General Counsel Calls for Flexibility in Detainee Cases

Donna Miles


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.”