The NDAA Makes It Harder to Fight Terrorism

Military Custody Is Counterproductive


(Larry Downing / Courtesy Reuters)

Despite his earlier threat of a veto, President Barack Obama signed the National Defense Authorization Act (NDAA) of 2012 into law on the last day of 2011. The bill, which was sponsored by Senators Carl Levin (D-Mich.) and John McCain (R-Ariz.), had bipartisan support, passing in the Senate by 86 to 13 with one abstaining. The vote reflected the determination of Congress to confirm the president's authority to detain terrorists already in military custody, prevent their being transferred from Guantánamo to federal prisons on the U.S. mainland, and increase the role of the military in future counterterrorist efforts.

But the law has angered libertarians and conservatives, who see its authorization of indefinite detention without trial and military custody of terrorist suspects as a frontal assault on the Bill of Rights. Opponents of the new law fear that it will further increase executive authority at the expense of the courts, prevent the United States from ever closing Guantánamo, and expose Americans to arbitrary arrest and indefinite detention. Indeed, such fears are founded.

To meet some of these concerns, the Senate House Conference Committee, a body that reconciles Senate and House drafts of new legislation, inserted language in the final version of the bill excluding U.S. citizens and lawful permanent residents from military custody. The Senate rejected efforts to exclude U.S. citizens from indefinite detention.

Instead, the bill states only that it will not alter existing law, but existing law on detention is not settled. President George W. Bush claimed that he had authority to indefinitely detain without bringing charges or bringing to trial José Padilla (a U.S. citizen arrested in Chicago) and Ali al-Marri (a legal permanent U.S. resident). Before the Supreme Court could hear the case challenging this assertion, however, the administration turned both individuals over to civilian courts.

Moreover, the NDAA's supposed exclusion of U.S. citizens from military custody is not absolute. First, the United States has no separate prison system for terrorist suspects. In practice, indefinite detention (to which American citizens remain vulnerable under the new law) means military custody. The government held both Padilla and al-Marri in a Navy brig to keep them out of civilian custody. And second, the government could choose to interpret the bill's added language as merely exempting U.S. citizens from the "requirement" that terrorist suspects be held in military custody, leaving their actual treatment to the discretion of the president. In his signing statement, Obama promised that his administration "will not authorize the indefinite detention without trial of American citizens." A future president might not be so inclined.

Much of the debate over this bill has focused on the political issue of executive authority versus rule of law. In doing so it has overlooked the indirect and insidious effects the new law may have on the United States' largely successful counterterrorist campaign.

A fair way to assess this bill would be to ask, had this law been in effect since 2001, what would it have achieved? Padilla and al-Marri probably would have remained in military custody. Instead, civilian courts sentenced Padilla to 17 years in prison. Al-Marri, who was never accused of plotting any terrorist attack, got eight years. Richard Reid (the shoe bomber) and Umar Abdulmutallab (the underwear bomber), both foreign nationals, also would be in military custody. So would Khalid Aldawsari, a Saudi student who came to the United States to carry out terrorist attacks. Instead, Reid is serving a life sentence without parole. Abdulmutallab awaits sentencing. And Aldawsari's trial will begin this year.

Another 14 jihadist terrorists, who were foreign nationals, would find themselves in military custody instead of U.S. prisons. These would include three of the six men involved in the 2005 Fort Dix plot, one of whom is serving a sentence of life plus 30 years, while the other two are serving life sentences. It would also include three of the conspirators in the 2007 John F. Kennedy Airport plot who were foreign nationals and were extradited to the United States for trial. One of them is now serving a life sentence, another is serving a 15-year sentence, and the third, who had a lesser role in the plot and who testified against the others, received a four-year sentence. Finally, the one foreign national involved in the plot to blow up a synagogue in Brooklyn is serving a 25-year sentence.

In sum, even in the absence of the NDAA, terrorists have not escaped punishment. In fact, prosecutors obtained convictions in almost 90 percent of the terrorism-related cases. And most of the men involved in terrorist plots are now in prison for the rest of their lives.

The legal process that put them there was entirely transparent. Stripped of their political pretensions, those charged with terrorism-related crimes have been brought before the courts as ordinary criminals. Judges and juries decide their guilt not on their basis of the defendants' beliefs but on the basis of their actions. Whether indefinite detention without trial or military custody for the small number of accused would have produced a significantly better outcome is debatable.

Indeed, despite Congress' desire to see terrorist suspects hauled off to face military tribunals, the last thing the country should want is to make the suspects appear special in any way, elevating a declining al Qaeda by granting its followers the warrior status they seek. In regular courts, by contrast, the public sees justice as being done, which is especially important in communities that might be suspicious of police and sympathetic to the accused.

