New rules on when FBI retains custody of detainees

WASHINGTON – The Obama administration outlined on Tuesday the situations in which the FBI, rather than the military, could be allowed to retain custody of Al Qaeda terrorist suspects who are not U.S. citizens but are arrested by federal law enforcement officers.

The new rules issued by the White House resulted from a December compromise in Congress between the administration and a majority of Republicans and some Democrats who wanted a bigger military role and a reduced role for civilian courts in the fight against terrorism.

The new law that emerged requires military custody for non-U.S. citizen members of Al Qaeda or "associated forces" involved in planning or attempting an attack on the United States or coalition partners, unless the president waives that provision.

The new rules outlined seven circumstances in which the president could place a suspect in FBI, rather than military, custody.

Military custody could be waived when it would impede counter-terror cooperation with another government or when it could interfere with efforts to secure an individual's cooperation or confession.

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.

--A foreign government will not consent to extraditing someone because the suspect would be placed in military custody.

In a Nov. 28 letter to Congress that was central to securing the compromise, FBI Director Robert Mueller said that absent changes, the new law would inhibit the bureau's ability to persuade suspected terrorists to cooperate immediately and provide critical intelligence.

Mueller told Senate Judiciary Committee hearing that it was unclear how agents should operate if they arrested someone covered by the military custody requirement hundreds of miles from the nearest military facility.