Detention: Law of: Legislative Development

Selecting Between Civilian and Military Prosecution Options in the Shadow of the NDAA

By Robert Chesney
Saturday, February 11, 2012, 11:03 PM

NPR had a story today concerning the process of selecting between civilian and military commission prosecution options.  It's an important topic.  Unfortunately, the story included the following mistaken description of the NDAA's impact:

...But here's what's new: the new Defense Authorization Act puts a thumb on the scale in favor of the military court system. If a foreigner attacks the U.S. and has ties to al-Qaida, he goes straight to a military commission. The only exception: an alleged terrorist can be tried in a civilian court if the president signs a waiver. ...

This is the second time this week that the nature of the NDAA's mandatory elements has been misstated in a high-profile setting (though earlier the mistaken suggestion was that non-prosecutorial detention, not commission proceedings, were the requisite default setting).  As I've noted repeatedly, the NDAA--notwitstanding its supporters' claims (and its critics' fear) that it mandated reliance on military alternatives--expressly leaves open the civilian prosecution option.  No waiver is required, let alone something with the president's signature; civilian prosecution is simply one option among several (including military commissions and non-prosecutorial military detention) that can be selected, at the executive branch's discretion, in circumstances where a member of al Qaeda or the Taliban is linked to a specific plot or attack.

So why then does Section 1022 contain a presidential waiver provision?  Section 1022 of the NDAA requires that covered persons (members of al Qaeda or the Taliban linked to a specific plot or attack) ordinarily must be held in military detention pending disposition under the laws of war.  Disposition under the laws of war is defined elsewhere in the statute to include, surprisingly perhaps, civilian criminal prosecution.  The net impact is that once the government identifies a person as a "covered person," that person as a default matter must be held by the military until the government makes the disposition determination...but the President may issue a national security waiver if he does not want the person held in military detention during the period preceding the disposition decision.  That's all the waiver is for.  There is no need for it once the government decides to use civilian prosecution, and in any event nothing stops the government from making the decision to select civilian criminal prosecution at the same moment it decides that the person is a "covered person."

If that sounds silly, then you understand it correctly!