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 Qaeda 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 Lindsey Graham, 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, during which the administration will have to prove the association between the combatant and Al Qaeda, or the Taliban, or associated forces. Often, the government will be disinclined to lay out the proof. For one thing, they might not have proof. Or, the proof comes from a very sensitive source or method: an agent, a sophisticated technical intelligence platform, or a liaison intelligence service.
Wouldn’t the administration have to prove a linkage in federal court? Not at all. They can charge the person with materially supporting any designated terrorist group, regardless of the individual’s or group’s connections to al-Qa’ida. 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-Qa’ida 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 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 Qaeda. If they do, maybe the evidence was provided to them by a country that doesn’t want its cooperation known. No matter: the two dudes were strung up on charges that, if found guilty, will send them to prison for 50 years. If the NDAA 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 Qaeda. (To be fair, it’s not clear from the bill text whether “home grown” extremists would actually be covered by the bill, 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 it will be harder to bring to justice certain terrorists. Or maybe it’s not an irony: the net effect of this bill, where Obama to sign it, would be a significant disincentive to capture terrorists or mopes who might possess intelligence about future attacks. Correspondingly, their would be a larger incentive to simply kill them.
But 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 Europeean capital, no Delta Force element is going to grab someone in Bonn anytime soon.
No problem, if the country would turn over the person to the U.S. But 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 now 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.
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.