Intelligence is critical. The United States' current domestic intelligence collection is carried out by an assemblage of FBI, state, and local law enforcement; nevertheless, it has worked extremely well. Owing to the remarkable transformation within the FBI, improved intelligence gathering and community policing at the local level, better information sharing, and direct community support, al Qaeda has not been able to sustain a terrorist campaign on American soil. The NDAA imperils that effort by putting the FBI in an ambiguous position.

The FBI still has scars from the excesses and abuses of its domestic intelligence efforts of the 1960s and 1970s. It knows that politicians and the public can be fickle. What Congress deems essential intelligence gathering today can be denounced tomorrow. Institutions pay the price.

To maintain public support for its current counterterrorist program and to defend against future criticism, the FBI has carefully cast its efforts as criminal investigations that lead to prosecution in ordinary courts. Whatever misgivings one might have about the techniques sometimes used -- paid informants, elaborate stings, and so on -- a suspect's fate ultimately rests with an independent judge and jury, not with indefinite detention without due process.

But the new legislation's proponents see this process as inadequate. One of their principal arguments is that regular trials allow terrorist suspects to "lawyer up," thereby depriving authorities of valuable information. The evidence indicates otherwise. Those arrested in the United States or returned there for trial have proved to be treasure troves of information. They can negotiate information for sentencing leniency or other considerations. For example, David Headley, a U.S. citizen arrested for participation in the 2008 Mumbai attack, exchanged information that prevented several attacks in order to avoid the death penalty or extradition. (He is still likely to receive a life sentence.) In an arbitrary and unlimited detention system, suspects such as Headley would have less motivation to talk. Indefinite detention could even encourage coercive interrogation.

The military custody provisions of the NDAA might also complicate investigations and prosecution in other ways. Most of the would-be jihadists in the United States have been American citizens or legal permanent residents, and therefore excluded from military custody, but some of the terrorist conspiracies have involved combinations of citizens, legal residents, illegal entrants, and foreign nationals. It is unclear whether, under the NDAA, each group would be separated upon arrest or investigated individually, whether the evidence detainees provide under military interrogation would be admissible in civilian trials against the others, or whether the fact that some suspects would be held in military detention would prejudice juries in the trials of the others.

The legislation could also chill information sharing among federal, state, and local law enforcement. Local police departments might be reluctant to cooperate with federal authorities if their efforts could lead to indefinite detention without trial or military custody for some subjects. Outraged by what they see as federal tyranny, some local political authorities might even prohibit their police departments from participating in any investigations in which the subjects could be detained without trial or delivered to military custody.

The new bill could also adversely affect popular attitudes in the communities in which radicalization and jihadist recruitment occur. Since it applies only to suspects who are members of, or substantially support, al Qaeda, the Taliban, or other terrorist forces, the NDAA will alienate communities in the United States whose cooperation is vital. In more than a third of the jihadist cases since 9/11, the American Muslim community was the source of the initial tip that eventually led to an arrest. Given that such information could now lead to indefinite detention without trial on the basis of suspicion alone, that cooperation may decline.

Beyond the domestic complications, the NDAA could also damage international cooperation. One of the most remarkable counterterrorist achievements since 9/11 has been the unprecedented collaboration among intelligence services and law enforcement organizations worldwide. That is critical to national security, especially as the United States reduces its reliance on the projection of military power abroad. The new law puts that cooperation at peril. The United States' democratic allies might not be as willing to share information if doing so is perceived as collusion in filling new Guantánamos. Nor will countries be willing to extradite suspects without guarantees that they will receive civilian trials.

Finally, the NDAA muddies the endgame of the War on Terrorism. Congress laid down the legal foundation for the current campaign against al Qaeda and the Taliban one week after 9/11 when it passed the Authorization for the Use of Military Force Resolution. The AUMF authorizes the use of military force to kill or capture those responsible for 9/11 and to prevent future international terrorist attacks. The NDAA allows the detention of terrorist suspects "until the end of hostilities," as authorized by the AUMF.

It is not clear when and how the war on al Qaeda and the Taliban will end. Al Qaeda remains determined to continue its campaign of violence until Judgment Day, although its capacity to do so has diminished. And one cannot be optimistic about a negotiated settlement ending the conflict in Afghanistan. But at some point, the United States will consider its military mission against terrorism to be over. Declaring an end to the military campaign, however, would remove the country's legal basis to hold enemy combatants. Pressure would increase to release detainees. While lawyers and legislators try to work out the ambiguous post-hostilities status of detainees, those convicted of crimes in civilian courts will remain locked away in jail, serving out fair sentences.

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