Defense Authorization Conference Makes Few Changes to Detainee Provisions

According to a press release from Senator Levin’s office, the conference on the Defense Authorization has made few changes to the detainee provisions institutionalizing military detention of alleged terrorists.

With regards to Section 1031, which authorized the indefinite detention of alleged terrorists, the conference bill,

Reaffirm[s] the military’s existing authority to detain individuals captured in the course of hostilities conducted pursuant to the Authorization for the Use of Military Force. No change has been made to the Senate version of this provision, which confirms that nothing in the provision may be “construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

Section 1032, which mandates presumptive military detention, adds language purporting not to change FBI’s national security authorities (though I don’t understand how that could practically be the case).

Require military detention – subject to a Presidential waiver – for foreign al Qaeda terrorists who attack the United States. This provision specifically exempts United States citizens and lawful resident aliens, authorizes transfer of detainees to civilian custody for trial in civilian court, and leaves it up to the President to establish procedures for determining how and when persons determined to be subject to military custody would be transferred, and to ensure that such determinations do not interfere with ongoing intelligence, surveillance, or interrogation operations. Language added in conference confirms that nothing in the provision may be “construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.” [my emphasis]

And the conference does change the breathtaking limits on Attorney General authority in the Senate bill I laid out here, apparently adopting the House formulation of requiring the AG to ask permission of the Defense Secretary before the AG does his or her job.

Require the Attorney General to consult with the Secretary of Defense before prosecuting a foreign al Qaeda terrorist who is determined to be covered under the previous section, or any other person who is held in military custody outside the United States, on whether the more appropriate forum for trial is a federal court or a military commission and whether the individual should be held in civilian or military custody pending trial.

It seems to me the language does enough to avoid a veto from the cowardly Obama, but still does terrible damage to both the clarity of national security roles and overall investigative expertise.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

23 replies
  1. Brian Silver says:

    Thanks for the summary, and I agree with your comments about remaining ambiguity and the likelihood that Obama will sign (anything that comes out of Congress between now and Christmas).

  2. MadDog says:

    @MadDog: I’m at a loss as to understand why the Latif defense attorneys are appealing to the Supreme Court instead of first trying to get the case reviewed en banc by the entire United States Court of Appeals for the District of Columbia Circuit.

    It seems like a pretty big gamble. Going first to the entire Court of Appeals for the District of Columbia Circuit would seem to me a better approach. They might get Janice Brown overturned by the full court. If they lost again, at least they could augment the record.

  3. emptywheel says:

    @MadDog: Dunno. Wittes says DC Circuit rarely does that. Also, the District Court review issue is so basic, it’s probably not a bad idea to go SCOTUS. Frankly, SCOTUS might be more liberal at this point than DC Circuit.

  4. MadDog says:

    On the NDAA conference committee subject of this post, given that Senator Levin and Senator McCain are the Senate members of the NDAA conference committee, it always seemed unlikely that they would adopt any real changes to the bill that passed the Senate by a large 93 to 7 majority.

    Like you EW, I can’t see an Obama veto of a Defense bill in the midst of Campaign 2012.

  5. MadDog says:

    @emptywheel: I thought you’d appreciate that. It’s not often the NYT gives credit to a blogger, so when they do, it carries a certain cachet. Wear it proudly because you deserve it!

  6. MadDog says:

    @emptywheel: I realize that one of the additional factors could have been the notoriously conservative tilt these days of the DC Circuit, but perhaps as you say SCOTUS might seem more liberal by comparison. We shall soon see if they even accept it.

  7. emptywheel says:

    @MadDog: Perhaps bmaz will weigh in, but Scalia’s always a loose canon on these issues. Then again, we don’t know how Kagan would vote, or more likely given the number of her recusals, whether she even would. This was appealed after Kagan was on SCOTUS, but I’m not sure if she touched it at the District level.

  8. MadDog says:

    OT – Perhaps a little something for a morning post (Jim?) – via MSNBC:

    “Pakistan says U.S. drones in its air space will be shot down

    Pakistan will shoot down any U.S. drone that intrudes its air space per new directives, a senior Pakistani official told NBC News on Saturday.

