A defense spending bill that passed both houses of Congress overwhelmingly and is set to be signed by President Barack Obama as early as this week could make it easier for the government to transfer American terrorist suspects to foreign regimes and security forces.
The National Defense Authorization Act (PDF) contains a section that says the president has the power to transfer suspected members and supporters of Al Qaeda, the Taliban, or "associated" groups "to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity."
That means if the president determines you're a member or supporter of Al Qaeda or "associated forces," he could order you to be handed over to the Saudis, the Egyptians, the Yemenis ("any other foreign country"), any of their respective security forces, or even the United Nations ("any other foreign entity").
An amendment sponsored by Sen. Dianne Feinstein (D-Calif.) says the relevant section of the NDAA doesn't change "existing law" with regards to the detention of US citizens, permanent legal residents, and terrorist suspects captured in the United States. The problem is that there's a debate over what "existing law" is.
Civil liberties advocates and some members of Congress argue that the government can only indefinitely detain an American if he is, as Feinstein explained on the Senate floor, "taken an active part in hostilities against the United States and is captured outside the United States in an area of 'active combat operations,' such as the battlefields of Afghanistan."
But many legal experts, members of Congress, and both the Bush and Obama administrations have argued that existing law allows the US to indefinitely detain all people, including American citizens, who the president determines are part of or "substantially supported" Al Qaeda, the Taliban, or associated forces.