Although President Obama has failed to fulfill two campaign promises related to the war on terror — finding a quick exit strategy in Afghanistan and closing the Guantanamo Bay prison — he managed to carve himself some wiggle room when it comes to handling terror suspects.
Without the usual headline-grabbing clash so prevalent on terrorism-related issues during his first three years in office, Mr. Obama late last month quietly grabbed back from Congress the power to decide whether to allow al Qaeda suspects arrested on U.S. soil to be held by the FBI and tried in civilian courts rather than immediately handed over to the military.
With little fanfare, Mr. Obama issued a presidential policy directive that swept away much of a law passed in December after months of furious debate that would have given the military the right to step in, question and indefinitely hold any al Qaeda suspects caught on U.S. soil.
Under the presidential order, Attorney General Eric H. Holder Jr., after consulting the defense secretary and intelligence officials, would have the right to determine where all detainees arrested in the U.S. are held and tried, instead of the military.
With the support of Sen. Carl Levin, Michigan Democrat and chairman of the Senate Armed Services Committee, lawmakers delayed the must-pass defense authorization bill for months over the issue, eventually passing a bill that aimed to give the military first crack at holding suspected al Qaeda terrorists caught in the U.S.
But late in December, faced with a veto threat from President Obama and time running out on last year's legislative calendar, Mr. Levin, as well as Republican Sens. John McCain of Arizona and Lindsey Graham of South Carolina, rewrote the language to give the president the ability to interpret or waive key aspects of the law.
Even though Obama administration officials still indicated deep reservations about the law, the president signed it.
The presidential directive undid months of work by a bipartisan group of senior lawmakers on the House and Senate military committees, but there seemed to be little outrage or reaction from those who just two months ago spent hours railing about the issue on the Senate floor.
"Although we have not been able to fully examine all the details of these new regulations, they raise significant concerns that will require a hearing in the Senate Armed Services Committee," Mr. McCain, Mr. Graham and Sen. Kelly Ayotte, New Hampshire Republican, said in a joint statement.
"We are particularly concerned that some of these regulations may contradict the intent of the detainee provisions of the National Defense Authorization Act passed by Congress last year," they wrote.
When asked about the issue, Mr. Graham said he didn't want to "micromanage" law enforcement officials on how to do their job and was most concerned about protecting the opportunity to glean intelligence from al Qaeda suspects, which he said is jeopardized when state and local law enforcement agents read them Miranda rights.
Behind the scenes, those involved say they weren't surprised that Mr. Obama used a waiver they inserted into the bill to blow a gaping hole in its intent, noting that they were forced to add the waiver language in order to strike a deal with Democrats to win passage of the overarching bill.
"The objective of the legislation was to get the executive branch to take seriously military custody as a legitimate option if the suspects are al Qaeda and they are involved in planning an attack," a senior Senate aide explained.
Rep. Adam Smith of Washington, the ranking Democrat on the House Armed Services Committee, and Sen. Mark Udall, Colorado Democrat, are trying to tie the hands of Mr. Obama's successors and have introduced a bill that would ensure any al Qaeda member captured in the U.S. would be tried in a federal court, not handed over to the military.
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