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Becky Bowers
By Becky Bowers January 7, 2013

Republicans push for military custody of terror suspects; Obama pushes back

In 2010, House Republicans pledged to "demand an overarching detention policy” for foreign terrorists.

The idea: Keep terror suspects off U.S. soil, and without Miranda rights to remain silent and consult an attorney.

"Foreign terrorists do not have the same rights as American citizens, nor do they have more rights than U.S. military personnel,” the Republicans wrote in their Pledge to America. "We will work to ensure foreign terrorists, such as the 9/11 conspirators, are tried in military, not civilian, court.”

Did they achieve their goal?

The Speaker's Office says Republicans kept the promise with a letter to President Barack Obama and provisions in the 2012 and 2013 National Defense Authorization Acts.

The July 2011 letter from several House committee chairman calls on the president "to define his Administration"s policies on interrogation, detention, and prosecution of terrorists.”

The lawmakers expressed concern that a Somali man suspected of leading an al-Qaida-linked terror group was indicted in civilian court in New York.

It was not an isolated case: During 2009 and 2010, the number of federal criminal terror or national security indictments per year nearly doubled compared with the President George W. Bush administration, according to the Center on Law and Security at New York University School of Law. They continued in 2011.

Meanwhile, the National Defense Authorization Act for fiscal year 2012 included Section 1022, "Military custody for foreign al-Qaida terrorists.” Generally, it requires the United States to hold foreign terror suspects in military custody, where they may face trial in military court — or stay indefinitely without trial, military or otherwise.

The defense authorization acts for 2012 and 2013 also prohibit the transfer of terror detainees from Guantanamo to the United States, according to GOP lawmakers.

Now, lawmakers made demands, but that's not to say the Obama administration conceded.

Section 1022 was promptly gutted by a presidential policy directive, according to Golnaz Fakhimi, an attorney for the International Justice Network who litigates on behalf of U.S. detainees in Afghanistan.

Obama issued several national security waivers, outlining a range of circumstances under which the administration wouldn't be required to keep terror suspects in military custody. And even if suspects were held in military custody under Section 1022, his directive said, they could still ultimately be returned to law enforcement for criminal trial. (That's essentially the opposite of ensuring foreign terror suspects would be tried only in military court, as Republican lawmakers pledged.)

"To my knowledge," said Fakhimi, "Section 1022 has not been used in the U.S. since the law was passed.”

Still, Section 1022 remains on the books, and could be enforced in the United States by the next president.

In 2010, House Republicans pledged to "demand an overarching detention policy” for foreign terrorists, saying they would "work to ensure foreign terrorists, such as the 9/11 conspirators, are tried in military, not civilian, court."

They made that demand in a letter to the president, and put into law requirements that foreign terror suspects be held in military custody and that terror detainees at Guantanamo not be transferred to the United States. But given the difficulty they've had getting Obama to comply, we rate this a Compromise.

Our Sources, "Keeping the Pledge to America: How Republicans Have Fought to Create Jobs, Cut Spending, & Change the Way Congress Does Business," Sept. 20, 2012

House Armed Services Committee, "Republican National Security Leadership Calls On Obama To Define Detainee Policy," July 19, 2011

House of Representatives, Letter to President Barack Obama, July 19, 2011 (PDF)

ABC Nightline, "New Terror War Tactic? Alleged Al Qaeda-Linked Operative Secretly Held 2 Months on US Navy Vessel," July 5, 2011

New York Times, Ahmed Abdulkadir Warsame, accessed Jan. 7, 2012

Government Printing Office, "National Defense Authorization Act for Fiscal Year 2012," accessed Jan. 7, 2012

House Armed Services Committee, "FY 12 - NDAA Conference Report and Highlights," Dec. 12, 2011, "Speaker Boehner Applauds House Passage of the National Defense Authorization Act," May 18, 2012

House Armed Services Committee, "Committee Overwhelmingly Passes the FY13 National Defense Authorization Act," May 20, 2012

Presidential Policy Directive, Procedures Implementing Section 1022 of the National Defense Authorization Act for Fiscal Year 2012, Feb. 28, 2012 (Fact sheet)

Center on Law and Security, New York University School of Law, Terrorist Trial Report Card: Sept. 11, 2001 - Sept. 11, 2011

Columbia Law School Human Rights Institute, "National Security Prosecutions & Administrative Detention,” March 9, 2012

Interview with Golnaz Fakhimi, staff attorney for the International Justice Network, Jan. 7, 2013

By David G. Taylor August 4, 2011

The House bans detainee transfers to U.S. mainland

The status of terrorism suspects held at Guantanamo Bay and elsewhere continues to be a hotly contested issue almost ten years after the September 11 terrorist attacks. The Bush administration came under heavy criticism by civil rights groups for its promotion of military tribunals to try terrorism suspects as opposed to in federal courts on the U.S. mainland.

Trying at least some of these suspects in U.S. courts was one of President Barack Obama's objectives upon taking office. In 2009, the administration announced that it would try Khalid Sheikh Mohammed -- the Al-Qaida mastermind behind the Sept. 11 terrorist attacks -- and four others in federal court in New York City.

Congressional lawmakers criticized the administration's plan, citing national security implications if terrorist suspects were brought to the U.S. mainland. Due to congressional opposition, the Obama administration abandoned its plan in April 2011 and opted to try Mohammed and others in the military tribunal system. One reason for this decision was the National Defense Authorization Act for FY 2011, in which Congress prohibited the use of defense funds to transfer prisoners from Guantanamo to the United States.  

Attorney General Eric Holder said the administration made the change so as not to delay prosecutions. "We must face a simple truth: those restrictions are unlikely to be repealed in the immediate future. And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their families who have waited nearly a decade for justice,” he said.

The House of Representatives, now under Republican control, wants to renew this ban for the next fiscal year. In July, the House passed the National Defense Authorization Act for FY 2012, by 336-87. Like its predecessor, the act would prohibit funds from being used to transfer detainees to the United States. The Senate version of the budget bill passed through the U.S. Senate Armed Services Committee in June. The bill is still waiting for approval in the full Senate.

President Obama threatened to veto the House bill due to a number of items. Aside from restrictions on detainee transfers, the administration also objects to provisions that would weaken the executive's ability to carry out the new START Treaty and provisions that continue to fund an extra engine on the F-35 fighter jet -- an aspect of the project that the Obama administration wishes to cancel.

Through its power of the purse, the Republican-controlled House of Representatives is in the process of fulfilling its promise to try terrorism suspects solely in military courts. The funding prohibition gives the Obama administration little choice but to use the military tribunal system -- or else not try the suspects at all. The restriction still needs to be passed through the Senate and survive Obama's veto threat, but for now we rate this promise as In the Works.

Our Sources

National Defense Authorization Act for Fiscal Year 2012, H.R. 1540.

National Defense Authorization Act for Fiscal Year 2012, S. 1253.

U.S. Senate Committee on Armed Services, press release, June 17, 2011.

White House Statement of Administration Policy on H.R. 1540 - National Defense Authorization Act for FY 2012. May 24, 2011.

ABC News, "In Reversal, Obama Orders Guantanamo Military Trial for 9/11 Mastermind Khalid Sheikh Mohammed,” April 4, 2011.

The New York Times, "In Reversal, Military Trials for 9/11 Cases,” April 4, 2011.

Reuters, "White House criticizes House defense spending bill,” June 23, 2011.

USA Today, "House passes $649B defense spending bill,” July 8, 2011.

The New York Times, "Senate Offers Revised Rules for Suspects of Terrorism,” June 23, 2011.

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