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A Problematic Terrorist Detention Bill

Authors: Matthew C. Waxman, Adjunct Senior Fellow for Law and Foreign Policy, and John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law
December 5, 2011

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The National Defense Authorization Act, facing intensifying debate this week on Capitol Hill, contains complex and controversial detainee provisions. These include mandated military custody for certain al-Qaeda suspects, including those detained inside the United States, and the extension of onerous restrictions on the release or transfer of detainees held at Guantanamo. The Senate's bill, passed last week, must now be reconciled with a similar House version before being sent to President Obama, who has threatened to veto if the detainee provisions are not modified.

The detainee provisions are apparently intended by their drafters to provide tough counterterrorism powers, but in practice they could have a detrimental impact on U.S. counterterrorism operations. Indeed, while originally drafted by Senate Republicans, these legislative encroachments on the president's authorities would likely have been as strongly opposed by the Bush administration as by the Obama administration. Any president--Democrat or Republican--would object to legislation that interferes this way with his flexibility in conducting the war against al-Qaeda.

Although the Bush administration detained many individuals under the laws of war, particularly those captured by the U.S. military during the course of operations abroad, it relied on investigations and criminal prosecutions conducted by the Department of Justice for al-Qaeda suspects captured inside the United States in all but two cases. In the two exceptions--both early in its first term--where the Bush administration relied on military authorities and custody to detain al-Qaeda agents captured domestically (Jose Padilla and Ali Saleh al-Marri), it ultimately reverted to civilian detention and criminal prosecution because the legal risks of doing otherwise were too high. In those and other cases, counterterrorism officials across the government recognized that civilian criminal prosecution was more reliable and effective than military custody to handle terror suspects inside the United States.

Mandating military detention for categories of suspected terrorists could also jeopardize the ability of the United States to seek extradition of al-Qaeda suspects from other countries and hamper vital intelligence-sharing and law-enforcement cooperation by U.S. allies, who would be concerned that information they shared might be used to place individuals into military detention. Likewise, extending the legislative restrictions related to Guantanamo detainees would limit the president's ability to transfer detainees to other countries in appropriate cases, as the Bush administration did with respect to more than five-hundred individuals. It is important that the United States develop a sustainable terrorist detention policy, and these restrictions could undermine diplomatic efforts critical to that effort and impede sound decision-making with regard to future captures in this ongoing war.

This year's National Defense Authorization Act so far has been a missed opportunity for the Executive branch and Congress to work together and put U.S. detention policy on sounder footing for the long term. President Obama should have followed through on his pledge in his May 2009 National Archives Speech to work with Congress to develop an appropriate legal regime for detention of terror suspects who cannot be prosecuted or released, and Congress should have been more responsive to the concerns of counterterrorism officials in the Executive branch. Many of the hard long-term questions this administration inherited--such as who may be detained, where they should be held, and pursuant to what legal processes--remain unresolved. This legislation, if enacted, will make it even harder for this and the next president to achieve lasting solutions.

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