(National Journal) — A little-noticed provision of the National Defense Authorization Act would put all terror suspects into immediate military custody, a controversial change that would have significant legal repercussions for the ongoing war on terror.
The measure was tucked into the Senate’s version of the omnibus Pentagon spending measure shortly before Congress adjourned for its summer recess. Similar language had been in the House version of the bill, but it was stripped out after intensive back-channel lobbying by senior White House and Pentagon officials. The measure’s future will be decided when lawmakers from the two chambers meet in conference later this month to reconcile the two versions of the massive bill.
If the measure goes into effect, militants arrested while planning or carrying out a terror attack — or in the aftermath of such a strike — would be placed under military custody rather than being left to civilian law enforcement agencies like the FBI. The measure wouldn’t apply to American citizens, but legal experts believe that it is written broadly enough to encompass large numbers of terror suspects.
The provision was inserted into the NDAA at the request of Sen. John McCain, R-Ariz., ranking member of the Senate Armed Services Committee, according to Senate aides familiar with the panel’s deliberations. McCain has long been a proponent of putting terrorism suspects into military custody and trying them before military commissions rather than in civilian courts.