The Obama Administration issued new procedures yesterday regarding military detention under the NDAA. The new procedures are so strict and red-tape-y that, according to even the president’s political opponents, will lead to the law rarely seeing the light of day, if ever.
Under broadly written categorical waivers carved out by the Obama administration, the military custody requirement will be waived if the suspect’s home country objected to military custody; if the individual is a lawful permanent resident arrested in the country or for conduct conducted in the country; when a suspect is originally charged with something other than a terrorism offense; when a person is originally arrested by state or local law enforcement; when a transfer to military custody “could interfere with efforts to secure an individual’s cooperation or confession”; or when transferring an individual might interfere with joint trials with other defendants.
President Obama also said that the Attorney General, working with other national security officials, has the ability to issue additional waivers for “categories of conduct, or for categories of individuals, or on an individual case-by-case basis, when doing so is in the interest of national security.”
Benjamin Wittes of the Brookings Institute wrote that Obama’s procedures had “read this law virtually out of existence.”
Sen. Chuck Grassley (R-IA), who supports placing some terrorism suspects into military custody, agreed.
“These procedures make clear that the National Defense Authorization Act expressly exempts U.S. citizens from mandatory military detention, but they also make it so procedurally difficult that effectively, no individual of any nationality will likely ever be transferred to mandatory military custody under section 1022,” Grassley said in a prepared statement for a Senate Judiciary Committee hearing on the matter on Wednesday. “Between the bureaucratic requirements and the seven national security waivers, it is clear the provision will be seldom, if ever used on anyone, let alone a U.S. citizen.”
I’m sure some professionally-paranoid individual out there is already spinning this as some kind of back-door to indefinite detention which is being left open intentionally for some nefarious purpose, but it seems fairly clear to me that the Obama Administration is using every tool within its power to lock this door for good. And that’s no easy task when congress has continuously undermined the process of undoing Bush’s various War on Terror blunders.