Detention & Guantanamo

Initial Comments on the Implementing Procedures for NDAA Section 1022

By Benjamin Wittes
Tuesday, February 28, 2012, 11:25 PM

Raffaela earlier posted the President's implementation procedures for Section 1022 of the NDAA--that is, the not-so-mandatory military detention provision. I have only had a chance to read it over quickly, but here's a quick and dirty summary.

Bottom line: The President has--rightly in my view--read this law virtually out of existence. This is not a breach of faith with Congress, which in negotiations with the administration, so watered the provision down that, as signed, it reasonably lends itself to this reading. In fact, the provision--as Bobby has shown in earlier posts--would actually bear a more aggressive reading than President Obama has given it here.

Here's what Obama has done:

First, he has read his authority to waive the provision very broadly. He has both made clear that officials have the authority to waive it at any time with respect to individual detainees and has prospectively waived it himself with respect to several whole categories of suspects. Some of these categories are quite broad--including, for example, any situation in which transferring someone to military custody might impair efforts to secure his cooperation or garner his confession. Offhand, it's actually a little hard for me to imagine too many cases that wouldn't fit comfortably within at least one of the preemptive waivers the president has already issued. I suspect that isn't an accident.

Second, Obama has set up a process for determining whether transfer to the military is required that will all-but-guarantee that it never is. Here's how it works: Section 1022 only covers a narrow range of people to begin with, so if there's probable cause to believe that someone arrested is covered and not subject to any of the blanket waivers, the attorney general--in consultation with other senior national security officials--then has to determine whether there is clear and convincing evidence that the person is covered by 1022. If there isn't clear and convincing evidence, there's no transfer. If the officials discover that one of the waivers applies after all, there's no transfer. And if they feel like issuing a new waiver just to make sure, there's no transfer. If, for some reason, there is a transfer, the FBI has to make sure that it doesn't interfere with any ongoing interrogation or compromise any investigation, and if there's any chance of either, the transfer has to wait. And the procedures are clear that an "interrogation" here is not limited to a single session but, rather, "extends until the interrogating agency or agencies determine that all necessary intelligence gathering efforts have been exhausted." The procedures further make clear that the agency with custody of a suspect--presumably the bureau--shall operate normally in accordance with standard procedures until a transfer is required and can be effectuated without harm. They also reiterate that the FBI remains the lead agency with respect to investigating terrorist threats inside the United States.

Get it?

Put simply, policy under Section 1022 is no different than policy before it. The FBI has custody of people it arrests domestically unless and until the Justice Department feels like yielding custody to the military--which, under this administration, it never will.

I still think this provision is a stinker. But it stinks because of its symbolism, not for its operational consequences--which will be nil.