WH to Give Itself Maximum Flexibility on Terrorist Custody Law

Feb 28, 2012 6:38pm

The White House announced Tuesday night that the Obama administration intends to interpret with rather wide latitude a controversial section  of the National Defense Authorization Act that requires law enforcement to place in military custody any foreign al Qaeda suspects caught on U.S. soil.

Based on the list of reasons for which the administration can grant itself waivers, thus keeping the alleged terrorist in law enforcement – and not Pentagon — hands, the White House is choosing to give itself maximum flexibility in dealing with any future Christmas Day bombers. Read the president’s complete directive here.

The interpretation states that “until an individual is formally designated a covered person, federal law enforcement agencies should follow their standard practices. The procedures also make clear that, even after an individual is determined to be a covered person, a transfer to military custody may only occur once it is clear that it will not disrupt ongoing law enforcement and intelligence operations.” For more details on the new procedures implemented, read the complete fact sheet here.

The waivers can be granted for a broad array of reasons, including if placing the suspect in military custody will impede counterterrorism cooperation or could interfere with efforts to secure an individual’s cooperation or confession. A waiver can also be granted if putting the suspect in military custody could impact a foreign government being willing to extradite or transfer suspects to the U.S.; if the suspect is a lawful permanent resident in the U.S. arrested for conduct taking place in this country; or if the transfer to military custody would interfere with efforts to conduct joint trials with co-defendants about whom the decision has already been made to keep them in law enforcement custody or who are ineligible for military custody.

Moreover, a lot of people will have to sign off on putting a suspect in military custody – the attorney general makes the final determination but the secretary of state, secretary of defense, secretary of Homeland Security, chairman of the Joint Chiefs of Staff, and director of National Intelligence all have to sign off as well.   This action has no bearing on the controversial part of the NDAA that reaffirms the government’s ability to indefinitely detain U.S. citizens suspected of being involved in a terrorist plot, a power courts have ruled was given to the federal government under the Authorization for Use of Military Force against al Qaeda in 2001.

-Jake Tapper

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