Terrorism Trials: Legislative Development

House-Senate Side-by-Side of NDAA Provisions: Part II

By Benjamin Wittes
Wednesday, December 7, 2011, 12:11 PM

The following is a continuation of our side-by-side comparison of the House and Senate versions of the NDAA:

Prohibition of Detainee Transfer to the United States

The House version of the bill (Section 1039, p. 586) contains a specific prohibition on using fiscal year 2012 funds to "transfer or release an individual detained at Guantanamo Bay" or a non-citizen detained elsewhere into the United States. The Senate version does not appear to contain a similar provision; indeed, as I noted before, by implicitly including federal court trials as possible dispositions under the laws of war, it appears to envision that some military detainees might at some point end up in federal courts here in the United States. But the apparent flexibility on the back end in the Senate bill is belied by its rigidity on the front end.

Indeed, both bills here are significantly flawed on this point--albeit in mirror image fashions. The House bill does not compel military detention at Guantanamo, but it does create a kind of Roach Motel there, where detainees can check in but they can't check out--even to a trial in federal court. The Senate version, by contrast, requires military detention but it does make it possible in a Byzantine sort of way for that detention to end for purposes of a federal trial.

The right answer here to scrap both the transfer restriction and the mandatory detention language. That's going to be a hard sell, there being zero appetite in Congress for bringing any detainees to the United States--for detention, for release, or for trial. I would love to see the administration plant the flag on this one, but my guess is that it will have to pick its poison. If that's the case, it's an easy choice: the restriction on transfer to the United States is far less bad than the mandatory detention provision, particularly since the administration has already given up the ghost on where the Khalid Sheikh Mohammed trial will take place.

Restrictions on Detainee Transfer Abroad

Both bills contain a prohibition on using fiscal year 2012 funds to transfer detainees from Guantanamo to foreign countries in the absence of a detailed certification by the Secretary of Defense concerning the arrangements that have made for the detainee (Section 1040 in the House bill, pp. 587-590, and Section 1033 in the Senate bill, pp. 432-439). These certifications, which are required under current law too, have proven in practice all-but-impossible to meet--causing Guantanamo transfers to grind to a halt. Both bills also flatly ban transfers to any country where there has been a single case of recidivism in the absence of a national security waiver by the Secretary of Defense. Both bills exempt court-ordered releases from the restrictions.

The only significant difference between the two--other than wording variance--is that the Senate bill gives the Pentagon marginally greater flexibility in the waiver authority than does the House bill: In the Senate bill, the waiver authority extends to aspects of the certification itself, not merely to the ban on transfers to countries that have given rise to recidivism.

But this is small consolation. The transfer restrictions are very bad policy, and they are one of the issues on which Obama simply needs to put his foot down. It was a huge mistake for him to sign them into law last year, and he's paid an enormous price for it. They will melt away the moment he convinces Congress that he will veto the NDAA over them. And if they don't, and if Congress passes them over his veto, and least he will not have acquiesced to them.

Requirement of Consultation Regarding Terrorist Prosecution

While the House version of the NDAA does not contain an explicit requirement of military custody, it does contain a few provisions not in the Senate bill that push strongly in that direction. One of these is Section 1042 (pp. 591), which requires that before a prosecution can be initiated against any non-citizen for "a terrorist crime," the Justice Department "shall consult with the Director of National Intelligence and the Secretary of Defense about" (1) whether the prosecution should take place in federal court or in a military commission, and (2) whether the individual should be transferred to military custody.

This little-discussed provision does not mandate any particular outcome, and it's not entirely clear to me what it would do in practice. But as I read it, at least, it potentially kicks in before arrest, requiring the FBI to consult with the DNI and the Pentagon before picking up a terrorist suspect domestically. It therefore seems like it has significant potential for mischief, particularly in combination with the provision described in the following section, and it certainly ought to come out of the final bill.

Ban on Federal Court Trial of Terrorist Suspects

The House bill also contains a noxious provision added on the floor (Section 1046, pp. 602-603) that would flatly ban federal court trials of "any foreign national" who is accused of a terrorism offense and "is subject to trial for that offense by a military commission." This provision has no counterpart in the Senate version of the bill. In combination with the transfer restrictions and the 1042 requirement of consultation before an arrest, it makes law enforcement custody and prosecution of terrorist suspects impossible--notwithstanding the fact that the House bill does not contain a mandatory detention provision.

Again, this is just one of those provisions on which the President needs to put his foot down. There is no compromising on it. If it becomes law, it should not be because the President blinked but because Congress defied him with a veto-proof majority.

Clarification of Right to Plead Guilty to Capital Offense in Military Commission

Both bills contain a provision that would clarify that a defendant in a military commission facing capital charges may plead guilty if he chooses. This is an open question under current law and is important to resolve.

Procedures for Status Determinations

Finally, the Senate bill contains a major provision not in the House bill, mandating the creation of procedures "for determining the status of persons detained pursuant to the Authorization for Use of Military Force." The provision arises because the Senate bill mandates military detention for certain people arrested on suspicion of terrorism, and it requires that they be held pending disposition under the laws of war. So this provision then creates a process for adjudicating the cases of those slated for "long-term detention"--one of those possible dispositions.

The irony is that the process the bill lays out is quite generous compared to what detainees now receive now when they show up at a U.S. detention facility. It would have a military judge preside, and it would give detainees military counsel to represent them at the proceedings.

The trouble is this generous process is inextricably tied to the mandatory detention requirement, which cries out for death and burial and without which these procedures are a kind of legislative orphan. This is actually a shame, because there's a really good idea lurking underneath this provision, one that goes to something I've been arguing for some time about Guantanamo.

If we stopped thinking about Guantanamo as a place we are ashamed of and want to close, and we started thinking about it as the location in which we do long-term detention under the rule of law, it's possible to imagine a process like this undergirding the later habeas process. Detainees slated for long-term detention--but not trial--would come to Guantanamo, be subjected to this sort of generous procedure, and the fruits of that procedure could then form a record to which a habeas court might plausibly defer. The review mechanism set up for those who lose in this process and in later habeas review (whether that process existed in statute or in executive order) would then regularly assess then necessity of continued detention.

In other words, a process like this one could be constructive--but not as a feature designed to prevent law enforcement from doing its job. Constructed that way, as it is now, it needs to go.