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W.H. on National Defense Authorization Act: No military detention for citizens captured here

American citizens who are captured in the United States and suspected of joining or aiding Al Qaeda should not be placed in military detention or sent to military trial, a top White House official said Friday.

In an interview with NPR, Deputy National Security Adviser John Brennan said using the law of war, rather than civilian criminal courts, to detain a U.S. citizen captured in the U.S. would undermine the rights of Americans and the ability of the U.S. to urge other countries to respect the rule of law.

"It’s very troubling, in terms of picking up somebody here on U.S. soil," Brennan told NPR. "When I go overseas and I talk to other governments, talking to them about making sure that they handle their cases appropriately and not throw people into military detention, not throw them into a military court, hold them indefinitely without due process of law. This is what has caused a lot of problems overseas. If we go down this road, we’re sending a very bad signal. We need to demonstrate, through the strength of our judicial system, that we can handle these issues, particularly on our soil, in a way that’s consistent to our commitment to the rule of law, but also works very effectively in terms of getting intelligence we need to keep this country safe."

Brennan's comments came during a discussion about the pending National Defense Authorization Act, which President Barack Obama has threatened to veto because of provisions seeking to regulate the handling of detainees and to make military custody the default for many terrorism suspects. The bill also triggered a debate in the Senate about whether current law allows Americans captured in the U.S. to be detained indefinitely.

In a Senate debate last week, Sen. Dianne Feinstein (D-Calif.) and others argued that such detention is not permitted by current law and perhaps even forbidden by the Constitution. She also proposed an amendment to explicitly prohibit military detention of U.S. citizens. That amendment failed on a 45-55 vote, largely along party lines but with some interesting defectors. Sens. Rand Paul (R-Ky.) and Mark Kirk (R-Ill.) lined up against detention of U.S. citizens captured domestically, while Senate Armed Services Committee Chairman Carl Levin (D-Mich.) and ten other Democrats join with most Republicans to oppose a ban on such detentions.

In what amounted to a truce, both sides later agreed to another Feinstein amendment stipulating that the NDAA should have no impact on existing law, about which they do not agree. That amendment passed, 99-1.

Brennan's latest remarks are noteworthy because they go beyond the Statement of Administration Policy the White House issued last month threatening a veto of the NDAA. In addition, just a few hours before Brennan spoke, White House Press Secretary Jay Carney repeatedly refused to answer essentially the same question during a regular press briefing.

The White House's stance on U.S. citizen detention was hailed by civil liberties and human rights groups and denounced by proponents of greater use of law-of-war detention, such as Sens. Kelly Ayotte (R-N.H.) and Lindsey Graham (R-S.C.)

"The statement by Brennan puts the White House not only on the right side of the rule of law, but also on the right side of history on this issue," said Chris Anders of the American Civil Liberties Union. "The White House is making clear the historical importance of not using the military to arrest and imprison people at home, and certainly not deploying American soldiers to indefinitely imprison American citizens without charge or trial. But unless Congress comes to its senses, the President will have no choice but to veto an NDAA that authorizes exactly what Brennan said the White House opposes."

"It's somewhat astounding that the administration wants to change law-of-war detention authority, the law as it's ben since World War II in the in re Quirin case," Ayotte said in an interview with POLITICO Saturday afternoon. "To me it seems just absurd if you think about it: the administration takes the position, which I agree with, that it can kill American citizens by drone overseas without any due process, but we can't detain them with military detention when they join Al Qaeda and are trying to kill Americans" in the U.S., she said.

Ayotte said the administration's position was partcularly misguided because of "rising homegrown radicalism" on behalf of Al Qaeda. She conceded that Congress has decided that Americans should not be tried by military commission, but she said military detention is still beneficial because it would allow the U.S. government to collect more intelligence, something the administration disputes.

It's unclear why the White House did not clarify their view on this point until now, rather than during the heated debate over Feinstein's amendment. It's at least possible that Jon Stewart's attention to the issue (here & here) drove them to take a stand.

While Brennan put a finer point on it Friday, the Obama administration's practice has been not to use military detention for anyone caught in the United States, regardless of citizenship. The Bush administration did so in several cases after Sept. 11. One that lingered after Obama's inauguration was that of Ali al-Marri, a Qatari man, non-U.S. citizen and alleged Al Qaeda sleeper agent held for seven years at a Navy brig in S. Carolina. In April 2009, the Justice Department cut a criminal plea deal with al-Marri and transferred him to civilian court in Illinois. No terror suspect, foreigner or American, has been held in military custody in the U.S. since that time. Al-Marri eventually received an eight-year prison sentence.

Brennan did make somewhat similar remarks in a speech at Harvard in September, though he framed the issue somewhat differently and didn't mention some of the downsides he laid out Friday. He also sounded more open Friday to military detention for Americans abroad than he did a couple of months back.

"When it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system. There is bipartisan agreement that U.S. citizens should not be tried by military commission. Since 2001, two U.S. citizens were held in military custody, and after years of controversy and extensive litigation, one was released; the other was prosecuted in federal court. Even as the number of U.S. citizens arrested for terrorist-related activity has increased, our civilian courts have proven they are more than up to the job," Brennan said then. (h/t Ben Wittes)

Brennan suggested at a couple of points in the NPR interview that U.S. citizens should be entitled to some different treatment. "If there are U.S. citizens who engaged in hostilities on the battlefield abroad, we want to make sure that...our military is able to deal with them appropriately. But there also are certain considerations that we need to account for in terms of U.S. citizenship," he said.

The NDAA is still in conference and senators are under pressure to finish it this coming week. Funding-related issues seem to be getting ironed out, but it's unclear what if any compromise is in the works on the detainee issue.

UPDATE: This post has been updated with comments from Ayotte and Anders as well as additional comments from Brennan. It has also been tweaked a few times to accomodate the new publishing system POLITICO rolled out Saturday morning. (The system also swallowed some of the changes for a time, including the comments from Ayotte and the ACLU. Apologies.)