How indefinite detention snuck into Obama's defense bill

How indefinite detention snuck into Obama's defense bill

By Dana Liebelson | The Week – 9 hrs ago

It's now legal to seize suspected terrorists and throw them in jail without charge or trial. Why was this controversial law debated in a secret committee?

In December, President Obama angered politicians of all stripes by signing the National Defense Authorization Act (NDAA), a broad defense bill that included a controversial provision about indefinite detention. Specifically, the provision gave the president expansive power to seize suspected terrorists and keep them in detention without charge or trial, even on U.S. soil. 

According to critics, this part of the bill essentially put the controversial policies of the George W. Bush administration into hard law, shattering Obama's previous promise to stop indefinite detention and adhere to the Geneva Conventions. Stephen Colbert aptly captured the hypocrisy: "President Obama was smacked down by a man with some balls, Commander-in-Chief Obama." 

Obama signed the law despite saying that he had "serious reservations" about the detention provisions. He later backpedaled by issuing waivers that exempted future prisoners from the law, but the political damage was already complete. His supporters were angry, and Republicans had new "flip-flopping" ammunition to use against the president.

Ultimately, this isn't a partisan issue — it's a good government issue.

No matter how you feel about indefinite detention (Mitt Romney has gone on record supporting the provision) — or Obama's U-Turn — this is what should really make you angry: Before this broad defense act reached the president, it was marked up and debated in the Senate behind closed doors. A bill that authorized $662 billion in taxpayer dollars and included a highly controversial national security provision was marked up by a bipartisan 26-member committee with zero transparency. 

Later, there was a public debate and amendments on the floor of the Senate. But that public phase did little to sufficiently alter what began in secret in the committee. 

Would you authorize a stranger to decide every area of your budget — from food to date nights — without taking any input from you? The Senate Armed Services Committee (SASC) shouldn't have this power either. 

The Senate committee claims that it must keep the markup secret to defend the process from undue influence and lobbying, and to protect classified information. That logic is flawed for two reasons. 

First, lobbyists already influence this particular committee. According to the Center for Responsive Politics (CRP), lawyers and lobbyists have contributed over $20 million to individual SASC members during the 2012 election cycle. And to give you an idea of how defense contractor lobbyists change their spending in response to committee participation, look no further than the Joint Strike Fighter (JSF) debacle. According to one analysis, after a congressional caucus on the JSF was formed, the contractors' political action committees gave the average member of the caucus $6,094 — nearly double what they gave representatives not in the caucus.

Second, on the House side, the NDAA is open to the public. The House Armed Services Committee provides webcasts of NDAA markups and posts the bill online at least 24 hours in advance of the committee vote — but can still move to an executive session if classified information is being discussed. Senate committee member Claire McCaskill (D-Mo.) has also argued that only a tiny portion of the legislation deals with classified information.

It simply doesn't make sense to keep the Senate side secret when the House is championing transparency. 

A bipartisan coalition of good government groups, including the Project on Government Oversight, launched a campaign last week to encourage Senate committee members to follow the House's example, and vote to open up the markup. Last year, nine senators voted to open the markup: two Democrats and seven Republicans, including former presidential nominee John McCain. 

McCaskill, a Democrat who has fought to open the full committee negotiations every year she has been a member of the Senate panel, told me: "The American people have the right to know what their leaders are saying and doing as they set the national security priorities for our country, a process that includes mapping out how over half a trillion dollars in taxpayer funds should be allocated." 

Ultimately, this isn't a partisan issue — it's a good government issue. Regardless of what you think of indefinite detention, we can all agree that it's not a provision that should be tossed into a bill lightly. It should have the same careful consideration by the public as any other major piece of legislation. It's time to stop letting our taxpayer dollars get divvied up in the dark.