now the president has a choice of whether the FBI or the military
should take custody of a terror suspect, and there's often a preference
for giving the FBI first dibs because of their expertise in
interrogation and intelligence-gathering," said Raha Wala, an analyst
for Human Rights First. "This would take away that choice and require
the military to take custody of a huge category of terrorism suspects
captured at home or abroad, which I think is very alarming."
The provision was inserted into the NDAA at the request of Sen. John McCain, R-Ariz., ranking member of the Senate Armed Services Committee,
according to Senate aides familiar with the panel's deliberations.
McCain has long been a proponent of putting terrorism suspects into
military custody and trying them before military commissions rather than
in civilian courts.
Like many of his fellow Republicans, McCain
fiercely criticized the Obama administration for having FBI agents
detain and question would-be bomber Umar Farouq Abdulmuttalab, who
attempted to blow up a packed airliner on Christmas Day 2009.
person should be tried as an enemy combatant; he's a terrorist," McCain
said on CNN in January 2010. "To have a person be able to get lawyered
up when we need that information very badly betrays or contradicts the
president's view that we are at war."
Rachael Dean, a spokeswoman
for McCain, declined repeated requests in recent weeks to comment on the
lawmaker's support for the new provision.
The measure seems
certain to reignite the heated political debate over the Obama
administration's detention policies. Obama recently reversed his
campaign pledge to close down the Guantanamo Bay detention facility and
instead acknowledged that it will continue to hold terror suspects
indefinitely. Obama also reversed an earlier vow to try Sept. 11
mastermind Khalid Sheikh Mohammed in a civilian court.
those shifts, many Republicans argue that the president is soft on
terror because of his stated preference for having FBI agents take
custody of terror suspects and for trying militants in civilian courts
whenever possible. Republicans were particularly incensed that FBI
agents read Farouk his Miranda rights and gave him access to a lawyer.
Sen. Susan Collins, a moderate Republican from Maine,
said in January 2010 that the Obama administration had made a serious
mistake by treating "a foreign terrorist who had tried to murder
hundreds of people as if he were a common criminal."
political wrangling, many legal experts believe the new measure would
significantly change the legal contours of the broader war on terror.
Wittes, a senior fellow at the Brookings Institution, argued in a
recent essay that such a change could be "profoundly disruptive" to
American counterterrorism efforts. Wittes noted that a suspect arrested
by the FBI in the midst of an unfolding terrorist plot would have to be
transferred to military custody even if the militant was providing
useful information about the planned attack, potentially setting back
the investigation significantly.