Obama issues waivers to mandatory military detention of al Qaeda terrorists
The White House issued Feb. 28 a presidential policy directive (.pdf) containing broad waivers to a law requiring mandatory military detention of non-citizen al Qaeda terrorists captured inside the United States.
The military detention provision is a part of the fiscal 2012 national defense authorization act that President Obama signed into law on Dec. 31. The mandatory military detention provision has proved contentious, with Obama issuing a signing statement calling the requirement "ill-conceived," adding that it "will do nothing to improve the security of the United States."
Despite the law's controversy, it never has applied broadly to the U.S. populace, since it only affects members of al Qaeda or associated forces who have already participated in a terrorist attack, or attempted terrorist attack. A January Congressional Research Service analysis (.pdf) says the provision would not apply to a lone wolf terrorist with no ties to al Qaeda or associated forces.
The law contains language permitting the president to issue waivers to mandatory military detention, and in the directive issued Tuesday, the administration lists seven circumstances under which mandatory military detention would not apply. The seven waivers, many critics of the law and of Obama alike agree, do much to limit the effect of the mandatory military detention law.
For example, an individual first arrested by state or local law enforcement, even if later transferred to federal custody, would be exempt. So would lawful permanent residents, regardless of whether the arresting authority is a federal civilian agency or state and local law enforcement. An individual whose military detention would "impede counterterrorism cooperation, including but not limited to sharing intelligence" by foreign countries would likewise come under the waiver. In perhaps the broadest waiver, if transferring an individual to military custody "could interfere with effort to secure an individual's cooperation or confession," a waiver would likewise apply.
The directive also defines an "attack" for purposes of the law as "an act of violence or the use of force that involves serious risk to human life," and an "attempted attack" as a circumstance under which "no further step or act by the individual would be necessary to complete the attack."
Should an individual be detained who is not covered by any one of the waivers, federal law enforcement agents are directed under the directive to consult with the attorney general, who must in turn coordinate with other top national security officials.