Rep. Adam Smith of Washington state and Sen. Mark Udall of Colorado introduced legislation that would repeal provisions of the defense bill that President Barack Obama signed into law Dec. 31 that would deny suspected terrorists, including U.S. citizens seized within the nation's borders, the right to trial and subject them to indefinite detention. It also would reverse the mandatory military custody for foreign terrorist suspects linked to al Qaeda or its affiliates and involved in plotting or attacking the United States.
"While some claim we should shy away using a court system that has been a model for the world for more than 200 years, we believe that we should embrace it," the lawmakers said in a statement. "We should not fear our Constitution. We should embrace it."
The congressional effort last year to write the provisions in the defense bill divided lawmakers, drew the opposition of the White House and senior national security officials and angered civil liberties groups. Some conservative Republicans and Democrats warned that the bill would allow the government to hold U.S. citizens indefinitely. After months of wrangling over how to handle terrorist suspects while protecting basic rights, Congress eventually settled for compromise language saying only that nothing in the bill would affect existing criminal enforcement and national security authorities of the FBI.
Last month, the Obama administration outlined new rules on when the FBI, rather than the military, could be allowed to retain custody of al Qaeda terrorism suspects who aren't U.S. citizens but are arrested by federal law enforcement officers. The new procedures spelled out seven circumstances in which the president could place a suspect in FBI, rather than military, custody, including a waiver when it could impede counterterrorism cooperation with another government or when it could interfere with efforts to secure an individual's cooperation or confession.
Smith, the senior Democrat on the House Armed Services Committee, said they decided to reopen the divisive issue to provide some clarity and "reassert the primacy of our civil justice system." He pointed out that U.S. courts have resolved more than 400 cases involving terrorist suspects, including the underwear bomber Umar Farouk Abdulmutallab. He was sentenced last month to life in prison after admitting he attempted to blow up an international flight with a bomb in his underwear as the plane approached Detroit on Christmas 2009.
Udall, a member of the Senate committees on armed services and intelligence, said that "even in our darkest hours, we should ensure that our Constitution prevails."
The legislation drew immediate opposition and faces a steep climb in an election year.
A spokesman for House Armed Services Committee Chairman Howard "Buck" McKeon, R-Calif., said the bill goes too far.
It "would actually require that foreign terrorists like the underwear bomber be held by civilian authorities and tried in civilian courts as common criminals," McKeon spokesman Claude Chafin said.
"Those who attack us are not mere criminals, but terrorists, often carrying vital information about future attacks that our military can exploit to keep us safe. They should be treated as such," Chafin said.
Smith said he had 30 co-sponsors and would try to make the bill part of this year's defense legislation.