Obama directive waters down military custody for terror detainees

President Obama nullified major provisions of the 2012 Defense Authorization law on Tuesday that would have mandated military custody for terrorist suspects.

In a directive issued Tuesday evening, Obama cited national security interests as he gave federal law enforcement power over the military to investigate and prosecute terrorism cases.


The directive is not a big surprise, as the president threatened to veto the National Defense Authorization Act (NDAA) last year over the detention provisions before signing the bill after concessions were won that gave him more authority over detention. Obama signaled he would use the authority in a signing statement issued in December.

“A rigid inflexible requirement to place suspected terrorists into military custody would undermine the national security interests of the United States, compromising our ability to collect intelligence and to incapacitate dangerous individuals,” Obama wrote Tuesday.

The directive states that until the administration determines a suspect should fall under military custody, federal law enforcement will continue to operate normally, and that a transfer may only happen if it’s clear that it wouldn’t disrupt federal law enforcement and intelligence-gathering activities.

The order also waived military custody in a number of instances, including when placing a suspect there would harm counterterrorism efforts in the detainee’s home country, when a foreign government says it might not extradite under military custody and when individuals are U.S. permanent residents arrested in the United States.

The directive also states again that the detention provisions do not apply to U.S. citizens, an issue that sparked protests on both the left and the libertarian right after the bill was passed.

Obama’s order is likely to rile Republicans who have butted heads with the administration on how to handle terror suspects. Critics of Obama’s detention policy have attacked him for wanting to move detainees out of Guantánamo, and they have opposed civilian trials for terror suspects.