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Senate NDAA Thought #1

Benjamin Wittes
Saturday, June 25, 2011, 9:23 AM
The Senate's NDAA language on detainee matters, about which I have previously written here and here, is now available. I have two additional thoughts on the Senate language--the first of which I will lay out in this post. It concerns Section 1032, the mandatory military detention provision I described--and bewailed--in my earlier post.

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The Senate's NDAA language on detainee matters, about which I have previously written here and here, is now available. I have two additional thoughts on the Senate language--the first of which I will lay out in this post. It concerns Section 1032, the mandatory military detention provision I described--and bewailed--in my earlier post. I want to give a good faith effort in this post to imagine how this provision, if enacted, would function in practice. I think the most likely answer is that it would be an unmitigated disaster at an operational level. But there's a slight wrinkle. Depending on the Executive Branch's bureaucratic response to it, there is a vague possibility that it would have almost no impact at all. The provision reads in its entirety as follows:
    (a) Custody Pending Disposition Under Law of War-
    (1) IN GENERAL- Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) in military custody as an unprivileged enemy belligerent pending disposition under the law of war.
    (2) APPLICABILITY TO AL-QAEDA AND AFFILIATED ENTITIES- The requirement in paragraph (1) shall apply to any covered person under section 1031(b) who is determined to be--
    (A) a member of, or part of, al-Qaeda or an affiliated entity; and
    (B) a participant in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.

(3) DISPOSITION UNDER LAW OF WAR- For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1031(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1033.

(4) WAIVER FOR NATIONAL SECURITY- The Secretary of Defense may, in consultation with the Secretary of State and the Director of National Intelligence, waive the requirement of paragraph (1) if the Secretary submits to Congress a certification in writing that such a waiver is in the national security interests of the United States.

(b) Requirement Inapplicable to United States Citizens- The requirement to detain a person in military custody under this section does not extend to citizens of the United States.

(c) Effective Date- This section shall take effect on the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that date.

The "dispositions under the laws of war" laid out in Section 1031(c) include:
(1) Long-term detention under the law of war without trial until the end of hostilities against the nations, organizations, and persons subject to the Authorization for Use of Military Force. (2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)). (3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction. (4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
In short, broadly speaking, in the absence of a waiver, the provision requires that the military take custody of and hold as an enemy belligerent any non-citizen who is believed to be a member of Al Qaeda or some affiliate and is believed to be participating in any plot to attack the U.S. or its allies. While it allows any of several dispositions (unlike the House version of the NDAA, which requires a military commission trial if any trial is to happen), it requires military custody in the first instance and critically, it it not even limited to situations in which the person in question has been arrested. So let's consider two very plausible counterterrorism scenarios and how they would interact with this bill, were it law. In the first, the FBI arrests an Al Qaeda operative domestically in the midst of an unfolding terrorist plot, and he quickly begins talking productively and giving useful information. This situation has materialized at least twice in recent years, and we can certainly expect it to develop again in the future. 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. Since the bill does not specify how long the government has to turn such the suspect over the to the military--it requires merely that the military "shall hold" the person--the government would probably be in violation of its terms from the moment of the arrest itself. It might even raise doubt as to the legality of the arrest. After all if the military "shall hold" a suspect, it follows logically that the FBI shall not hold that same suspect. This would be profoundly disruptive in the most sensitive operational situations. 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 the military--which might have no nearby investigative presence or detention facility. This brings me to my second scenario, one in which the FBI has identified a suspected terrorist cell that, it believes, is plotting an attack, and it has that cell under surveillance and is trying to find out who its controllers are and explore its wider network. This scenario arises relatively frequently, and arrest is not necessarily the first thing agents do. One wants, after all, as comprehensive a sense as possible of the players and their contacts before the take-down. Often, the best option is simply to wait and watch and learn. But at least as I read this proposal, that course would be flatly illegal. Why? Because the provision is not limited to people who have actually been detained. As soon as someone is identified as a member of Al Qaeda (or some affiliate) and engaged in terrorist planning, the military "shall hold" him. The result is that, if the government wanted to comply with the law, the FBI would be obliged in this scenario to cut short its surveillance and notify the military, and the military would be obliged to conduct the arrest raid on U.S. soil. After all, if the FBI arrests the cell members itself, the military--at least for some period of time--would not be holding the covered people. The wrong agency would be holding them. 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. I am sure I could think of other common counterterrorism operations scenarios with which this provision would wreak havoc. But I'll satisfy myself with these two. The point is that absent frequent, all-but-automatic use of the waiver provision, the provision would interfere fundamentally with virtually all FBI investigations of Al Qaeda-related activity in the United States. In fact, the disruption would be so profound that I wonder if the administration's response to its enactment would be to make use of the waiver authority routine. It is, after all, surely not in the national security interests of the United States to foul up every investigation that looks anything like the scenarios I have outlined. So I could imagine that the administration would respond to this legislation (assuming it didn't veto it) by effectively creating a formal, prospective understanding between the Pentagon, the DNI, and the Justice Department and FBI that a waiver will happen automatically whenever compliance with the law would interfere with FBI counterterrorism investigations and operations domestically. The irony of this proposal is that it is so extreme that its terms incentivize the use of a provision that, used routinely, could make the whole thing a virtual nullity.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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