U.S. law enforcement officials had feared that the law on sending alleged al-Qaeda members to military custody would inhibit their ability to get suspects to cooperate. The White House threatened to veto the measure, part of the 2012 Defense Authorization Act.
In December, a compromise was reached between Sens. Carl Levin (D-Mich.) and John McCain (R-Ariz.), requiring military custody for non-U.S. citizens who are suspected members of al-Qaeda or its affiliates and who have planned or carried out an attack against the United States or its coalition partners — unless the president waives that provision.
On Tuesday night, Obama issued the rules for the waivers, which are so broad that the transfer of any suspect into military custody is now likely to be rare.
“This is essentially a 3,450-word line-item veto, rendering the mandatory military detention provision mostly moot,” said Tom Malinowski of Human Rights Watch.
The order waives the military requirement in seven situations, including when following it will impede counterterrorism cooperation or discourage an individual from cooperating or confessing; when a foreign government will not extradite a suspect if the United States places him in military custody; when a suspect is a legal permanent resident arrested for actions in the United States; and when an individual has been arrested by state or local law enforcement.
In addition, the attorney general can decide on more reasons to issue waivers.
McCain, Sen. Lindsey O. Graham (R-S.C.) and Sen. Kelly Ayote (R-N.H.) said in a statement that the new waiver regulations might contradict the intent of the legislation passed last year and “will require a hearing in the Senate Armed Services Committee.”
In other news Tuesday, the first high-value detainee at Guantanamo Bay has reached a plea agreement with prosecutors to serve no more than 25 years on war crimes charges if he meets his part of the deal, according to newly released documents and military officials.
Military court documents provide a limited window into the pretrial agreement that Majid Khan, a former Baltimore resident, signed this month.
A senior Pentagon official called the convening authority has agreed as part of the deal that he will not approve a sentence in excess of 25 years, officials said. Khan is likely to serve considerably less than 25 years, but the exact term specified in the plea remains sealed. Among other provisions, he will have to testify against other detainees, according to the officials, who would discuss the issue only on the condition of anonymity.
Khan, a Pakistani citizen and legal resident of the United States, was captured in Pakistan in 2003 and later held by the CIA at a secret prison overseas. .
He allegedly planned terrorist strikes on the United States with Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks. Mohammed and Khan, a graduate of Owings Mills High School in suburban Baltimore,intended to target underground gasoline storage tanks, according to the military.
Staff Writer Julie Tate contributed to this report. Finn reported from Guantanamo Bay, Cuba.