WASHINGTON – The Obama administration outlined Tuesday when the FBI, rather than the military, could be allowed to retain custody of al-Qaida terrorism suspects who aren't 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-Qaida or "associated forces" involved in planning or attempting an attack on the United States or coalition partners — unless the president waives that provision.
As expected, the rules for presidential waiver provided flexibility that wasn't available under the initial military custody requirement.
In an explanatory document accompanying the rules, the White House said, "Our criminal justice system has demonstrated unrivaled effectiveness" in preserving and protecting U.S. national security objectives. "That system ... must continue to be an unrestricted counterterrorism tool going forward."
The new procedures outlined seven circumstances in which the president could place a suspect in FBI, rather than military, custody. National Security Council spokesman Tommy Vietor said the seven exceptions were a case of President Barack Obama fulfilling a pledge to address lingering concerns he had in December when he signed the defense authorization bill containing the rules.
Late Tuesday, three Republicans on the Senate Armed Services Committee issued a statement expressing deep concerns about the administration's rules.
"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. We are particularly concerned that some of these regulations may contradict the intent of the detainee provisions of the National Defense Authorization Act," Sens. John McCain of Arizona, Lindsey Graham of South Carolina and Kelly Ayotte of New Hampshire said.
Military custody could be waived when it would impede counterterrorism 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 they would be placed in military custody.
In a Nov. 28 letter to Congress that was central in 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 a Senate Judiciary Committee hearing that it wasn't clear how agents should operate if they arrest someone covered by the military custody requirement hundreds of miles from the nearest military facility.
In December, the Senate Armed Forces Committee chairman, Sen. Carl Levin, D-Mich., said the measure passed by Congress "has been written to be doubly sure that there is no interference with civilian interrogations and other law enforcement activities and to ensure that the president has the flexibility he needs."