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Administration Announces Military Custody Rules Under NDAA

The President signed the National Defense Authorization Act on the last day of 2011. Two months later, his White House announced an implementation strategy in a statement from Tommy Vietor. In essence, the President will ignore a few of the provisions in the NDAA, using the escape hatches written into the bill to evade the mandates on military custody for terrorist suspects:

One section of particular concern in the bill was Section 1022, which would seek to require military custody for a narrow category of non-citizen detainees who are “captured in the course of hostilities authorized by the Authorization for Use of Military Force.” Initially conceived of as a requirement for a group of suspected terrorists to be held in military detention, the Administration worked with Congress to obtain broader authority to interpret and implement the military custody requirement, and to waive its application in individual cases or categories of cases, to better preserve both our national security and our values.

In essence, these procedures seek to preserve the framework for the detention, interrogation, and trial of suspected terrorists that this Administration developed, and has executed with great success for more than three years. Specifically, the procedures are intended to ensure that the executive branch can continue to utilize all elements of national power — including military, intelligence, law enforcement, diplomatic, and economic tools – to effectively confront the threat posed by al-Qa’ida and its associated forces within the framework of our legal authorities, and will retain the flexibility to determine how best to apply those tools to the unique facts and circumstances we face in confronting this diverse and evolving threat.

There’s a fact sheet available here that Jeralyn Merritt breaks down. You can even read the full directive from the Department of Justice.

DoJ takes the Section 1022 procedures to only apply in cases where the individuals are “non-U.S. citizens who are closely linked to al-Qa’ida and have participated in planning or carrying out an attack or attempted attack against the United States or our coalition partners.” And it sets a review process for determining whether an individual meets those requirements. In the meantime, law enforcement is supposed to follow the same rules it always has when dealing with federal criminal suspects. Only if the individual is found to be a “covered person” under the statute would he or she be remanded to military custody. In a number of cases, military custody will simply be waived (for instance, if the suspect is arrested by local authorities, or if the government thinks the suspect might not cooperate with an investigation if placed under military custody). And there’s this:

Finally, even in the event that an individual is transferred to military custody, the statute expressly recognizes that there are a number of different options for the individual’s ultimate disposition. These options may include transfer back to law enforcement custody for trial in federal court; continued military detention until the end of the conflict with al-Qa’ida; transfer for trial by a military commission, or transfer to a foreign government. Therefore, as specifically envisioned by the NDAA, an individual required to be held in military custody under Section 1022 may ultimately be returned to law enforcement custody for criminal trial.

The White House is definitely trying hard to express that the NDAA is no big deal, and that they retain all the prerogatives for dealing with terrorist suspects. As Adam Serwer notes, that makes the custody requirements in the law mostly symbolic. However:

There are still a few caveats, however, chief among them that the president’s directive leaves open the possiblity that non-citizen terrorism suspects apprehended on American soil could still face indefinite detention without trial, and that the bill itself establishes the expectation that the military has a role in domestic counterterrorism. While Congress itself watered down the detention provisions to allow the president this kind of leeway, should another underwear-bomber-type situation occur, it would be a simple matter for legislators to claim that Obama was flouting the law should he decide aganst placing the suspect in military custody.

In addition, the bigger issue is the codification of mandatory military custody and indefinite detention. Future Presidents may not construe the law the same way as this one.

The Senate Judiciary Committee will mark up a bill today re-emphasizing that American citizens cannot be subject to indefinite military detention, despite the Administration’s assurances. And outside of Congress, a group of activists have sued the US government to block implementation of the NDAA. The law is set to go into effect tomorrow.

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David Dayen

David Dayen