Senate ready for showdown with Obama over bill with detainee language

The Senate voted to end debate Wednesday on a defense spending bill, setting the stage for a showdown between Congress and the White House over the bill’s controversial provisions for detaining and prosecuting terror suspects. 

The White House has threatened to veto the legislation because of language that mandates military custody of terror suspects, but Wednesday’s 88-12 cloture vote signals that the bill — which could pass as early as Thursday — will likely have the detainee provisions included in the chamber’s final legislation.

“If [President Obama] were to veto this bill, it would be saying that giving rights to terrorists is more important than passing the defense authorization, which has many other important provisions,” Sen. Kelly AyotteKelly AyotteJuan Williams: McConnell won big by blocking Obama Battle brews over Trump’s foreign policy Battle for the Senate: Top of ticket dominates MORE (R-N.H.) told The Hill.

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The White House is standing by its veto threat, a White House spokesman said in an email to The Hill Wednesday. 

While the Senate bill still must go through conference committee, the current legislation would force the White House to decide whether to follow through on its veto threat. 

Since he took office, President Obama has fought with Congress about how to detain and prosecute terror suspects, beginning with the president’s desire to close Guantánamo Bay. 

But the defense spending bill has passed for 50 years straight. The White House would be left open to charges it is playing politics with the nation’s security if Obama were to veto what is considered must-pass legislation.

Ayotte said it would be a “big mistake” for Obama to veto it.

The Senate on Tuesday rejected, by a vote of 38-60, an attempt from Sen. Mark UdallMark UdallGardner's chief of staff tapped for Senate GOP campaign director The untold stories of the 2016 battle for the Senate Colorado GOP Senate race to unseat Dem incumbent is wide open MORE (D-Colo.), an Armed Services committee member, to strip the detainee provisions from the bill. All but two Republicans voted against the amendment, and 16 Democrats joined them to help defeat it.

The fight over detainees heated up just before Thanksgiving when Senate Armed Services Committee Chairman Carl LevinCarl Levin'Nuclear option' for Supreme Court nominees will damage Senate McCain's Supreme Court strategy leads to nuclear Senate The Fed and a return to banking simplicity MORE (D-Mich.) and ranking member Sen. John McCainJohn McCainSenate: Act now to save Ukraine A Cabinet position for Petraeus; disciplinary actions for Broadwell after affair Meet Trump’s ‘mad dog’ for the Pentagon MORE (R-Ariz.) brokered a compromise on the detainee language. 

The defense bill mandates military custody for terror suspects while granting the executive branch a waiver to prosecute terror suspects in civilian courts.

The Obama administration says this is an unacceptable burden for law enforcement counterterrorism efforts, and Defense Secretary Leon Panetta, Director of National Intelligence James Clapper and FBI Director Robert Mueller have all written letters to senators expressing their opposition. 

Intelligence Committee Chairwoman Dianne FeinsteinDianne FeinsteinThis Week in Cybersecurity: Dems press for information on Russian hacks Overnight Defense: Armed Services chairman's hopes for Trump | Senators seek to change Saudi 9/11 bill | Palin reportedly considered for VA chief Lawmakers praise defense bill's National Guard bonus fix MORE (D-Calif.) and Judiciary Committee Chairman Patrick LeahyPatrick LeahyPassing US-Canada preclearance would improve security and economy GOP wants to move fast on Sessions Senate Dems pan talk of short-term spending bill MORE (D-Vt.) have also opposed Levin and McCain’s compromise, sparking an open disagreement among Democratic committee chairmen.

Udall, Feinstein and Leahy, who voted for cloture, were still hoping they could change the detainee provisions in the bill through amendments before it reached a final vote. 

None of the senators were tipping their hands as to whether they would support the final bill with the detention rules still included.

Feinstein offered two amendments that would ban indefinite detention of American citizens and provide more flexibility for counterterrorism investigations.

“I don’t know whether we can win this or not, but I think it’s important we try,” Feinstein said on the floor Wednesday. “I have no doubt this is going to be litigated.”

As the Senate prepared to vote on dozens of amendments Wednesday, the most contentious debate focused on whether American citizens could be held indefinitely in military custody, a provision that has united some Democrats with libertarian Sen. Rand PaulRand PaulGOP rep: Trump has 'extra-constitutional' view of presidency The ignored question: What does the future Republican Party look like? Rand Paul skeptical about Romney as secretary of State MORE (R-Ky.) in opposition.

Udall warned that holding citizens in military custody indefinitely “cuts directly against principles we hold dear: innocent until proven guilty.”

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Sen. Lindsey GrahamLindsey GrahamA Cabinet position for Petraeus; disciplinary actions for Broadwell after affair Pentagon should have a civilian chief to give peace a chance Lawmakers eye early exit from Washington MORE (R-S.C.) argued that al Qaeda members are enemy combatants and should be held and prosecuted by the military. He and fellow Republicans have been critical of reading terror suspects Miranda rights.

“When they say, ‘I want a lawyer,’ you tell them, ‘Shut up,’ ” Graham said. “ ‘You don’t get a lawyer. You’re an enemy combatant, and we’re going to talk to you about why you joined al Qaeda.’ ”

The administration’s statement of its policy said that military custody inside the U.S. “would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

If the Senate bill passes, it would still need to go through conference with the House legislation, which contains some similar provisions on terror suspects. The House bill doesn’t include the Senate’s mandatory military detention, but House Armed Services Committee Chairman Buck McKeon (R-Calif.) has introduced similar stand-alone legislation, making him an unlikely candidate to remove the detainee language in conference.