As reported by TPM.
The Obama administration issued procedures late Tuesday on their interpretation of the provisions of the National Defense Authorization Act (NDAA) which required some terrorism suspects to be held in military custody. In short, the guidelines make it nearly impossible for a terrorism suspect to end up in the hands of the military.
Under broadly written categorical waivers carved out by the Obama administration, the military custody requirement will be waived if the suspect’s home country objected to military custody; if the individual is a lawful permanent resident arrested in the country or for conduct conducted in the country; when a suspect is originally charged with something other than a terrorism offense; when a person is originally arrested by state or local law enforcement; when a transfer to military custody “could interfere with efforts to secure an individual’s cooperation or confession”; or when transferring an individual might interfere with joint trials with other defendants.
Whew, that's a long list of conditions and goes considerably behind his initial
Signing Statement to protect the rights of the accused from abuse under Military Confinement.
Even though their been quite a hullabaloo over this issue, prompting reporters such as Chris Hedges to preemptively sue the Obama Administration over his signing of the NDAA, in practical terms their really isn't any pathway from being a U.S. Citizen to Gitmo or any form of Indefinite Detention under these guidelines.
And in truth, there never was as reported by PoliticsUSA.
“The administration officials reviewed the draft language for this provision the day before our markup and recommended additional changes. We were able to accommodate those recommendations, except for the administration request that the provision apply only to detainees who are captured overseas. There is a good reason for that. But even here, the difference is relatively modest, because the provision already excludes all U.S. citizens. It also excludes all lawful residents of the United States, except to the extent permitted by the Constitution. The only covered persons left are those who are illegally in this country or who arrive as tourists or on some other short-term basis, and that is a small remaining category, but an important one, because it includes the terrorists who clandestinely arrive in the United States with the objective of attacking military or other targets here.”
So under these rules Jose Padilla would if he were captured now on U.S. soil would not be held in Military Custody - which he was under the Bush Administration, although he was ultimately tried in Criminal Court - nor would Faisal Shahzad (the attempted "Time Square Bomber" who has been sentenced to
Life in Prison), but Umar Farouk Adulmatalub (the "Underwear Bomber") could have been if he'd been taken captive by our Military Forces in Yemen or Pakistan instead of the FBI at the Detroit Airport. (Also noting of course that under
Posse Comitatus the Military can't do Law Enforcement on U.S. Soil, so only regular law enforcement
could be involved domestically.)
(Where that leaves someone like Awlaki, a U.S. National in an undeclared "War Zone" under the 2001 AUMF or Bradley Manning a U.S. Soldier being held by the U.S. Military is fair question, and may need some clarification by Congress - see below.)
But that's not all..
President Obama also said that the Attorney General, working with other national security officials, has the ability to issue additional waivers for “categories of conduct, or for categories of individuals, or on an individual case-by-case basis, when doing so is in the interest of national security.”
So that's seems
all good, and is likely to generate a ton of
Fake Paranoidal National Security Outrage tm from the Right Wing but the real question is - could a future President and his Attorney General simply
remove these waivers and place a U.S. Citizen into an indefinite military purgatory?
Not really according to the Lawfare Blog.
Reading the existing language of section 1031 in conjunction with section 1032, I concluded that the best reading of the bill was: yes, section 1031 encompassed citizens. Later that day, Senator Feinstein offered an amendment to the bill in an effort to preclude that outcome, by explicitly altering section 1031 so as to state clearly that citizens are not included. This amendment failed. Still later, she offered a fall-back amendment, altering section 1031 so as to say that it should not be construed as taking a position on the US citizen question one way or the other. That amendment was adopted, and is now part of the Senate bill as the conference on the NDAA gets underway.
So even though many have argued that the current NDAA - as a fact - authorizing indefinite detention of U.S. Citizens, it's
does not. It didn't change anything that wasn't already existing statute or existing case law and subsequent to the
Hamdan,
Hamdi and
Boumedien decisions where the Supreme Court has repeatedly established that neither U.S. Citizens or Foreign Nationals Captured on the Battlefield
can be held without Habeas Corpus Relief, how exactly could any future President claim the lack of such relief for a U.S. Citizens like Hamdi, Shahzad or Padilla who might be captured in the future?
I think it's highly unlikely any President could expect not to have such a decision quickly and sounded slapped down in court, but getting the full Feinstein Amendment passed and signed to make this issue Crystal Clear wouldn't hurt.
Vyan