The Obama administration, responding to restrictions imposed by Congress, issued guidelines late Tuesday on when the FBI can take custody of newly arrested terrorism detainees.
It's clear the federal government intends to squeeze as much flexibility as it can from the restrictions included in the National Defense Authorization Act for Fiscal Year 2012 aimed at giving the military control of those detainees.
What to do with captured terrorists has divided Congress. The issue came to a flash point after the arrest of Umar Abdulmutallab, the so-called “Underwear Bomber,” who attempted to detonate explosives on a Detroit-bound flight from Amsterdam.
Some Republicans called to have Abdulmutallab tried before a military commission and declared an enemy combatant. Some Democrats pushed for him to be tried in civilian court, where he eventually pleaded guilty and was sentenced to life in prison.
The new law requires that the United States military take custody of non-U.S. citizens closely linked to al-Qaida who have helped plan or carry out an attack against the U.S. or one of its coalition partners. But under the regulations issued late Tuesday, that won't happen instantly.
"A rigid, inflexible requirement to place suspected terrorists into military custody would undermine the national security interests of the United States," says the policy directive issued by the White House.
Under the new procedures, a federal agent who suspects that a terrorist might fall under the rules must notify the U.S. attorney general. The suspect could be transferred to military custody only with the approval of the attorney general, chairman of the joint chiefs, director of national intelligence, and the secretaries of the State, Defense, and Homeland Security departments.
Even then, the suspect might be transferred back to civilian custody to be put on trial, the rules say.
The law also gives the president authority to waive the military custody requirement for individuals or entire categories of cases. President Obama has issued waivers in advance for certain situations, including times when "placing a foreign country's nationals or residents in military custody will impede counterterrorism cooperation," or when a foreign government refuses to extradite a suspect to the U.S. if that would mean placing the suspect in military custody.
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