Legislation would mandate military custody of all terror suspects

A little-noticed provision of the National Defense Authorization Act would put all terror suspects into immediate military custody, a controversial change that would have significant legal repercussions for the ongoing war on terror.

The measure was tucked into the Senate's version of the omnibus Pentagon spending measure shortly before Congress adjourned for its summer recess. Similar language had been in the House version of the bill, but it was stripped out after intensive back-channel lobbying by senior White House and Pentagon officials. The measure's future will be decided when lawmakers from the two chambers meet in conference later this month to reconcile the two versions of the massive bill.

If the measure goes into effect, militants arrested while planning or carrying out a terror attack -- or in the aftermath of such a strike -- would be placed under military custody rather than being left to civilian law enforcement agencies like the FBI. The measure wouldn't apply to American citizens, but legal experts believe that it is written broadly enough to encompass large numbers of terror suspects.

"Right now the president has a choice of whether the FBI or the military should take custody of a terror suspect, and there's often a preference for giving the FBI first dibs because of their expertise in interrogation and intelligence-gathering," said Raha Wala, an analyst for Human Rights First. "This would take away that choice and require the military to take custody of a huge category of terrorism suspects captured at home or abroad, which I think is very alarming."

The provision was inserted into the NDAA at the request of Sen. John McCain, R-Ariz., ranking member of the Senate Armed Services Committee, according to Senate aides familiar with the panel's deliberations. McCain has long been a proponent of putting terrorism suspects into military custody and trying them before military commissions rather than in civilian courts.

Like many of his fellow Republicans, McCain fiercely criticized the Obama administration for having FBI agents detain and question would-be bomber Umar Farouq Abdulmuttalab, who attempted to blow up a packed airliner on Christmas Day 2009.

"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."

Rachael Dean, a spokeswoman for McCain, declined repeated requests in recent weeks to comment on the lawmaker's support for the new provision.

The measure seems certain to reignite the heated political debate over the Obama administration's detention policies. Obama recently reversed his campaign pledge to close down the Guantanamo Bay detention facility and instead acknowledged that it will continue to hold terror suspects indefinitely. Obama also reversed an earlier vow to try Sept. 11 mastermind Khalid Sheikh Mohammed in a civilian court.

Despite those shifts, many Republicans argue that the president is soft on terror because of his stated preference for having FBI agents take custody of terror suspects and for trying militants in civilian courts whenever possible. Republicans were particularly incensed that FBI agents read Farouk his Miranda rights and gave him access to a lawyer. Sen. Susan Collins, a moderate Republican from Maine, said in January 2010 that the Obama administration had made a serious mistake by treating "a foreign terrorist who had tried to murder hundreds of people as if he were a common criminal."

Beyond the political wrangling, many legal experts believe the new measure would significantly change the legal contours of the broader war on terror.

Benjamin Wittes, a senior fellow at the Brookings Institution, argued in a recent essay that such a change could be "profoundly disruptive" to American counterterrorism efforts. Wittes noted that a suspect arrested by the FBI in the midst of an unfolding terrorist plot would have to be transferred to military custody even if the militant was providing useful information about the planned attack, potentially setting back the investigation significantly.

"Absent a waiver, it seems clear that the provision would require that the FBI suspend a productive interrogation, transfer the arrestee to the military, and that the military begin things anew later on," Wittes wrote in the essay. "The last thing the bureau needs when it pulls someone off a plane who has just tried to blow up that plane is to worry about how quickly it can turn him over to the military -- which have no nearby investigative presence or detention facility."

Wittes cited a second area of concern: the fact that the provision could pave the way for the military to conduct law-enforcement activities on American soil, something that has been expressly outlawed under the Posse Comitatus Act of 1878. If the FBI uncovered evidence of a possible terror plot, Wittes wrote in the essay, the military would be "obliged to conduct the arrest raid on U.S. soil" to avoid running afoul of the law.

"This scenario should scare those concerned about the integrity of intelligence and counterterrorism operations at least as much as it should scare those who get the willies thinking about the military conducting domestic arrest operations," he wrote.

The Obama administration shares those concerns. When the House was considering its own version of the NDAA earlier this year, Pentagon General Counsel Jeh Johnson and other senior administration lawyers publicly and privately urged lawmakers to scrap the language requiring the military to take immediate custody of terror suspects.

"There is danger in over-militarizing our approach to the current terrorist threat," Johnson said in a speech to the American Constitution Society for Law and Policy in July. "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."

Republicans, of course, see the matter differently. Several GOP aides, speaking on background, said they believed that the military was better-suited to take custody of terror suspects because it could detain them indefinitely and interrogate them without advising the militants of the right to remain silent or giving them access to a lawyer. With time very much of the essence in ongoing terror cases, the aides argued that giving the military access to the suspects as quickly as possible could save American lives.

The debate about what to do with terror suspects has waxed and waned in recent years and is currently at a low point, overshadowed by the nation's economic woes and the ongoing fight over how to close the yawning federal deficit. But with the administration and Senate Republicans gearing up for a battle over the military's role in terror cases, the McCain provision -- tucked into a massive bill with virtually no public notice -- could be the spark that reignites the simmering fight.