    According to the new Pakistani defense policy, “Any object entering into our air space, including U.S. drones, will be treated as hostile and be shot down,” a senior Pakistani military official told NBC News…


    …Pakistani Military Chief Gen Ashfaq Pervez Kayani had issued multiple directives since the Nov. 26 NATO attack, which included orders to shoot down U.S. drones, senior military officials confirmed to NBC News on Saturday…

    That last paragraph quoted leaves unclear the nationality of those “senior military officials”. From earlier paragraphs, it would seem that these are Pakistani senior military officials, but one might read that last paragraph quoted to perhaps mean confirmation by US senior military officials. We shall see.

    Spencer Ackermann over at Wired made this claim:

    “…Still, the drone war appears to have slowed recently. According to the drone-watchers at the New America Foundation, there hasn’t been a strike in Pakistan since November 15…”

    But I would caution that one might take Spencer’s claim with a grain of salt. At the link he includes to the drone-watchers at the New America Foundation, the NAF folks state “This research was last updated on November 16, 2011.” Again, we shall see.

  9. MadDog says:

    @emptywheel: Good question about Kagan. I don’t remember hearing about her involvement in detainee issues while the DOJ’s Solicitor General, but I also wouldn’t trust my limited knowledge of her work to say that she didn’t have detainee case involvement.

  10. MadDog says:

    @MadDog: And on a OT drone-related note, does anyone other than me find the lack of US drone strikes in Yemen since the al-Awlaki assassinations a wee bit curious?

    Considering the big hullabaloo that the US made over the deadly seriousness of AQAP’s presence in Yemen?

    Considering the big hullabaloo that the US made over establishing a new CIA drone base in the region just for the purpose of taking on AQAP?

    Could it have been that the only CIA focus was on killing al-Awlakis (father and son)?

    Could it have been that the CIA cowboys riding herd over their new Yemen regional drone base got some serious ass-kicking over assassinating a US citizen who had only just turned 16 years old?

  11. bmaz says:

    @MadDog: Solicitor General authorizes and coordinates all appeals, including interlocutory appeals. Latif was involved in at least one, if not more, huge interlocutories that would have been ongoing as Kagan took over as SG. More importantly, the discussion of and eventual filing of the notice of appeal in Latif itself took place while she was still technically SG, although she had basically checked out somewhere right aroud that time I think. Bottom line is who the hell knows, but I am never shocked to see her recuse.

    Scalia, I dunno. Nino had some stretched out and contrived views on Eisentrager and the Suspension Clause as to Habeas and was VERY pissed off at the majority decision in Boumediene. So, my inclination is he will ride with the Brown decision..

  12. MadDog says:

    OT – And more for Jim via the AP:

    “Associate: Pakistan president had ‘mini-stroke’

    Pakistani President Asif Ali Zardari suffered a “mini-stroke” that led to his ongoing hospitalization in Dubai, a close associate of the leader said Tuesday.

    Zardari’s trip to Dubai last week has led to speculation – denied by the government – that he is losing his grip on power.

    The associate said Zardari, 56, will stay under observation in the Gulf sheikdom for around two weeks before returning. He said there was no question that Zardari was too ill to return to office…”

  13. freeman says:

    Marcy , I’m a bit hazy on this.

    Firstly according to the Supreme’s in Hamdi, American citizenship is not a bar to being held as an enemy combatant so as far as indefinite detention is concerned Americans are unprotected.

    Secondly, as Karl Levin pointed out , it is actually the administration that has asked that the language exempting Americans from indefinite detention be removed from the original legislation. Why would Obama veto what they themselves actually asked for ?

  14. freeman says:

    Also ,if the American continent is now part of the ” global battlefield “in the war on terror, and the military is allowed to operate outside posse comitatus (which is probably gone anyway because of Bush’s signing statement attached to it’s supposed reinstatement) is there anything truly preventing our assassination on American soil ?

  15. Mary says:

    One other aspect goes to the “captured in the course of hostilities” aspect. Does anything further define that? Looking at a. Lot of our detainees, the capture basically involved kidnapping and/or paying bounties to bounty hunters who were out doing the capturing. So here you end up with a vey big Geneva Conventions issue. When someone claiming to be a civilian is rounded up, the GCs spell out the kind of full and fair tribunal the detainee is supposed to get AND ONLY POWs are supposed to be shipped out of their country of capture.

