Under broadly written categorical waivers carved out by the Obama administration, the military custody requirement will be waived if the suspect's home country objected to military custody; if the individual is a lawful permanent resident arrested in the country or for conduct conducted in the country; when a suspect is originally charged with something other than a terrorism offense; when a person is originally arrested by state or local law enforcement; when a transfer to military custody "could interfere with efforts to secure an individual's cooperation or confession"; or when transferring an individual might interfere with joint trials with other defendants.
President Obama also said that the Attorney General, working with other national security officials, has the ability to issue additional waivers for "categories of conduct, or for categories of individuals, or on an individual case-by-case basis, when doing so is in the interest of national security."
Benjamin Wittes of the Brookings Institute wrote that Obama's procedures had "read this law virtually out of existence."
Sen. Chuck Grassley (R-IA), who supports placing some terrorism suspects into military custody, agreed.
"These procedures make clear that the National Defense Authorization Act expressly exempts U.S. citizens from mandatory military detention, but they also make it so procedurally difficult that effectively, no individual of any nationality will likely ever be transferred to mandatory military custody under section 1022," Grassley said in a prepared statement for a Senate Judiciary Committee hearing on the matter on Wednesday. "Between the bureaucratic requirements and the seven national security waivers, it is clear the provision will be seldom, if ever used on anyone, let alone a U.S. citizen."
Democrats including Sen. Dianne Feinstein (D-CA) have referenced the internment of Japanese Americans during World War II when talking about the dangerous precedent they believe is set if the U.S. were to hold individuals arrested in the country in military custody without bringing charges against them.
Former Bush administration official Stephen Bradbury, who co-authored the so-called "torture memos," testified before a Senate Judiciary Committee that he thought the comparison between the internment of Japanese Americans during World War II and holding suspected terrorists in military custody was inappropriate.
Sen. Al Franken (D-MN) said he was disappointed that Bradbury was a witness at the hearing given his history.
"It's very difficult for me, frankly, to rely on your legal opinion today if the Office of Professional Responsibility questions your objectivity and reasonableness then I think we on the panel should as well," Franken said before adding the OPR report on Bradbury's involvement with the torture memos into the record.