From a Justice Department official, here's a breakdown of the problems they've got with the bill as written:
Section 1032 of the Senate's National Defense Authorization Act passed last night would mandate military detention of any non-U.S. person who is a member or part of al Qaeda or an associated force and has planned or carried out an attack or attempted attack against the United States or its coalition partners. Only the Secretary of Defense, in consultation with the Secretary of State and Director of National Intelligence, could waive this requirement--and only upon a written certification to Congress that a waiver is in the national security interest of the United States. This provision would apply equally to individuals apprehended in the United States and those apprehended abroad.
Section 1032 unduly constrains the President's authority to investigate and stop terrorist attacks, and will ultimately harm national security. Military custody of captured terrorists makes sense in some cases, and the President already has authority under the 2001 Authorization for Use of Military Force (AUMF) to authorize the military to take custody of individuals who are part of al Qaeda, the Taliban, and associated forces. But taking a tool that is valuable in some situations and requiring its use in all cases is bad policy. It reduces our options for investigating and effectively responding to terrorist threats, advertises to our enemy exactly how we will respond to each new capture, and creates major operational hurdles.
The criminal justice system has been used effectively in hundreds of terrorism cases, including many involving al Qaeda operatives apprehended in the United States. Time and time again it has helped us disrupt terrorist plots, put terrorists in prison, and gather intelligence from terrorists through interrogation and recruitment of terrorists as cooperators. Terrorism suspects in the criminal justice system have provided critical information on the location of al Qaeda training camps; al Qaeda weapons programs and explosives training; residential locations of senior al Qaeda figures; the identities of operatives involved in past and planned attacks; and plots to attack U.S. targets. The list of individuals associated with al Qaeda who have been successfully prosecuted and convicted in federal court and are now serving lengthy prison terms is long and includes such individuals as Ramzi Yousef, Richard Reid, the East Africa Embassy bombers, Zacaraias Moussaoui, Oussama Kassir, Ahmed Omar Abu Ali, Iyman Faris, Najubullah Zazi and others involved in the 2009 New York subway plot, Faisal Shahzad, and many others. Many of these individuals provided us with important intelligence that has helped protect our national security. In light of this highly successful record, there is no factual basis for section 1032's statutory presumption that in all cases our military, rather than our law enforcement and intelligence professionals, should take custody of al Qaeda operatives. Rather, maintaining flexibility to use our law enforcement authorities, which have been substantially strengthened and restructured since September 11, 2001 precisely to make them more effective at fighting terrorism, is critical to our national security.
Section 1032 is particularly harmful to U.S. national security interests when it is applied to individuals apprehended in the United States.
- Every single suspected terrorist captured on American soil--before and after the September 11th attacks--has first been taken into custody by law enforcement, not the United States military. There have been only two cases in recent history (Jose Padilla and Ali Al-Marri) in which suspected terrorists were subsequently transferred to military custody, and both of these cases spawned extensive litigation and raised major statutory and constitutional questions in our courts concerning the legality of the government's actions. In both cases, the decision was made to return the individuals to the criminal justice system, where they were successfully prosecuted. The proposed legislation would make the exceptional and highly controversial practice of military custody the rule in many terrorism cases in the United States, with severe operational consequences.
- Civilian law enforcement agents--not the military--will continue to be the first responders in the event of a domestic terrorist attack or attempted attack on U.S. soil because our military does not patrol our streets. When suspected terrorists are captured in the United States, law enforcement officials focus immediately on questioning designed to obtain information about ongoing attacks or plots, the location and nature of potential weapons, and associates of the captured individual who may still be at large. They can - and do - conduct such questioning without Miranda warnings where there is an immediate concern for public safety.
- Under this bill, agents would be required to stop interrogations and turn an individual over to military custody if the individual is determined to be a member of al Qaeda or an associated force and to have participated in planning or carrying out an attack or attempted attack against the United States. This requirement would apply even if the individual was cooperating with law enforcement and providing critical and time-sensitive intelligence. Moreover, there very likely will be cases in which operational needs require the government to use an arrested terrorist proactively as a cooperating source to help us obtain information about other terrorists still at large or to help us arrest and prosecute others still at large. These efforts by our national security professionals could be stymied by the requirement that the arrested terrorist be placed in military custody.
