Obama's mandatory military detention waivers

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President Obama has taken the letter of a new law requiring the military detention of al Qaeda terrorists caught inside the United States and eviscerated its spirit.

Well done.

After signing on Dec. 31 the fiscal 2012 national defense authorization act--the law containing a controversial provision requiring military detention of non-citizen al Qaeda suspected terrorists--Obama issued a signing statement calling the requirement "ill-conceived," adding that it "will do nothing to improve the security of the United States."

Now, in a presidential policy directive, PPD 14 (.pdf), Obama has made use of the waivers provision of the law to define seven circumstances under which the mandatory military detention provision would not apply. They circumstances are pretty broad.

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 or 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.

In short, the likelihood of an al Qaeda-connected terrorist (the law specifies that there must be an affiliation with al Qaeda or associated movements) being subject to mandatory military detention are low. This is a good thing--because the last thing the we should do is to militarize our system of justice.

The rationale for military detention is that we are "at war" with terrorists--and in Afghanistan, we have indeed been at war with al Qaeda and their supporters. At the time we overthrew the Taliban government, Afghanistan was essentially a terrorist state and a military response there after 9/11 was a justified one.

But despite talk of how the war on terrorism is a different one--one that lacks a clearly defined front--a terrorist operating on U.S. soil is best treated as a criminal, not a prisoner of war. Make no mistake, al Qaeda seeks to do us harm; but, military action is a mechanism for when institutions such as courts lack power and jurisdiction.

Within our borders, law enforcement and the judiciary--with all the attendant safeguards against injustice built in--are the way those who actively harm others are held accountable. It quite simply is a bedrock part of who we are as a nation; it is something that al Qaeda seeks to destroy. We shouldn't abet it in doing so, and we should praise Obama for acting as he did. - Dave