Civil Liberties Advocates See Political Shackles In Revised Detention Bill

December 13, 2011 9:47 a.m.

The Obama administration is continuing to review a compromise struck between the House and Senate on the National Defense Authorization Act that congressional leaders believe solves the issues over the detention of terrorism suspects that caused the White House to issue a veto threat. But civil liberties groups have already given the proposal their assessment, and they don’t like what they see.

Sen. Carl Levin (D-MI) announced the changes Monday night, saying that the conference report “provides a number of additional assurances that there will be no interference with civilian interrogations or other law enforcement activities.” A Justice Department spokesman told TPM they were still assessing the compromise, while a White House spokesman did not respond to a request for comment.

Civil liberties groups, on the other hand, contend the changes aren’t enough. Take this language, added to the bill last night:

‘Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless of whether such covered person is held in military custody.’

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.

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