- New rules allow president broader powers in how al Qaeda suspects are handled
- Not all foreign suspects will be necessarily handed over to U.S. military for trial
- President will now be able to waiver that requirement in prescribed instances
- Example of exception: Cases in which military custody would impede counterterrorism efforts
The Obama administration on Tuesday evening issued rules that allow the president to limit the instances in which foreign citizens suspected of links to al Qaeda must be handed over to the military for trial.
After an intense political struggle in December, Congress reached agreement with the White House to approve the National Defense Authorization Act by granting the president the power to waive the military custody requirement when "it serves U.S. national security interests."
The unsigned, 11-page policy directive issued by the White House and released by the Justice Department declares President Barack Obama and his national security team must have the flexibility to confront a "diverse and evolving threat"
"A rigid, inflexible requirement to place suspected terrorists into military custody would undermine the national security interests of the United States, compromising our ability to collect intelligence and to incapacitate dangerous criminals," the directive says.
The presidential document then lists several categories of suspects linked to al Qaeda or associated groups and waives the requirement that they must be transferred to military custody:
-- Cases in which military custody will impede counterterrorism cooperation.
-- Cases in which a foreign government indicates that it will not extradite or transfer suspects to U.S. military custody.
-- Individuals who are lawful permanent residents of the United States arrested inside the country.
-- Individuals arrested by federal agents in the United States on charges other than terrorism.
-- Individuals arrested by state or local law enforcement then transferred to federal custody.
-- Cases in which transferring an individual to U.S. military custody could interfere with efforts to secure his cooperation or confession.
-- Cases in which military custody could interfere with efforts to conduct joint trials with co-defendants ineligible for military custody.
The presidential directive then concludes with the statement that the White House sees the scope of the new law (NDAA for FY 2012) to be limited. It also concludes that even where a terrorism suspect is held in military custody, that individual may be returned to law enforcement custody for criminal trial.
The new rules are expected to have the full backing of the FBI and other intelligence agencies, which had fought hard to have a waiver included in the new law.
But it is likely to renew a partisan debate in which Republicans accuse the administration of refusing to acknowledge the country is at war with al Qaeda and that the White House has been too soft on terrorism suspects and too eager to close the prison at Guantanamo Bay.