Provision Shifting Terrorism Cases to Military Domain Probably Won’t Pass

This week, a Senate committee approved revised language in the National Defense Authorization Act of 2012 that would attempt to cement in place a system of military tribunals for terrorism suspects, including those caught on American soil and potentially including terrorism suspects who happen to be American citizens.

The original language, which a Senate panel approved in June, shifted the responsibility for trying all terrorism suspects to the U.S. military, as opposed to civilian courts. Essentially, those who support the provision want individuals accused of being terrorists to be afforded less rights than all other human beings. The provision was written and included at the behest of John McCain who criticized the Obama administration for giving Umar Farouq Abdulmuttalab – the failed Christmas Day/underwear bomber – to the FBI. “That person should be tried as an enemy combatant; he’s a terrorist,” McCain said on CNN in January 2010. “To have a person be able to get lawyered up when we need that information very badly betrays or contradicts the president’s view that we are at war.”

Of course, we can’t have people getting “lawyered up.”

If passed, it would have been a drastic shift away from customary American law, which bars the military from conducting law-enforcement activities on American soil under the Posse Comitatus Act of 1878. Incidentally, there was some vocal opposition to these provisions from none other than the Pentagon. Pentagon General Counsel Jeh Johnson said in a speech to the American Constitution Society for Law and Policy in July, “There is danger in over-militarizing our approach to the current terrorist threat. We must guard against the impulse to automatically send into military custody every terrorist, every alleged terrorist, particularly those arrested on American soil for acts that violate American law.  Our military is the most powerful in the world … because of the limits we place on its ability to reach into the other areas of national security typically occupied by civilian law enforcement.”

The opposition came from many others in Congress as well. So before the bill got any further, the drafters were forced to change the language a bit. Charlie Savage describes the alterations:

Among the changes: a section affirming that the United States government can hold terrorism suspects without trial would delete a paragraph saying that it does not apply to citizens or lawful residents for their actions on domestic soil “except to the extent permitted by the Constitution of the United States.” Instead, it would be silent on whether or not such Americans can be held without trial.

The draft would also delete language imposing a potential limit on that detention authority: that the person must have been “captured in the course of hostilities.” The Defense Department had objected that such language might call into question whether it could detain Qaeda suspects who were captured far from the so-called “hot battlefield” of Afghanistan, and who were not accused of taking part in specific plots.

A section that would mandate military custody for noncitizen terrorism suspects is said to have been modified to add in that it does not apply to lawful residents, either, but that it does apply to people “captured in the course of hostilities.” The people describing the provision said it was ambiguous how that could be interpreted — including whether people “arrested” inside the United States would count.

Today, the Obama administration – to their (reluctantly granted) credit – issued a statement threatening a veto if the provision shifting responsibility for terrorism cases into the military remained in the bill. They couched their objection in terms of hindering their ability to fight terrorism, as opposed to the provision being an affront to basic human rights, but anyways, here it is:

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.

Unfortunately, Obama does not object to military tribunals in principle. In fact, he subscribes to much worse in his policies regarding Guantanamo and Bagram (namely, indefinite detention without habeas corpus). Nevertheless, the opposition from the administration, some in the Pentagon, and in Congress may succeed in stripping this totalitarian provision from the bill. So, perhaps I’ll have something to say when we go around the table this Thanksgiving.