Whatever President Obama’s legacy may be, he does not want to be seen as the commander in chief who turned the United States into the world’s jailer of Muslims without charge. But it’s not because he’s soft on terrorism.
Two administration officials confirmed Friday that the president isn’t bluffing about his threat to veto the defense authorization bill if its new detainee provisions aren’t substantially modified. That puts the president in the unusual position of wielding the veto pen against a political ally, Senate Armed Services Committee Chairman Carl Levin, D-Mich., who along with some strange Republican bedfellows, is pushing to beef up the military’s role in handling suspected terrorists.
In the Senate, debate has focused largely on whether American citizens would be subject to the proposed new law’s sweeping powers. In legal circles, it’s about the wisdom and morality of further codifying a system of indefinite attention. But for the Obama administration, it’s also about the future of counterterrorism.
The theory behind the Senate’s approach is this: the legislation basically creates a large broom that sweeps a large category of terrorists who might be covered under the Authorization for the Use of Military Force against the Taliban and al-Qaida into the military detention system on the assumption that they are combatants in a war, that the battlefield extends to the U.S., and that the military knows how to deal with combatants better than federal agents. Then there’s intelligence. As Sen. Lindsey Graham, R-S.C., an architect of the detainee provisions has said, “if you take the ability to hold someone as an enemy combatant off the table, you cannot interrogate them for intelligence-gathering purposes, and if you put a time limit on how long you can hold them, you defeat the purpose of gathering intelligence.”
The administration foresees a potential catastrophe. This rigid approach could impede intelligence collection, and even result in dangerous people being set free. For one thing, every detainee picked up and held by the U.S. outside the warzones like Iraq and Afghanistan can seek a habeas corpus hearing in front of a federal judge, requiring the administration to prove the association between the combatant and al-Qaida, or the Taliban, or associated forces, in order to keep them in military detention. Often, the government will be disinclined to lay out the proof—possibly because it doesn’t exist or because the providing the proof could compromise sensitive sources or methods, a sophisticated technical intelligence platform, or a liaison intelligence service.
“Detention issues are much more complex than most people realize,” Nathaniel P. Jones, a director for counter-terrorism on the National Security Council, said in an interview. “The only responsible way to handle these issues is to let the unique facts and circumstances of each case, and the advice of experienced professionals who have access to those facts, drive our decisions about which set of authorities to use to detain and try suspected terrorists.”
With “a rigid, ideological, one-size-fits-all approach like the one being advocated in Congress, intelligence will be lost and dangerous individuals will be set free,” he said. Letters to Congress from the directors of the FBI and CIA, as well as the National Intelligence Director James Clapper buttress this contention.
Practically, the administration argues that following this approach, the U.S. can avoid having to hold people without charges, and it doesn’t compromise our intelligence collection. Despite what the Senate says, trying to paper this over with waivers and additional bureaucracy will not solve the fundamental problems with an approach that mandates military custody…which it hasn’t really explained – beyond calling terrorism “war” – why such an approach is needed.
One provision of the bill would require that many terrorists associated with al-Qaida, no matter where they are apprehended, be turned over to the military. The House version of the bill would require terrorist suspects to appear before a military commission or be held indefinitely. An amendment suggests that U.S. citizens are not automatically covered by the provision. That of course, means they are not automatically not covered either. Some of the bill’s sponsors have said the presumption of association with al-Qaida would mean that anyone who is picked up in the U.S. on a terrorism-related charge and who appears to have some connection to al-Qaida --- maybe a website they browsed – could be denied access to an attorney and subject to immediate transfer to the custody of the U.S. military.
There’s a waiver process, which Congress added to provide a fig leaf of flexibility. The Secretary of Defense can certify to Congress that a federal trial would be better. But the procedures here are unclear and likely to run headlong into legal challenges. The FBI can’t detain categories of terrorists without the waiver saying they can, which is illogical. The FBI cannot interrogate someone without someone getting permission from Secretary of Defense, presenting to him with the details of the case, and submitting his affirmation to Congress.
"The legislation as currently drafted will inhibit our ability to convince covered arrestees to cooperate immediately, and provide critical intelligence," writes FBI director Robert Mueller in his letter to Congress.
The ad hoc system in place now, as messy as it is, gives the executive branch more flexibility, giving U.S. officials the ability to hold a suspect until they figure out how they want to proceed. It’s imperfect and raises all sorts of tough questions, but it does not require a rush to judgment and does permit a careful collection and examination of the evidence.