    Shipping someone who has challenged and not received a full and fair GC compliant hearing or who is not a POW is a grave breach – aka war crime – under the conventions.

  16. emptywheel says:

    @freeman: Yes, I reported on that myself.

    The Admin is motivated, IMO, by two things. 1) They really want FBI in charge of terrorist investigations, which is completely laudable. 2) They want nothing to endanger a long network of OLC opinions have authorized things like detention, but also assassination and wiretapping and other things. It’s the latter motivation that led them to ask Levin to take out that language, because if there’s a restriction on detaining US citizens, it means the assassination of Awlaki was illegal (it would also make it harder to wiretap and presumably geolocate and a bunch of other things in the US).

    I think genuine fear of backlash, not just against assassination but also all their other CT toys, is what prevents the Admin from assassinating someone in the US (though also, that would be a stretch even for the pushovers in OLC). The Executive has managed to accrue all this power by not making it–or its application in some cases to all Americans–clear. That’s why they’re so sensitive about the secret interpretation of PATRIOT, which almost certainly builds partly off of Hamdi.

  17. Jim White says:

    @MadDog: Thanks for that. There have been multiple stroke reports since Zardari was hospitalized, but Gilani pretty decisively stated to the BBC in the clip I posted yesterday that there was no stroke. Until we see a stroke report where someone is willing to put their real name with it, I’m remaining agnostic.

  18. Jim White says:

    @MadDog: It’s not just Spencer saying there haven’t been any drone attacks. I saw reports yesterday (what, you expect me to provide a link while I’m still in Cancun?) from other sources saying the US had put the program on hold. Pretty sure I even tweeted about it.

    I didn’t see the story on shooting down drones. That one is very interesting indeed.

  19. Mary says:

    Hamdi actually has almost no real holding, being a Rehnquist/O’connor construct to keep Bush out of hot water. There was only a plurality on various bits and pieces. The main thrust was that, at least vis a vis us soil detention, no one on the court ( except Thomas) was willing to say there could be indefinite detention. Now Obama has added a Kagan,who is in much the same mold as Thomas , but the insipid “not a blank check” and *er, ummm, we kinda sorta think there should be , like, umm, ya know, some kind of period of unspecified time it would kinda sorta be maybe ok* nonstandard is all virtually worthless on a precedntial front. For US based detention, the fact that Roberts (whose lower court rulings were fairly repellant) is there is pretty much a wash with Rhenquist. Alito is also wildly pro Exec and followed pretty docilely on Lindsey Graham’s lead in questioning, but shows hints now and then of some penchant to stray if enough of an evidentiary trail is laid. Kagan is worthless and might need to recuse anyway, but is definitely a huge loss on almost all revelant Gwot fronts. Scalia is actually one of the toughest, but only so far when you have US citizens on US soil. The Vance case (where I am surprised Obama hasn’t generated a settlement yet) will be the decider on where Scalia would jump if you still have a US citizen, but his gov is kidnapping and torturing him overseas Ina “battlefield.”. In any event, you have to look at the legislation being preferred in light of the efforts of both parties to legitimize the criminal activity and/ or outrageous legal positions taken by Bush and Obama. If they say anything negative about detention, you run the gamut of cases in the pipeline where BOTH presidents have engaged in, and had their DOJs make on the record arguments for, a range of detention powers and assassination powers that would make North Korea ( who at least has not been assassinating Korean children abroad or assassinating US or South Korean scientists) blush.

  20. Mary says:

    @bmaz/Maddog I think that whether or not Kagan recuses on Latif will have a lot to do with vote counting. If the torture/forever detention to prevent embarrassment crew seem to have the votes based on back door sourcing, she’ll primly recuse so that Obama catches less conservative flack, but also can’t get a lot of flack on the left either. If her vote is needed,then she won’t recuse and she and Obama will abandon conscience and even good sense and finalize the descent into nothingness of the Sup Ct in the face of government stolen by purchased politicians, torturers and war profiteers.

    What Kagan and the Bush -Obama Legal channels will really push for is just to avoid it all by lobbying to have the court not take review.

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