- The Washington Times - Tuesday, February 28, 2012

President Obama on Tuesday night issued a sweeping exemption of future terrorism suspects from a congressional requirement that they be held in military custody, part of last year’s hotly contested defense authorization law.

The president’s action gives U.S. civilian criminal investigators broad authority to manage the cases of terrorism suspects who are not U.S. citizens but are arrested by federal law enforcement officials. The law passed late last year encouraged that suspects be placed in military custody in such cases.

When Mr. Obama signed the law on Dec. 31, he attached a statement saying that he intended to disregard part of the law that he believed interfered with his presidential powers. Republican lawmakers had included the provision in the defense authorization act.

The president’s order gives the FBI and other civilian authorities the primary job of prosecuting terrorism arrests in the U.S.

Placing such suspects in military detention would be at the discretion of the attorney general in a limited number of cases.

Mr. Obama’s order directs that the attorney general’s office “shall exercise this authority in consultation with other senior national security officials, including the secretaries of State, Defense, Homeland Security, director of National Intelligence, chairman of the Joint Chiefs of Staff, director of the Central Intelligence Agency, and director of the Federal Bureau of Investigation, as well as any other official I may designate.”

When he signed the law, Mr. Obama said he would “not authorize the indefinite military detention without trial of American citizens. I believe that doing so would break with our most important traditions and values as a nation.”

Among the individuals to whom the waivers would apply are lawful permanent U.S. residents who were arrested in the U.S., and suspects who are arrested by state or local police.

Military detention would be an option in limited cases, largely at the discretion of the attorney general and federal investigators.

The new rules detail seven circumstances in which the president could direct a terrorism suspect to be placed in the custody of the FBI, rather than in military detention. The administration could waive military custody when it would impede counter-terror cooperation with another government, or if it could interfere with gaining an individual’s cooperation.

Other exceptions to military custody could be when:

• A legal permanent U.S. resident is arrested inside the U.S. or is arrested on the basis of conduct inside the U.S.

• Military custody could interfere with efforts to conduct a trial

• Putting one of several alleged co-conspirators in military custody could interfere with efforts to conduct a joint trial.

• An individual is arrested by state or local authorities and transferred to federal custody.

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