3-9-2012By Adam Jacobson
Law and Security Program
In an editorial titled “Mr. Obama, preserving flexibility on terrorism,” the Washington Post lauds President Obama for issuing a presidential directive last week to mitigate the harmful provisions in the National Defense Authorization Act (NDAA), which include mandatory military custody for terrorism suspects and effectively cut the federal court system and law enforcement out of the counterterror process.
The Washington Post is right to praise President Obama for this directive. Forcing terrorism suspects into military custody would undoubtedly undermine national security. Law enforcement could be interrupted in the process of investigating terrorism cases or even interrogating suspects.
President Obama’s directive waives some of the most dangerous aspects of these NDAA provisions, but it does not go far enough. Simply saying that you will choose not to implement the law the way some in Congress wanted does nothing to prevent future presidents from returning to these policies.
Yesterday, Representative Adam Smith and Senator Mark Udall introduced legislation that would move towards fixing this problem, and preserving the role of federal courts and law enforcement in fighting terrorism. Smith and Udall issued the following statement:
“By ensuring all due process rights enshrined in the Constitution, our legislation protects civil rights and ensures national security. The bills clarify that the only options for anyone detained in the United States pursuant to the Authorization for Use of Military Force (AUMF) are Article III courts (federal) and state courts. They prohibit military commissions and indefinite detention. … Additionally, our civilian law enforcement also has a proven track record of success as demonstrated by the recent mandatory life sentence received by Umar Farouk Abdulmutallab, the ‘underwear bomber.’”
Both President Obama’s directive and Representative Smith and Senator Udall’s bill are steps in the right direction. But they need to also push back against the narrative of a never-ending “War on Terror.” Osama bin Laden is dead. We are ending our war in Afghanistan. Al Qaeda and other terrorist organizations may still be a threat, but there are smarter and more effective ways to confront them. Getting rid of the harmful NDAA provisions is only the first step.