As reported by the Atlantic, included at the end of the Senate’s version of the National Defense Authorization Act is a measure that would require that all terrorist suspects be placed under immediate military custody rather than being placed with civilian law enforcement agencies.
As it stands, the President can decide whether to place a terror suspect with the military or with law enforcement agencies, and the latter is often preferred because of their expertise in interrogation and intelligence gathering.
This measure was inserted by Sen. John McCain, who has criticized the use of law enforcement agencies in these situations because they allow terrorist suspects to be “lawyered up” despite the pressing need for intelligence. This measure has been criticized because it would force agencies like the FBI to suspend productive interrogations in order to hand suspects over to the military, and it would “pave the way for the military to conduct law-enforcement activities on American soil,” which contravenes the Posse Comitatus Act of 1878. Critics also say that the measure is broad enough to encompass American citizens who are suspected of terrorist offenses.
Jeh Johnson, the Pentagon’s General Counsel, expressed concern about “overmilitarizing our approach to the current terrorist threat,” while Republican aids insist that the military is “better-suited” because it can “detain [terror suspects] indefinitely and interrogate them without advising [them] of the right to remain silent or giving them access to a lawyer.”
This measure will be debated late-September.