President Obama released a Presidential Policy Directive that will waive the ability granted to the federal government by the National Defensive Authoritative Act (NDAA) to indefinitely detain American citizens without trial or change based solely on “secret evidence”.
The rules released by the White House on Tuesday aim to address their top concerns with the bill, said an administration official. Leading these concerns: the ability of the president to detain legal U.S. citizens in Guantanamo Bay based on confidential evidence that can easily be tampered with without consequence to the government.
The fact sheet (linked above) states: [quote]“It is important to recognize that the scope of the new law is limited…Section 1022 does not apply to U.S. citizens, and the President has decided to waive its application to lawful permanent residents arrested in the United States.” [/quote]
Another concern of the White House addressed in these “new rules” would be the transferring of arrested persons from local law enforcement to the military. Originally, the NDAA allowed the military to demand a transfer of an arrested person (citizen or not) to military custody without reason. This would also result in an indefinite detention and no chance of being given a fair trial. With these rules implemented, a person who is required to be held in military detention may be sent to local law enforcement for a fair criminal trial. The fact sheet states: [quote]An individual required to be held in military custody under Section 1022 may be returned to law enforcement custody for criminal trial…In addition, Section 1022 does not change the FBI’s authorities to respond to terrorism threats and these procedures do not apply to any individuals held in the custody of the Department of Defense, state and local law enforcement agencies acting under their authorities, or a foreign government. [/quote]
Furthermore: a transfer from civilian jail to military custody will require much more: [quote]The procedures ensure that an individual will be transferred from civilian to military custody only after a thorough evaluation of all of the relevant facts, based on the considered judgment of the President’s senior national security team, and not a rigid statutory requirement that does not account for the unique facts and circumstances of each case [/quote]
The categories of people exempted by the rules:
- When placing a foreign country’s nationals or residents in military custody will impede counterterrorism cooperation;
- When a foreign government indicates that it will not extradite or transfer suspects to the U.S. if the suspects may be placed in military custody;
- When an individual is a U.S. lawful permanent resident who is arrested in this country or arrested by a federal agency on the basis of conduct taking place in this country;
- When an individual has been arrested by a federal agency in the U.S. on charges other than terrorism offenses (unless such individual is subsequently charged with one or more terrorism offenses and held in federal custody in connection with those offenses);
- When an individual has been arrested by state or local law enforcement, pursuant to state or local authority, and is transferred to federal custody;
- When transferring an individual to military custody could interfere with efforts to secure an individual’s cooperation or confession; or
- When transferring an individual to military custody could interfere with efforts to conduct joint trials with co-defendants who are ineligible for military custody or as to whom a determination has already been made to proceed with a prosecution in a federal or state court.
Naturally: not everyone was happy about our civil liberties being protected. Republican sponsors of the bill, Sens. John McCain (Ariz.), Lindsey Graham (S.C.) and Kelly Ayotte (N.H.) spoke against the new rules, saying that they feel Obama is undermining their intentions for the bill. They released a joint statement expressing their concerns:
[quote]Although we have not been able to fully examine all the details of these new regulations, they raise significant concerns that will require a hearing in the Senate Armed Services Committee. We are particularly concerned that some of these regulations may contradict the intent of the detainee provisions of the National Defense Authorization Act passed by Congress last year. [/quote]