Ben Wittes writes that the detention provisions in the Senate version of the National Defense Authorization Act could have the impact of hampering terrorism investigations with their requirement that all Muslim terrorism suspects be forced into military custody:
So let's consider two very plausible counterterrorism scenarios and how they would interact with this bill, were it law. In the first, the FBI arrests an Al Qaeda operative domestically in the midst of an unfolding terrorist plot, and he quickly begins talking productively and giving useful information. This situation has materialized at least twice in recent years, and we can certainly expect it to develop again in the future. Absent a waiver, it seems clear that the provision would require that the FBI suspend a productive interrogation, transfer the arrestee to the military, and that the military begin things anew later on. Since the bill does not specify how long the government has to turn such the suspect over the to the military–it requires merely that the military “shall hold” the person–the government would probably be in violation of its terms from the moment of the arrest itself. It might even raise doubt as to the legality of the arrest. After all if the military “shall hold” a suspect, it follows logically that the FBI shall not hold that same suspect.
This would be profoundly disruptive in the most sensitive operational situations. The last thing the bureau needs when it pulls someone off a plane who has just tried to blow up that plane is to worry about how quickly it can turn him over the military–which might have no nearby investigative presence or detention facility.
This brings me to my second scenario, one in which the FBI has identified a suspected terrorist cell that, it believes, is plotting an attack, and it has that cell under surveillance and is trying to find out who its controllers are and explore its wider network. This scenario arises relatively frequently, and arrest is not necessarily the first thing agents do. One wants, after all, as comprehensive a sense as possible of the players and their contacts before the take-down. Often, the best option is simply to wait and watch and learn. But at least as I read this proposal, that course would be flatly illegal. Why? Because the provision is not limited to people who have actually been detained. As soon as someone is identified as a member of Al Qaeda (or some affiliate) and engaged in terrorist planning, the military “shall hold” him. The result is that, if the government wanted to comply with the law, the FBI would be obliged in this scenario to cut short its surveillance and notify the military, and the military would be obliged to conduct the arrest raid on U.S. soil. After all, if the FBI arrests the cell members itself, the military–at least for some period of time–would not be holding the covered people. The wrong agency would be holding them. This scenario should scare those concerned about the integrity of intelligence and counterterrorism operations at least as much as it should scare those who get the willies thinking about the military conducting domestic arrest operations.
Just to reiterate: Conservatives have complained, without any evidence whatsoever and nonwithstanding the emergency exemption in the laws governing Miranda warnings, that interrupting interrogations in order to read suspected terrorists their rights interferes with intelligence gathering. Their response to this is to make absolutely certain that interrogations are interrupted by a requirement that people suspected of being members of terrorist organizations are transferred into military custody.
This is culture war counterterrorism--defining policy according to the GOP's belief that all aspects of terrorism policy should be militarized because we're "at war," rather than sticking with what actually works.
