Civil liberties groups contend that language is pretty much useless since the set up of the bill makes military custody the norm.
"There's nothing in here that's taking away the FBI's statutory authority," Christopher Anders of the ACLU said in a conference call with reporters Tuesday. "What's happening instead is that person, the actual person, is being put into military custody... so this new provision is pretty hollow in that they are allowed to continue their investigation but they still don't have control of the person."
Heather Hurlburt, executive director of the National Security Network, called the procedure for handling terror suspects under the bill "ridiculous."
"Imagine this from a law enforcement perspective... take the underwear bomber. That person was removed from the plane by [DHS]. Now imagine they have the person. There's no military detention facility in Michigan, so what are they supposed to do, hand him over to the National Guard? And then they have to call back to Washington, it's Christmas Eve, any administration then has to go thought whatever the procedure is to get a waiver, they have to decide politically whether it's worth getting a waiver," Hurlburt explained.
"One of clear intentions, frankly, of this whole process is to raise the political cost of using the civilian judiciary system," Hurlburt said. The revised language out of the conference report gives the president (rather than the secretary of defense) the ability to wave military custody of suspects on an individual basis.
"It's unclear. The people who have to implement it don't think it's clear. This is inviting years of litigation," Hurlburt said.