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Reversing the Presumption of Military Custody

Chipping Away at the NDAA

by JOANNE MARINER

Two positive steps have just been taken toward limiting the scope of the detention provisions of theNational Defense Authorization Act (NDAA), the recently-passed federal statute on the military detention and trial of terrorist suspects.

The first is that, yesterday evening, the Obama Administration issued a policy directive that effectively negates much of the NDAA’s section 1022, the section that purports to require that non-citizens suspected of strong links to terrorism be held in military, rather than civilian, custody. Using a national security rationale, the directive reverses the presumption of military detention that section 1022 had established.

The second step toward limiting the NDAA is less immediately effective, but might be more important in the long run.  At 10 a.m. this morning, the Senate Judiciary Committee held a hearing on the Due Process Guarantee Act, a bill introduced late last year in the wake of the NDAA’s passage.

Drafted in response to concerns that section 1021 of the NDAA authorizes the indefinite military detention of US citizens picked up on US soil, the Due Process Guarantee Act would protect both citizens and lawful permanent residents arrested in the US against being detained indefinitely under a military rationale. It would set a baseline prohibition on indefinite military detention in these cases, allowing it to be used only when Congress explicitly provides for it.

Introduced by Sen. Dianne Feinstein, the act now has 23 co-sponsors, including four Republicans. Its passage, or the passage of any bill like it (there are several such bills currently pending in the House and Senate), would be a powerful endorsement of the fairness and effectiveness of the civilian justice system.

Reversing the NDAA’s Presumption of Military Custody

The presidential directive issued today is explicitly required by the NDAA, which states that the president must issue procedures for section 1022’s implementation within 60 days of the NDAA’s enactment. But while the new directive adheres strictly to the NDAA’s timeline, it otherwise ignores much of the NDAA’s purpose and intent.

The goal of the NDAA’s detention provisions, stated clearly by many of the law’s congressional supporters, was to limit executive discretion, dramatically restrict reliance on civilian justice options, and ensure that terrorism cases are handled by the military. Yet as the law’s provisions were negotiated over the course of 2011, their mandatory nature was weakened. What was left, when the law finally passed in mid-December, was a presumption of military custody for certain non-citizen terrorism suspects.

The new directive takes what the law framed as an exception to this presumption and makes it the rule, effectively turning the presumption on its head. Taking advantage of section 1022’s national security waiver provision, the new directive sets out a number of broad and flexible categories of suspects who are supposed to remain in the civilian justice system.

According to the directive, non-citizen suspects who fall within any of seven categories will not be subject to military custody, as the president has prospectively certified that keeping them in civilian custody serves US national security interests.  Among the protected categories are:

1. Foreign nationals or residents whose placement in military custody “will impede counterterrorism cooperation,” including the sharing of intelligence.

This category alone could arguably cover a wide swathe of cases, given that foreign governments are generally not pleased to see their nationals placed in indefinite US military detention, and that the sharing of intelligence often takes the form of trading favors.

2. Lawful permanent residents arrested within the US or arrested by a federal agency on the basis of conduct occurring in the US.

While this exemption grants lawful permanent residents a degree of protection, it is worth noting that US residents picked up abroad by the US military based on conduct that took place on US soil, or those picked up abroad by the US military based on conduct occurring abroad, would not be protected by it.

This is still much preferable to the rule set out in the NDAA, which makes an empty gesture in the direction of protecting lawful permanent residents from mandatory military detention, allowing such detention only “to the extent permitted by the Constitution of the United States.” Indeed, the wording of the NDAA makes one wonder if, by implication, non-lawful residents can be held by the military even when the Constitution does not permit it.

3. Non-citizens whose transfer to military custody “could interfere” with efforts to secure that person’s cooperation or obtain his or her confession.  (This is another extremely broad category, particularly given the open-ended reference to possible—as opposed to likely or definite—interference.)

Moreover, for any suspects arrested by the FBI or other federal agency who are deemed to fall outside of the seven categories, the directive establishes an interagency review process that defaults back to the civilian justice system. Only if a range of government actors concur—including the Attorney General, Secretary of State, and Secretary of Homeland Security—will a suspect be transferred from civilian to military custody.  And even if the interagency process recommends the transfer, the head of the FBI can still veto it if he or she determines that the transfer will disrupt ongoing intelligence collection or compromise national security investigations.

Although such transfers are still conceivable given some toxic confluence of politics and events, the review process set out in the directive effectively reverses the presumption of military custody contained in the new law.

Limiting the NDAA via Congressional Action

One problem with a presidential directive is, of course, that it can be rescinded by a future president. And while the new directive represents a laudable effort to narrow some of the NDAA’s most objectionable provisions, it leaves section 1021 of the law untouched.

A much better, if more long-term, approach to remedying the law’s problems would be to repeal or amend it.  The hearings held this morning by the Senate Judiciary Committee are a step in that direction.

Close observers of the NDAA will recall that its detention provisions were passed without any hearings, and that even though its provisions negatively impacted the civilian justice system, the bill was never brought before the House or Senate Judiciary Committees for a vote. Today’s hearing, while too late to prevent the NDAA’s passage, should serve to formally initiate the broad congressional discussion that the law’s provisions merit.

What is needed is statutory reform: a clear legal rule that terrorism cases belong in the civilian courts.  Because, in the end, flexibility and executive discretion—the focus of the new directive—mean that the government is as free to take the wrong approach as the right one.

As the fact sheet accompanying the directive emphasizes, the new rules open up the executive’s detention options, but they do not limit those options. A determination that section 1022 does not apply or should be waived “does not affect the executive branch’s discretion to use any lawful disposition option…[It just means] that there is no statutory requirement to place an individual in military custody.”

Joanne Mariner is the director of Hunter College’s Human Rights Program.  She is an expert on human rights, counterterrorism, and international humanitarian law. 

This column previously appeared on Justia’s Verdict.