How President Obama Plans to Implement the NDAA's Military Custody Provisions

http://www.forbes.com/sites/gregorymcneal/2012/02/29/how-president-obama-plans-to-implement-the-ndaas-military-custody-provisions/

 

The National Defense Authorization Act’s (NDAA) controversial military custody provisions have been largely nullified through implementing procedures ordered by President Obama.  The President, through Presidential Policy Directive 14 has crafted a broad set of waivers which allow domestic law enforcement agencies to easily abrogate the military custody requirements found in Section 1022.

The National Defense Authorization Act is the Greatest Threat to Civil Liberties Americans Face

 

As a refresher, Section 1022 of the NDAA requires “the Armed Forces of the United States shall hold a person” who is “captured in the course of hostilities authorized by the Authorization for the Use of Military Force (Public Law 107-40) in military custody pending disposition under the law of war.”  

Person, as described in the statute means one who is “determined to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and [is determined to] have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”  Under the plain terms of the statute the “requirement to detain a person in military custody…does not extend to citizens of the United States.”

 The President’s waivers are responsive to the needs of law enforcement who according to The Washington Post “had feared that the law on sending alleged al-Qaeda members to military custody would inhibit their ability to get suspects to cooperate.”  Beyond meeting the needs of law enforcement, PDD-14 specifies that the implementing procedures are designed to ensure that a “rigid, inflexible requirement to place suspected terrorists into military custody” does not “undermine the national security interests of the United States, compromising our ability to collect intelligence and incapacitate dangerous individuals.”

Per the terms of the NDAA, the President is authorized to waive the military custody requirement when doing so is “in the national security interests of the United States.”  The President has flipped the NDAA’s requirement that one be held in military custody pending disposition of their status on its head, instead issuing a waiver at the outset for a number of specific situations that he believes trigger the national security interests of the United States.  Specifically, the President determined that it is in the national security interests of the United States to forgo military custody when:

• PDD-14 II. B. 1.- Placing a foreign country’s nationals or residents in military custody will impede counterterrorism cooperation;
• PDD-14 II. B.2.- A foreign government indicates that it will not extradite or transfer suspects to the United States if the suspects may be placed in military custody;
• PDD-14 II. B.3.- An individual is a U.S. lawful permanent resident who is arrested in this country or arrested by a federal agency on the basis of conduct taking place in this country;
• PDD-14 II. B.4.- An individual has been arrested by a federal agency in the United States on charges other than terrorism offenses;
• PDD-14 II. B.5.- An individual has been arrested by state or local law enforcement, pursuant to state or local authority, and is transferred to federal custody;
• PDD-14 II. B.6.- Transferring an individual to military custody could interfere with efforts to secure an individual’s cooperation or confession;
• PDD-14 II. B.7.- Transferring an individual to military custody could interfere with efforts to conduct joint trials with co-defendants who are ineligible for military custody or as to whom a determination has already been made to proceed with a prosecution in a federal or state court.

While these all seem to be prudent judgments, the blanket waivers under B.3. and B.5. do not, on their face, have anything to do with “the national security interests” of the United States.  B.3. merely treats a lawful permanent resident like a U.S. citizen, but the national security imperative animating that is lost on me.  It is certainly not the case that lawful permanent residents don’t join al Qaeda and engage in acts of terrorism (see here for example).  Now don’t misunderstand me, this waiver may be a good idea, I’m merely noting that it doesn’t fall within the requirement that a waiver be “in the national security interests of the United States” unless national security interests is broadly construed.  Similarly, the blanket waiver under B.5. for those who are arrested by state or local law enforcement and transferred to federal custody also does not fit within “the national security interests” provisions of the statute.  The other waivers (B.1.,2,4,6 and 7) all touch on matters traditionally associated with national security: B.1. and B.2. speak to foreign relations, B.6., and B.7. speak to intelligence collection or ongoing trials.  B.4. is confusing at first glance, but probably contemplates a circumstance where one would fit within the terms of Section 1022, but would not be charged with a terrorism offense, perhaps anticipating a pretextual arrest for national security purposes like we’ve seen with immigration offenses.

As for B.3. and B.5., I find these difficult to square with the requirement that the waiver be “in the national security interests of the United States.”  Nothing in the language of either waiver triggers the type of circumstances traditionally associated with national security interests (no foreign relations issues, no intelligence issues, no ongoing investigations or counterterrorism cooperation issues).  Thus, for these waivers to be valid, we must conclude that the President is entitled to determine, without the benefit of any facts, that military custody is simply never in the national security interests of the United States when a person captured in the course of hostilities authorized by the AUMF happens to be a lawful permanent resident or someone arrested by local authorities.  There may be a national security interest buried in those waivers, but I’m not seeing it.  

Of course, that fact won’t have much of an impact, as this is a matter that will have to be fought out between Congress and the President. 

Greg McNeal is a professor and specialist in law and public policy.  You can follow him on Twitter @GregoryMcNeal.