Obama’s Detainee Waivers Exempt Aspirational Terrorists from Military Detention

During the debate on the NDAA, I noted that Obama could just issue an order saying the military primacy required by the law would only kick in after a civilian trial.

Nothing in the bill allows Congress to override the procedures developed by the Administration; it only requires that Congress get a copy of them.

Which would seem to permit the Administration to issue the following procedures:

  1. The persons authorized to make determinations whether or not someone is a “Covered Person” are Article III jurors and/or jurists.
  2. The process by which it will be determined whether or not someone is a “Covered Person” will be a civilian trial.

That would seem to render the effect of the most noxious part of the detainee provisions minimal: rather than imprisoning convicted terrorists at Florence SuperMax, those terrorists will be detained at Leavenworth. But they won’t be transferred to military custody until after they get a civilian trial.

While Obama does carve out significant swathes of detainees who will be exempt from presumptive military detention, the order he released yesterday doesn’t go as far as requiring trials to determine if someone is a “covered person;” instead, it uses probable cause.

I’ll have a number of things to say about his order, but for the moment, look at how he defines “attempted attack;”

An “attempted attack” means an overt act or acts beyond  substantial step when (a) performed with specific intent to commit an attack; and (b) no further step or act by the individual would be necessary to complete the attack.

“No further act would be necessary to complete the attack.”

While most of the aspirational terrorists the FBI arrests would be exempted as citizens or lawful permanent residents, this definition would also exempt people like Khalid Ali-M Aldawsari–the Saudi who ordered chemicals to build a bomb, but had many further steps to go before his attacks would have been completed–from presumptive military custody. And while Aldawsari’s case is already really attenuated, the acts of someone like Najibullah Zazi would not have qualified either. (Note, I hope to return to this post on Aldawsari, but in the meantime, recommend you go read it.)

Mind you, I think that’s a good thing–the fewer people stuck in Lindsey Graham’s military brigs the better. But it does betray that DOJ charges as attempted attacks acts that, under this directive, don’t qualify as attempted attacks.

20 replies
  1. jjerryy says:

    I would like to be more sanguine about this, (yeah they realize the dangerous path they are stomping down leads to gutting civil rights and this hedge gives them an option, blah, blah, blah and other lip service stuff) but even a cursory look at the notion of ‘probable cause’ and how it has been debased throughout its short lifespan in the US precludes that notion from ever getting off the ground.

  2. rugger9 says:

    If Assange was indicted, wouldn’t that be relevant to his deportation proceedings in the UK, since he raised the issue of a rendition to the USA? While it’s better lipstick, it’s still lipstick, and I agree with Jerryy on this one. Cue the apocalypse.

  3. Benjamin Franklin says:

    “If Assange was indicted, wouldn’t that be relevant to his deportation proceedings in the UK, since he raised the issue of a rendition to the USA?”

    How could the UK even know, since the indictment is sealed?

    Sometimes, it is determined that the indictment should be kept secret. A secret indictment may also be known as a sealed indictment or silent indictment. In this case, the documentation surrounding the indictment is kept under seal, and no one involved may discuss the indictment outside of the grand jury hearings, or with anyone else once the hearings are over. When the seal is lifted, the contents of the indictment can be made public.

  4. rugger9 says:

    @Benjamin Franklin: #6
    Assange may not know, but perhaps the UK government does. Either way, he can now point to this report and ask the very pointed question to the court. It’s the rendition to the USA which seemed to worry him most, and it’s what the Swedes said wasn’t an issue. The report of an indictment clearly contradicts the Swedish government argument.

    Also grand juries aren’t open-ended in the USA, they have terms and the reports must be done by term end. I’m thinking that it may be probable that this particular GJ has finished its work. It’s something that caused the USA to go after bonds when they did, and why Bonds’ assistant taking one for the team worked. The GJ had a clock, Anderson did not choose to have one.

  5. Benjamin Franklin says:


    Procedure is a bog to me, as I am not a lawyer. Could they please create a flat-tax style legal system so I can just do the short-form?

  6. bmaz says:

    @rugger9: I think the Stratfor “report” is total crap. Is does not line up with any timing or grand jury activity (of which there has been some very recently) nor does it line up with positions the DOJ has taken in pleadings or DOD avowals in the Manning Article 32 hearing. Nor does it comport with the scuttlebutt I hear “on the street”. I do not believe what Stratfor and Wikileaks are yammering at all.

  7. Yastreblyansky says:

    @bmaz: This is true of whatever Stratfor material you look at. Stratfor is pretty much what would happen if RedState put out a product for which they could persuade people to pay $20000 a year.

  8. rugger9 says:

    @bmaz: #9
    It may well be, but….
    Where did Wikileaks get it? If this is part of the State cables intercepted, it could be bogus but could also point to a connection. Dating is also useful to know, it wasn’t very clear to me. Either way it opens the line of questions.

  9. bmaz says:

    @rugger9: It is not part of the State Dept cables whatsoever. WikiLeaks got it from the rogue hacker group Anonymous, who stole it from Strafor, a company with a reputation for information that is total shit.

  10. Benjamin Franklin says:


    Strafor, a company with a reputation for information that is total shit.

    Would LOVE to read about it myself…

  11. Benjamin Franklin says:

    Realized Bmaz probably talking through his hunt of the data. It is somewhat daunting. But, there’s this…


    At 4 a.m. on Thursday, at the end of an all-night session, Iceland’s
    Parliament, the Althing, voted unanimously in favor of a package of
    legislation aimed at making the country a haven for freedom of
    expression by offering legal protection to whistle-blower Web sites like
    WikiLeaks, which helped to craft the proposal.

    As the Web site Ice News reports, “One of the inspirations for the
    proposal was the dramatic August 2009 gagging of of Iceland’s national
    broadcaster, RUV by Iceland’s then largest bank, Kaupthing.”

    One of the sponsors of the proposal in the Althing, Birgitta Jonsdottir,
    told my colleague Noam Cohen in February that Iceland hoped to become
    “the inverse of a tax haven,” by offering journalists and publishers
    some of the most aggressive protections for free speech and
    investigative journalism in the world. “They are trying to make
    everything opaque,” she said. “We are trying to make it transparent.”

    As Mr. Cohen explained in an article on the package of laws that passed
    on Thursday:

    The proposal, the Icelandic Modern Media Initiative, combines in a
    single piece of legislation provisions from around the world:
    whistle-blower laws and rules about Internet providers from the United
    States; source protection laws from Belgium; freedom of information laws
    from Estonia and Scotland, among others; and New York State’s law to
    counteract “libel tourism,” the practice of suing in courts, like
    Britain’s, where journalists have the hardest time prevailing. […]

  12. Bob Schacht says:

    @Benjamin Franklin: Well, it sure is nice to read that there is a place in this world where freedom of the press [media] and transparency are appreciated and protected. Our government, instead, seems not to favor freedom of the press when it involves revealing stuff the government doesn’t want outsiders to see (mostly “state secrets,” but often just embarrassing stuff).

    Bob in AZ

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