General Counsel Calls for Flexibility in Detainee Cases

WASHINGTON, Oct. 18, 2011 — Recent laws and leg­is­la­tion dic­tat­ing how the Unit­ed States han­dles and pros­e­cutes mil­i­tary detainees tie the exec­u­tive branch and military’s hands and risk nation­al secu­ri­ty set­backs, not gains, Pen­ta­gon Gen­er­al Coun­sel Jeh C. John­son said today.

Speak­ing at a Her­itage Foun­da­tion forum here, John­son said Con­gress’ efforts to restrict how the exec­u­tive branch deals with detainees com­pli­cates the process and threat­ens to undo improve­ments.

“Con­gress must be care­ful not to micro­man­age, com­pli­cate and impose across-the-board lim­its on our options,” he said. “Both the Con­gress and the exec­u­tive branch must be care­ful not to impose rules that make mil­i­tary deten­tion more con­tro­ver­sial, not less.”

John­son not­ed pro­vi­sions in the 2012 Defense Autho­riza­tion Act he said lim­it government’s flex­i­bil­i­ty to han­dle detainee oper­a­tions.

One pro­vi­sion in the House bill pro­hibits DOD funds from being used to trans­fer non‑U.S. cit­i­zen detainees to the Unit­ed States. As writ­ten, the bill allows for no waivers or exemp­tions.

“Such an unqual­i­fied, across-the-board ban is not in the best inter­est of nation­al secu­ri­ty,” John­son said.

The House bill also spec­i­fies that mil­i­tary com­mis­sions, not fed­er­al courts, must be used to pros­e­cute defen­dants charged with a broad range of ter­ror­ist acts.

Deci­sions about the most appro­pri­ate forum for pros­e­cut­ing ter­ror­ists should be deter­mined by pros­e­cu­tors and nation­al secu­ri­ty pro­fes­sion­als on a case-by-case basis, John­son said.

“A flat leg­isla­tive ban on the use of one sys­tem … in favor of the oth­er is not the answer,” he said.

Anoth­er House pro­vi­sion rewrites the peri­od­ic review process for Guan­tanamo Bay detainees by man­dat­ing the use of mil­i­tary review pan­els.

John­son called the pro­vi­sion “con­trary to our best judg­ment” in large part because it undoes a care­ful­ly craft­ed nation­al secu­ri­ty team process.

“Our expe­ri­ence shows that inter­a­gency review is valu­able and pre­ferred to take advan­tage of the exper­tise and per­spec­tives across the nation­al secu­ri­ty com­mu­ni­ty in our gov­ern­ment,” he said.

The Sen­ate ver­sion of the 2012 Nation­al Defense Secu­ri­ty Act man­dates that cer­tain mem­bers of al-Qai­da or its affil­i­ates be held in mil­i­tary cus­tody “pend­ing dis­po­si­tion under the law of war.” The only excep­tion comes if the defense sec­re­tary directs in writ­ing to “give him up,” John­son said, not­ing that the bill rais­es ques­tions about who it applies to and what would trig­ger it.

The 2012 defense bud­get bill isn’t the first to dic­tate the way the fed­er­al gov­ern­ment han­dles, detains or pros­e­cutes sus­pect­ed ter­ror­ists or ene­my com­bat­ants.

The 2011 Defense Autho­riza­tion Act pro­hibits the use of DOD funds to trans­fer any Guan­tanamo Bay detainee to the Unit­ed States “for any con­ceiv­able pur­pose,” even as a defen­dant or coop­er­at­ing wit­ness in a fed­er­al pros­e­cu­tion. No waivers or excep­tions are allowed, John­son said.

Anoth­er pro­vi­sion man­dates that before any Guan­tanamo Bay detainee can be trans­ferred to a for­eign coun­try, the defense sec­re­tary must cer­ti­fy to Con­gress details about the arrange­ment. The only excep­tion is when a court order directs the detainee’s release.

Near­ly a year after the law took effect, John­son declared it “oner­ous and near-impos­si­ble to sat­is­fy.” Not a sin­gle Guan­tanamo Bay detainee has been cer­ti­fied for trans­fer since this legal restric­tion was imposed, he said.

John­son cit­ed steps tak­en over the last sev­er­al years to build a “cred­i­ble, sus­tain­able and more trans­par­ent sys­tem” regard­ing detainees. “The over­all goal should be to build a coun­tert­er­ror­ism frame­work that is legal­ly sus­tain­able and cred­i­ble, and that pre­serves every law­ful tool and author­i­ty at our dis­pos­al,” he said.

That, he said, includes oppos­ing leg­is­la­tion that com­pli­cates efforts and makes mil­i­tary deten­tion more con­tro­ver­sial.

“For this and future admin­is­tra­tions, we will oppose efforts to make mil­i­tary deten­tion more con­tro­ver­sial and restrict the exec­u­tive branch’s flex­i­bil­i­ty to pur­sue our coun­tert­er­ror­ism mis­sion,” he said.

“The exec­u­tive branch, regard­less of the admin­is­tra­tion in pow­er, needs the flex­i­bil­i­ty, case by case, to make well-informed deci­sions about the best way to cap­ture, detain and bring to jus­tice sus­pect­ed ter­ror­ists.”

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)