Let me explain why this proposal is bad policy. Consider the case of Najibullah Zazi. He was arrested in September of 2009 as part of an al-Qaida conspiracy to carry out suicide bombings of the New York City subway system. The FBI arrested Zazi after they had followed him on a 24/7 basis. He began providing useful intelligence to the FBI once captured. If the mandatory military custody in the Armed Services bill were law, all of the surveillance activities, all of what the FBI did would be in jeopardy. Instead of interrogating him about his coconspirators, or where he had hidden other bombs, the FBI would have squandered valuable time determining whether Zazi was a member or part of al-Qaida or an ``associated force.'' Requiring law enforcement and national security professionals to determine whether an individual meets a specific legal definition adds a delay--most people would have to admit this. Also a waiver process takes time as it proceeds through the President and Secretary of Defense, both of whom believe it unduly complicates the ability to immediately interrogate an individual or prevent another attack. Suppose a terrorist such as Zazi were forced into mandatory military custody. Then the government could also have been forced to split up codefendants, even in cases where they otherwise could be prosecuted as part of the same conspiracy in the same legal system. Zazi was a permanent legal resident. His coconspirators were both U.S. citizens.…
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