Reps. Adam Smith (left) and Justin Amash led a failed amendment push on detainees. Defense bill passes House, faces veto

The House on Friday overwhelmingly approved a $642 billion bill that sets defense policy for the Pentagon — and faces a veto threat from the Obama administration.

The fiscal 2013 defense authorization bill passed the Republican-led House 299-120. Sixteen Republicans voted against the bill, while 77 Democrats voted for it. The Senate will start marking up its own version next week.


“This year’s defense authorization bill helps meet my priorities as chairman: resolve sequestration, restore strategy and sanity to the defense budget, and rebuild our military after a decade of war,” House Armed Services Committee Chairman Buck McKeon (R-Calif.) said in a statement after the bill’s passage.

The lengthy debate over the nation’s military and counterterrorism policies culminated when an unlikely alliance of libertarian Republicans and liberal Democrats confronted their House colleagues early Friday morning over the highly contentious question of whether the government has the power to indefinitely detain suspected terrorists captured on U.S. soil.

Ultimately, though, the effort came up short. Their amendment was voted down, 238 to 182.

This strange-bedfellows coalition had rallied behind a proposal that would have made it clear that suspected terrorists detained in the United States must be charged with crimes and tried in federal courts.

Leading the charge were Reps. Adam Smith, the ranking Democrat on the House Armed Services Committee, and Justin Amash, a tea party-backed Republican from Michigan. Their amendment was considered on the House floor as lawmakers haggled over the details of this year’s defense authorization bill.

And with debate stretching past 1:30 a.m. Friday, House members called it a night and put off the vote on the Smith-Amash amendment until after 9:20 a.m.

“This is an extraordinary amount of power to give the president – to give the government the power to take away people’s rights and to lock them up without so much as a court hearing,” Smith said during an impassioned plea for support.

“What we’ve learned in the last 10 years is one power [the president] does not need is the power to indefinitely detain or place in military custody people in the United States,” Smith added. “Our justice system works.”

It was clear from the start, though, that the Smith-Amash amendment faced an uphill battle. A slew of Republicans railed against the measure, saying it would provide additional rights to foreign terrorists.

“This amendment turns the global war on terror into a CSI investigation,” said Rep. Jeff Landry (R-La.). “Our law enforcement system in this country is by nature an after-the-fact deterrent. What deters a person from driving a plane into a building?”

Rep. Allen West (R-Fla.) also chimed in. “We have to understand that we are in a war,” he said. “We are not in a police action.”

The Council on American-Islamic Relations had endorsed the Smith-Amash amendment, noted West, who suggested the Muslim advocacy group is working with foreign terrorists, calling it a “co-conspirator” against the United States.

Fighting back, Smith blasted his opponents’ arguments as ludicrous and framed the debate as a battle to preserve the rights enshrined the in the Constitution. “I would point out,” he said, “that our justice system has arrested countless terrorists before they had time to act by investigating their plots and stopping them.”

The other side wasn’t swayed, and many House Republicans backed a competing measure, sponsored by Landry and Reps. Louie Gohmert (R-Texas) and Scott Rigell (R-Va.). The amendment, which would prohibit the government from denying U.S. citizens their constitutional rights, was approved by the House, 243 to 173.

“It ensures that every American has access to our courts and ensures that they will not be indefinitely detained,” Landry said of the proposal. “Unfortunately, some of the members believe that our soil, here, is not a battlefield.”

Smith and Amash denounced the competing amendment, portraying it as a smokescreen meant to provide political cover to members who claim to care about civil liberties. “The first part of the amendment does nothing,” Amash told his colleagues. “In other words, if you have constitutional rights, then you have constitutional rights.”

In the week leading up to the House debate, both sides had traded statements and counter-statements and rolled out a series of big-name endorsements. Former Attorneys General Edwin Meese and Michael Mukasey, along with former Homeland Security Secretary Michael Chertoff, came out against the Smith-Amash amendment, signing a letter saying it would incentivize terrorists to attack the United States from within.

Michael Hayden, a former director of the Central Intelligence Agency and the National Security Agency, also criticized the measure, saying it would impede the president’s ability to prevent terrorist attacks. “It seems to fly in the face of what two presidents and Congress have said, which is that we are at war with terrorists,” Hayden told POLITICO. “The president needs to have the ability to detain them as enemy combatants for intelligence purposes.”

The amendment – one of more than 140 up for consideration – was a follow-up to last year’s showdown over how the Constitution should apply to those who wish to harm the United States. The issue drew heated rhetoric from both sides and a veto threat from the White House.

Administration officials were concerned the detainee provisions in last year’s authorization act could limit the power of the executive branch to decide for itself whether to try suspected terrorists in civilian courts or in military commissions. President Barack Obama ultimately signed the act but issued a statement saying he “will not authorize the indefinite military detention without trial of American citizens.”

Benjamin Wittes, a fellow at the Brookings Institution and an expert on national-security law, said there has been a common misconception over whether or not last year’s authorization act actually allows the president to detain U.S. citizens indefinitely. “The NDAA basically didn’t address the question except to say we’re not answering it,” Wittes told POLITICO. “The best way to understand the current status quo is that it’s an open question that does not address whether or not you can do that.”

Wittes said there have been two cases since the 2001 terrorist attacks on New York and Washington in which the military has detained suspected terrorists captured on U.S. soil. Both cases – one of which involved a U.S. citizen – were eventually turned over to the criminal justice system, he said.

The Smith-Amash amendment, he added, was “basically an effort to clarify that not only does the NDAA not authorize the indefinite detention of citizens, but it actually forbids it.”

A federal judge in New York on Wednesday added a twist to the debate, issuing a temporary injunction that says the detainee provisions in the current defense authorization act are unconstitutional.

A group of activists and writers had sued the government, claiming the provisions caused them to fear being indefinitely detained by the military because of their work.

“This ruling is inconsistent with what other federal courts have held on this issue,” McKeon told POLITICO in a statement after the ruling was announced. “I expect it will be overturned in short order.”

Seung Min Kim contributed to this report.