The SASC National Defense Authorization Act:Undue and Dangerous Requirement of Mandatory Military Custody
The SASC-reported version of the NDAA includes a provision that would mandatemilitary detention of any non-citizen who is a member or part of al Qaeda or an affiliated entityand has planned or carried out an attack or attempted attack against the United States or itscoalition partners. Only the Secretary of Defense, in consultation with the Secretary of State andDirector of National Intelligence, could waive this requirement
and only upon a writtencertification to Congress that a waiver is in the national security interest of the United States.This requirement unduly constrains the President’s authority to investigate and stopterrorist attacks, and will ultimately harm national security.
Military custody of captured terrorists makes sense in some cases, and the Presidentalready has authority under the 2001 Authorization for Use of Military Force(AUMF) to authorize the military to capture and detain individuals who are part of al Qaeda, the Taliban, and associated forces. But even if a tool might be valuable insome
cases, requiring the use of that tool is bad policy. It reduces our options forinvestigating and effectively responding to terrorist threats, advertises to our enemyexactly how we will respond to each new capture, and creates major operationalhurdles.
Every single suspected terrorist captured on American soil
before and after theSeptember 11
has first been taken into custody by law enforcement
notthe United States military. There have been only two cases in recent history inwhich suspected terrorists were subsequently transferred to military custody, andboth of these cases spawned extensive litigation and raised major statutory andconstitutional questions concerning the legality of the government’s actions.
Civilian law enforcement agents
not the military
would likely be the firstresponders in the event of a domestic terrorist attack or attempted attack on U.S.soil. Law enforcement officials focus first on questioning designed to obtaininformation about on-going attacks or plots, the location and nature of potentialweapons, and associates of the captured individual who may still be at large. Underthis bill, agents would be required to stop such questioning if the individual isdetermined to be a member of al Qaeda or an affiliated group and turn theindividual over to military custody. This requirement would apply even if theindividual was cooperating with law enforcement and providing critical and time-sensitive intelligence.
To be sure, the bill contains a waiver provision. But the Secretaries of Defense andState, and the Director of National Intelligence are not those primarily responsiblefor investigating and responding to domestic terrorism
responsibility fallsprimarily to the FBI, along with components of the Department of HomelandSecurity. In many circumstances, it may not be possible to arrange briefings, securethe necessary concurrences, and execute a waiver in real-time, as investigations areunfolding. Thus, the FBI would be required to halt critical intelligence-gathering