The Obama administration released procedures giving civilian prosecutors latitude in devising the rules for how suspected terrorists should be handled during detention, interrogation and prosecution.
The administration was required to come with the procedures issued yesterday under a provision of last year’s National Defense Authorization Act. Congress had sought to give the military more control over people accused of plotting against or attacking the U.S.
“A rigid, inflexible requirement to place suspected terrorists into military custody would undermine the national security interests of the United States, compromising our ability to collect intelligence and to incapacitate dangerous individuals,” the policy directive says.
The guidelines say that any suspected terrorist detained by a law enforcement agency will be handled under standard criminal procedures until it’s determined that the individual is covered by the law and should be turned over to the military. The guidelines repeat President Barack Obama’s previous statement that the directive does not apply to U.S. citizens.
The procedures authorize the Attorney General to waive the military custody requirement under the provisions of the law anytime doing so is in the interest of U.S. security, according to a fact sheet accompanying the order.
The fact sheet also outlines seven circumstances in which the military custody requirement would be waived, including when doing so would impede cooperation on counterterrorism, when a foreign government refuses to extradite suspects if they will be held by the military or when it would interfere with prosecution of other suspects.
Other exceptions are suspects who are lawful permanent U.S. residents arrested in the U.S., those arrested by local or state law enforcement, individuals arrested on charges other than terrorism offenses and when transferring a suspect to military custody would interfere with securing cooperation.
When he signed the National Defense Authorization Act for Fiscal Year 2012 on Dec. 31, Obama called the provisions regulating the detention, interrogation and prosecution of suspected terrorists “ill-conceived.” The administration had worked with lawmakers on a compromise to address some of the objections raised by Obama’s national security staff and federal law enforcement officials, including FBI Director Robert Mueller.
Still, Obama included a signing statement in which he said he retains “full and unencumbered ability to waive any military custody requirement.”
“I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat,” he said in the statement.
Regarding a section on the executive branch’s authority to detain suspected terrorists, including U.S. citizens captured on the battlefield, Obama said he wanted “to clarify that my administration will not authorize the indefinite military detention without trial of American citizens.”
He argued that the 2001 Authorization for Use of Military Force act, as well as rulings by the Supreme Court, have already conferred authority to the executive branch to make temporary detentions.
“This section breaks no new ground and is unnecessary,” he said.
Critics such as the American Civil Liberties Union said the law gives presidents power to order indefinite detentions by the military of civilians far from a battlefield and without formal charges.