Proposed waiver presents new hurdles and operational problems for front-line counter-terrorism agents during their investigations
- To be sure, the bill contains a waiver provision under which the Secretary of Defense may waive mandatory military custody after consulting with the Secretary of State and the Director of National Intelligence. But the Secretaries of Defense and State and the Director of National Intelligence are not those primarily responsible for investigating and responding to acts of terrorism on U.S. soil; this responsibility has been assigned for many years - by Presidents of both political parties - to the FBI. In many circumstances, it may not be possible to arrange briefings, secure the necessary concurrences, and execute a waiver in the time frame needed to meet operational needs. Moreover, it is no answer to the acute operational problems the proposed provision creates for terrorism investigations to say that it can be waived. The law enforcement professionals on the front lines who are charged with protecting the country from terrorist threats on U.S. soil need a predictable, stable, and time-tested framework of rules within which to operate, not a complex system of exceptions and waivers that will inevitably sow confusion and result in operational errors.
- Rather than removing section 1032 entirely, as the Administration and the chairs of several congressional committees with jurisdiction over these matters advocated, the bill directs the President to develop procedures to ensure that the adverse consequences identified above do not materialize. This approach is not practical and is likely to inject confusion and uncertainty in critical domestic counterterrorism operations. For example, the bill requires procedures providing that a terrorist suspect need not be held in military custody "until after the conclusion of an interrogation session which is ongoing at the time the determination [that the suspect is part of al Qaeda or an associated force] is made." This provision ignores the fact that critical intelligence collection may occur over a number of "interrogation sessions" that could take place over several days or weeks, and that this intelligence collection effort is likely to be undermined if a shift to military detention is required in mid-stream. It also ignores the fact that the Executive Branch may have determined that the suspect is part of al Qaeda or an associated force well before he is even taken into custody, and that the individual has participated in planning or carrying out an attack or attempted attack. Such a determination would appear to preclude law enforcement from continuing to hold and question a terrorism suspect at the very outset of an investigation, even though that may be in the best interest of national security.
- Likewise, section 1032 states that the President should issue procedures to ensure that mandatory military custody "does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States." This provision fails to address the variety of operational needs that may be incompatible with a mandatory military custody requirement. For example, as noted above, federal law enforcement authorities may wish to use a suspected terrorist as a cooperating source after he has been arrested, to obtain intelligence or otherwise assist in the apprehension or prosecution of other terrorist suspects. Although there would be no ongoing surveillance or intelligence gathering with regard to the suspect in custody that would be interrupted, highly sensitive and important counterterrorism operations in which the source could provide critical assistance could be undermined by the requirement for mandatory military custody.
Section 1032 jeopardizes a key source of leverage in obtaining cooperation from terror suspects
- More broadly, by mandating military custody for terrorist suspects apprehended in the United States, section 1032 jeopardizes one of the most powerful tools we have to obtain cooperation from these suspects: the prospect of a long prison term. On numerous occasions, terrorist suspects have chosen to cooperate with federal law enforcement authorities and tell us what they know in hopes of receiving some benefit at the time of sentencing and imprisonment. Where necessary, the law enforcement process permits a terrorist suspect, through proffers with federal agents, to provide information that cannot be used directly to prosecute the target but can be used for its intelligence value or to investigate others. Often the process results in a guilty plea that requires additional cooperation.
- Requiring military custody in the first instance will impede the operation of these standard and highly successful mechanisms for obtaining cooperation and intelligence from terrorist suspects apprehended in the United States. For those held in military custody, the duration of imprisonment is uncertain and there are no enforceable mechanisms for encouraging cooperation that are analogous to those in the criminal justice system. There is no "sentence" over which to negotiate, and detainees may have little incentive to provide information that they perceive would only be used to justify detaining them under the law of war indefinitely. The detainees may instead have greater incentive to litigate the lawfulness of their detention, in hopes of obtaining a much more rapid release, especially in light of the unsettled legal authority for detaining individuals apprehended in the United States in military custody. And a transfer to military custody could in some cases complicate any effort to later prosecute the detainee, if prosecution turns out to be the best option for inducing cooperation or for ensuring that the detainee is brought to justice.
Section 1032 likely to reduce foreign nation's willingness to extradite terror suspects to the United States or share evidence with the United States under existing treaties
- Some foreign governments, including many of our closest allies, are unwilling to transfer terrorism suspects to the United States to stand trial or even provide evidence about suspected terrorists if they believe they will end up in military custody. Therefore, section 1032 will likely have negative effects on international law enforcement cooperation, and we expect that national security waivers will frequently be necessary in order for terrorist suspects to be extradited or otherwise transferred to the United States to face justice -- as has been done successfully in many cases in the past.