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.

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emptywheel @OKnox Biggest problem w/entire debate is it has been pitched as abt nukes, for years, when it is instead abt hegemony. @BalkansBohemia
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emptywheel @OKnox Not to mention the failure to discuss NPT and basic sovereignty. @BalkansBohemia
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emptywheel @OKnox But if you opposed deal before bc enrichment BELOW levels that could lead to nukes opposing on nuke grounds a lie. @BalkansBohemia
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emptywheel "it’s no surprise to find Yahoo!’s Matt Bai, the unofficial high priest of conventional wisdom," http://t.co/LYIg5gU8lY
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JimWhiteGNV @OKnox And that Bush Admin precondition was seen as chosen precisely because zero chance Iran would agree. 2/2
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JimWhiteGNV @OKnox Part of the problem was that was the Bush Admin position: all enrichment had to be ended as precondition for talks. 1/2
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JimWhiteGNV RT @lrozen: Carper makes it #30 Senators supporting #Iran deal. His statement shows appreciation for complexity of Iran politics http://t.…
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JimWhiteGNV @michaelwhitney Would this be the wrong moment to ask why groping an old white dude is now a meme?
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emptywheel In 2010, "Ramos was 2nd-most recognized Latino leader behind SCOTUS Justice Sonia Sotomayor" http://t.co/xiH84cNkfw Year after confirmed
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emptywheel @DanaHoule We have a lot more guns in this country than France does.
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emptywheel @DanaHoule That all depends on what those rightwing populists do then.
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emptywheel @shekissesfrogs Ah, saw you got that right, sorry for the correx--missed the grammar pre-coffee.
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