Provision Would Shift Terror Cases to Military

A dangerous threat to customary American law, individual rights would be scrapped for military-led investigations and trials

A provision in the Senate’s version of the omnibus Pentagon spending measure shortly before Congress adjourned for its summer recess would shift all terror suspects into immediate military custody, dodging the civilian authorities traditionally tasked with such cases.

A similar provision was tucked into the House version of the bill, but was eliminated. It will be decided upon later this month when Congress meets to reconcile the two versions.

Under the new law, arrested terror suspects would be placed under military custody rather than being left to civilian law enforcement agencies like the FBI.  As written, measure wouldn’t apply to American citizens, but it would put the rights of large numbers of terror suspects at risk and has the creeping potential of being used to justify further abridgments of individual rights, possible against Americans.

The provision was written and included at the behest of Senator John McCain (R-AZ) who criticized the Obama administration for giving Umar Farouq Abdulmuttalab – the failed Christmas Day/underwear bomber – to the FBI. “That person should be tried as an enemy combatant; he’s a terrorist,” McCain said on CNN in January 2010. “To have a person be able to get lawyered up when we need that information very badly betrays or contradicts the president’s view that we are at war.”

There isn’t really any legal justification for pushing criminals into military commissions other than to curtail the full exercise of their individual rights under a civilian trial. McCain’s aversion to letting accused persons “get lawyered up” reflects a deep disdain for the rule of law.

If agreed upon by Congress, the law would presumably go into effect without a veto. The Obama administration has shown similar disdain for providing terrorism suspects with legal recourse or access to council: he has reversed his initial stated aims of closing Guantanamo Bay and trying Khalid Sheikh Mohammed in a civilian court, instead opting to continue to hold detainees indefinitely without trial, giving some access to military commissions.

It would be a drastic shift away from customary American law, which bars the military from conducting law-enforcement activities on American soil under the Posse Comitatus Act of 1878.  The military would be obligated to take over domestic investigations on terror suspects, long understood to be a threat to freedom.

There is some objection, though. Pentagon General Counsel Jeh Johnson said in a speech to the American Constitution Society for Law and Policy in July, “There is danger in over-militarizing our approach to the current terrorist threat. We must guard against the impulse to automatically send into military custody every terrorist, every alleged terrorist, particularly those arrested on American soil for acts that violate American law.  Our military is the most powerful in the world … because of the limits we place on its ability to reach into the other areas of national security typically occupied by civilian law enforcement.”

Author: John Glaser

John Glaser writes for