Senate Declines to Clarify Rights of American Qaeda Suspects Arrested in U.S.
CHARLIE SAVAGE
WASHINGTON — The Senate on Thursday decided to leave unanswered a momentous question about constitutional rights in the war against Al Qaeda: whether government officials have the power to arrest people inside the United States and hold them in military custody indefinitely and without a trial.
After a passionate debate over a detainee-related provision in a major defense bill, the lawmakers decided not to make clearer the current law about the rights of Americans suspected of being terrorists. Instead, they voted 99 to 1 to say the bill does not affect “existing law” about people arrested inside the United States.
“We make clear that whatever the law is, it is unaffected by this language in our bill,” said Senator Carl Levin, a Michigan Democrat who helped shape the detainee-related sections of the bill with Republicans on the Senate Armed Services Committee.
The disputed provision would bolster the authorization enacted by Congress a decade ago to use military force against the perpetrators of the attacks on Sept. 11, 2001. It says the government may imprison suspected members of Al Qaeda or its allies in indefinite military custody.
Because the section includes no exception for suspects arrested domestically, the provision prompted a debate about whether it would change the law by empowering the government, for the first time, to lawfully arrest people inside the United States and hold them indefinitely in military custody, or whether it would change nothing because the government has that power already.
The debate brought new attention to the ambiguous aftermath of one of the most sweeping claims of executive power made by the Bush administration after Sept. 11: that the government can hold citizens without a trial by accusing them of being terrorists.
One of the proponents of making no exceptions for Americans, Senator Lindsey Graham, Republican of South Carolina, said it would be “crazy” to exempt Qaeda suspects who are Americans and are arrested inside the country from battlefield-style detention. He argued that, to stop other attacks, they must be interrogated without the protections of the civilian criminal justice system.
Citizens who are suspected of joining Al Qaeda are opening themselves up “to imprisonment and death,” Mr. Graham said, adding, “And when they say, ‘I want my lawyer,’ you tell them: ‘Shut up. You don’t get a lawyer. You are an enemy combatant, and we are going to talk to you about why you joined Al Qaeda.’ ”
But Senator Mike Lee, Republican of Utah, said citizen terrorism suspects should retain their “fundamental civil liberties” in order to protect the founding principles of the United States.
“I think at a bare minimum, that means we will not allow U.S. military personnel to arrest and indefinitely detain U.S. citizens, regardless of what label we happen to apply to them,” he said.
Before voting to leave current law unchanged, the Senate rejected, 55 to 45, a proposal by Senator Dianne Feinstein, Democrat of California, to instead say that Americans are exempt from detention under the 2001 authorization to use military force.
The uncertainty over the current law added confusion. Some, like Mr. Graham and Mr. Levin, insisted that the Supreme Court had already approved holding Americans as enemy combatants, even people arrested inside the United States. Others, like Senators Feinstein and Richard J. Durbin, Democrat of Illinois, insisted that it had not done so.
Each side pointed to different passages of the Supreme Court’s ruling in a landmark 2004 case. The decision said the Bush administration could hold as an enemy combatant a citizen who had been captured in Afghanistan and was accused of fighting with the Taliban. Mr. Levin noted Justice Sandra Day O’Connor wrote that “there is no bar to this nation’s holding one of its own citizens as an enemy combatant.”
But others noted that Justice O’Connor had also stressed that the ruling was limited to “a United States citizen captured in a foreign combat zone” while active combat there was in progress, a different context from a domestic arrest. (She also wrote, “Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.”)
There were two Bush-era cases of people held as enemy combatants arrested inside the United States, one of them a citizen. Lower courts reached contradictory opinions about whether holding them in indefinite military custody was lawful, and they were transferred to the civilian system before the Supreme Court weighed in.
Still, in 1942, several German saboteurs were captured inside the United States and prosecuted before a military commission. One was a naturalized American citizen. In an opinion written after the men were executed, the Supreme Court held that the process had been legitimate.