the measure, but insisted his administration would never use it.

Supporters of detention argue that the nation needs to be able to arrest and jail suspected terrorists without trial, including Americans on U.S. soil, for as long as there is a war on terror. Their argument won, and the measure was defeated by a vote of 200 to 226.

But opponents, among them the Rep. Adam Smith (D-Wash.), who offered the amendment to end that authority, argued that such detention is a stain on the Constitution that unnecessarily militarizes U.S. law enforcement.

"It is a dangerous step toward executive and military power to allow things like indefinite detention under military control within the U.S.," Smith said. "That's the heart and essence of this issue."

Smith's amendment, which also had Republican sponsors including Reps. Chris Gibson (N.Y.) and Justin Amash (Mich.), would guarantee that anyone arrested in the United States gets a trial.

Republican opponents argued that such a move would just invite terrorists to come to the United States, citing the recent Boston bombings and the consulate attacks in Benghazi, Libya, as evidence that terrorists were determined to harm the U.S. They said that applying the Constitution on U.S. soil amounted to a free pass to people bent on trying to destroy the country.

Rep. Tom Cotton (R-Ark.), compared ending indefinite detention to giving someone a free pass in a game of hide-and-seek.

"There was a phrase in that game called 'olly olly oxen free' -- meant you could come out, you were safe, you no longer had to hide," Cotton argued. "This amendment is the olly olly oxen free amendment of the war on terrorism. It invites Al Qaeda and associated forces to send terrorists to the Untied States and recruit terrorists on U.S. soil."

Smith was not impressed by the argument, noting that more than 400 terrorists have been captured, tried and convicted in the United States.

"No one who we have captured in the U.S. as a terrorist have we failed to convict," said Smith, noting the 2009 arrest and prosecution of Umar Farouk Abdulmutallab, the "underwear bomber." "Let's trust the Constitution. The Constitution doesn't threaten us. The Constitution protects us."

Republican Judiciary Committee Chairman Bob Goodlatte (Va.) offered a substitute amendment that barely passed -- 214 to 211 -- to affirm the habeus corpus rights of U.S. suspects to be presented to a judge, but Smith and others said it did little. Indeed, the Supreme Court has upheld the rights of all terrorism suspects to be presented to a judge, and passing a measure that would limit habeus to Americans would actually limit the right, said Rep. Jerry Nadler (D-N.Y.).

"The notion that the United States should conduct itself according to the Constitution and the law of war should not be controversial," said Nadler.

Another measure that passed on a voice vote was a requirement that the administration report to Congress if Americans do get held by the military. But Smith said neither of those measures did much.

"The fundamental question is, do you believe that the president should have the power to indefinitely detain people who are captured in the U.S. without normal due proess of law?" Smith said. "The rest of this just sort of moves it around on the edges but very clearly leaves that power with the president -- a power that I don't think he should have."