Ahmed Abdulkadir Warsame, a Somali, was held by the administration for two months on a U.S. Navy vessel while the government decided how to charge him. Because federal courts jurisdiction is much broader and the list of offenses for which a suspect can be charged much longer, counterterrorism professionals determined the safer route – both for purposes of protecting classified information and ensuring the right outcome – was to charge and try him in civil courts.
To establish jurisdiction in a military commission or hold him in military detention, the government would have to not only link him to al-Shabaab and al-Qaida in the Arabian Peninsula, but also demonstrate – with sufficient evidence – that Warsame was part of al-Qaida. Because that is not required in federal court, his prosecution there posed less of a litigation risk, and would not require the use of more sensitive intelligence.
Warsame will get a presumption of innocence vindicated, but if the goal here, even for hawks, is to get bad guys out of the battlefield, and permanently, the federal trial is a safer bet. An American jury might acquit a terrorism suspect, but the after Congressional reforms to the military commission system, there’s no reason to think that’s any more likely to happen in federal courts than in a military commission. To the consternation of many, the Obama administration reserves the right to hold suspected terrorists pursuant to the AUMF where it is appropriate to do so, as it did with Warsame. But to do so, it has to defend that detention in court, which is not always possible. It could put the government in a position of having to lay out that classified evidence that wouldn’t be required in a civilian prosecution.
Wouldn’t the administration have to prove a linkage in federal court? Not at all. Federal officials can charge the person with materially supporting any designated terrorist group, regardless of the individual’s or group’s connections to al-Qaida. They can simply use the offense itself, something that they cannot do for military commissions, which, by their definition, can only be used to try members of al-Qaida or others we can demonstrate are involved in an armed conflict with the United States.
Example: the FBI’s ace counter-terrorism team in Seattle arrested two Americans, Khalid Abdul-Latif and Walli Mujahidh in June for conspiring to attack a military recruiting center. The government may – or may not – have evidence linking them to al-Qaida. If the feds do, maybe the evidence was provided to them by a country that doesn’t want its cooperation known. It didn’t matter: The two were held on charges that will send them to prison for 50 years if they are found guilty. If the Senate bill is signed into law, some argue these two men would be in military custody… or maybe even free, if the government can’t, or won’t, prove their links to al-Qaida. (To be fair, it’s not clear from the text whether “home grown” extremists would actually be covered by the Senate legislation, but the intent of those who wrote it suggests that the answer is yes, even though the administration might disagree.)
An irony here is that the Senate bill, while seeming to get tough on terrorists,will make it harder to bring certain of them to justice. Or maybe it’s not an irony: the net effect of this bill, were Obama to sign it, would be the creation of a significant disincentive to capture terrorists or facilitators who might possess intelligence about future attacks. Instead, there would be a larger incentive to simply kill them.
Congress seems to think that the AUMF detainees are all snatchable or killable by U.S. special operations forces. That’s not true. Many are rounded up in countries with which the U.S. is not at war. And whatever fantasies you harbor about the Joint Special Operations Command operating in a European capital, no Delta Force element is going to grab someone in Berlin anytime soon.
No problem, if the country would turn over the person to the U.S. But the proposed Senate legislation makes that less likely. In classified briefings, the administration has presented to Congress examples of people who are in custody overseas and who would be transferred to the U.S. were it not for the likelihood that they’d end up in the military commission or detention system. It’s not just Western Europe: countries around the world – from the Middle East to Southeast Asia – are unlikely to turn over Muslims to the U.S. military to be held in indefinite detention or tried in a military commission for reasons that should that should be manifest.
On intelligence, most counter-terrorism experts seem to think that the procedures in place for gathering time-sensitive information are sufficient, and that the Miranda process, which applies to terrorists arrested by the FBI, doesn’t hinder that urgent national security need. The leverage of the military system, ostensibly in the fear that it would create in detainees or in the expertise of military interrogators, is weighed against the leverage that federal prosecutors have – and, of course, the track record of FBI interrogators (or interrogators who are part of the newly-formed High Value Interrogation Group team). David Headley was handled through the criminal justice system, provided valuable intelligence, and was ultimately sentenced to life in prison for his role in the Mumbai massacre in 2000. Headley is one example in a long list of intelligence successes in our federal courts.
A deal might have been possible early on, when the Armed Services Committee was drafting the bill. Levin might have subtracted some of the provisions he secretly negotiated in exchange for codifying military detention of al-Qaida suspects picked up overseas, or perhaps the near-term eschewing of a new prison for detainees inside the United States.
Many Democrats were surprised when Levin unveiled his language on detention. But they need not be. He does not want to be the first Armed Services Committee chair in decades to fail to produce a defense policy bill. And in these poisonously partisan times, a compromise on detainees is the only way he's going to get votes.