Representative Howard P. "Buck" McKeon, (R-Calif.), chairman… (Rich Clement / Bloomberg )
The White House said this week that President Obama will sign a controversial $662-billion defense authorization that permits indefinite detention without trial for some terrorism suspects and broadens the authorization for the use of force against people and groups "associated" with Al Qaeda anywhere in the world. It's the wrong choice.
The bill, which passed the House Wednesday and the Senate Thursday, is being advertised as a compromise with the administration, and indeed it includes provisions designed to avoid a veto. But several are vague or confusing. For example, although it requires that foreign suspected Al Qaeda terrorists be placed in military custody, it seems to allow FBI agents to interrogate them. On Wednesday, FBI Director Robert S. Mueller III said that the compromise left "uncertainty as to who has the role and who's going to do what."
The FBI has proved effective in detaining and questioning terrorist suspects, just as the civilian court system has acquitted itself admirably in trying them. Congress' preference for military custody and trial by military commission disregards this proven record of success.
Two other provisions would prevent civilian trials in other ways. One would bar any use of Defense Department funds to transfer inmates at Guantanamo Bay to the United States, even for trial. Another would prohibit spending on the construction of facilities on U.S. soil to house Guantanamo inmates. As a practical matter, this means the remaining prisoners at Guantanamo will be tried by military commissions, which offer more protections than in the past but still fall short of the standards of due process observed by civilian courts.
In the process of reaffirming the post-9/11 Authorization for Use of Military Force, the legislation expands the category of targeted persons to include anyone who "was a part of or substantially supported Al Qaeda, the Taliban or associated forces that are engaged in hostilities against the United States or its coalition partners." Both "substantially supported" and "associated forces" are vague terms that invite abuse. The expiring authorization merely allowed the use of force against those who planned or carried out the Sept. 11 attacks, or harbored such people.
The bill also asserts the right to hold detainees without trial "until the end of the hostilities authorized by the Authorization for Use of Military Force." Given the open-ended nature of the war on terrorism, that can amount to detention without end. Obama has asserted the right to imprison dangerous detainees indefinitely, subject to periodic review. This bill bolsters that claim.
Beginning with his announcement at the start of his term that he intended to close Guantanamo, the president in most cases has recognized that fighting terrorism is compatible with traditional protections for the accused. He should have had the courage of his convictions.