Daily Israel Report

Administration Objects but NDAA Passes with Bipartisan Support

The senate has effectively stated that it views terror as a war and not merely a criminal act to be handled by civil law enforcement.
By Aryeh ben Hayim
First Publish: 12/6/2011, 9:46 PM

The National Defense Authorization Act passed the US Senate by a vote of 93 to 7 on Tuesday, and now must be reconciled with a similar House bill. What has attracted attention the most attention - and alarm - is the provision for military rather than civilian custody of certain Al Qaeda suspects, including those detained inside the United States.

President Obama has threatened to veto the legislation, although the margin by which it passed required bipartisan support as the Democrats hold a majority in the Senate. Liberal Michigan Democrat Carl Levin, the Chairman of the Senate Armed Services Committee, was particularly influential in steering the bill through alongside ranking Republican Senator John McCain.

Opponents of the legislation believe it will replace civil liberties with martial law. Other critics claim that it is problematic on practical grounds because civilian criminal prosecution has proven more reliable than military custody in handling terror suspects inside the United States. Additionally, the legislation could hamper intelligence sharing and extradition proceedings with other countries, notably countries in the European Union that would balk at extraditing suspects who would not receive due process and could be held indefinitely without trial.

Proponents of the bill believe that the war on terror should be seen in a military prism under the laws of war rather than under the laws of criminal procedure. Republican Senator Lindsey Graham told National Public Radio: "I'm just saying to any American citizen: if you want to help al-Qaeda, you do so at your own peril. You can get killed in the process. You can get detained indefinitely. And when you're being questioned and you say to the interrogator, I want my lawyer, the interrogator will say, you don't have a right to a lawyer because you're a military threat."

Legislators have wrestled with the problem of how to extract information from captured terrorists. They were especially incensed when the Nigerian "underwear bomber" who nearly blew up a plane flying from London to Detroit was quickly able to invoke his civil liberties and shut down his interrogation. Senator Kit Bond argued the law was needed to provide government with the "flexibility and authority to detain captured terrorists, legally question them to gain intelligence, and, if necessary, prosecute them without compromising our intelligence sources and methods."

The American law is more drastic than Israel's standing emergency laws, which date back to the British Mandate era. The American law allows detention of Americans within the United States and makes no mention of judicial review of the process. Under Israeli law, within the boundaries of the state of Israel a person can be administratively detained only by order of the Defense Minister. It must be ratified by a judge within 48 hours, after which the detained person's status must be reviewed by a judge once every 3 months. A district judge can set aside the detention if he is persuaded that there are no security grounds and such cases can be directly appealed to the Israeli Supreme Court.