The U.S. Justice Department's top national security lawyer today spoke out against a provision being debated in the U.S. Senate that would require the mandatory indefinite military detention of terror suspects.
Preserving the criminal justice system to counter national security threats, Assistant Attorney General Lisa Monaco said, is key for the Justice Department.
“It has been and continues to be critical to our success,” said Monaco, who leads the department’s National Security Division. She did not outright dismiss military commissions, saying that the debate between commissions and federal trial courts is not an "either-or" dispute.
Monaco, a panelist at an American Bar Association conference on national security in Washington, expressed concern about the military detention provision included in the National Defense Authorization Act. She said the ability of prosecutors to use as many tools as possible to thwart terror activity is in jeopardy.
Any effort to undermine prosecutorial authority, Monaco said, risks “injecting uncertainty for our counterterrorism professionals just when those same professionals should be focusing on disrupting threats.”
Senate Judiciary Chairman Patrick Leahy (D-Vt.) today spoke out against the provision, saying that top officials in the intelligence community are opposed to it.
“In the fight against al-Qaida and other terrorist threats, we should give our intelligence, military, and law enforcement professionals all the tools they need,” Leahy said in a statement. “But the mandatory military detention provision in Section 1032 actually limits those tools by tying the hands of the intelligence and law enforcement professionals who are fighting terrorism on the ground, and by creating operational confusion and uncertainty. This is unwise and unnecessary.”
Monaco and the other panel members at the ABA conference addressed a range of topics, including the emerging threat of cyber attacks, homegrown violent extremism and steps to better share information among national security officials.
“One-off” terror suspects pose an increasing challenge to law enforcement authorities, Monaco said. “These are folks who are by definition individuals who are difficult to detect and disrupt precisely because they are not part of a formal network,” she said.
The other speakers included Jeh Johnson, the Defense Department general counsel; CIA general counsel Stephen Preston; Robert Litt, the top in-house lawyer in the Office of the Director of National Intelligence; and Ivan Fong, who leads the Department of Homeland Security’s legal team.
Johnson said in his remarks that the government is “gaining a lot of credibility” with federal trial and appellate courts in the area of Guantanamo Bay detainee litigation.
Johnson nodded disapprovingly to a recent New York Times editorial that said that rulings in the U.S. Court of Appeals for the D.C. Circuit have significantly eroded the ability of a prisoner to mount a successful habeas case challenging continued detention.
In a recent case, Latif v. Obama, the appeals court split 2-1 in refusing to uphold a trial judge’s decision to grant a Guantanamo Bay detainee his freedom. The court remanded the dispute to the trial court for an evaluation of the prisoner’s credibility. Judge David Tatel, writing in dissent, said “it is hard to see what is left of the Supreme Court’s command in Boumediene that habeas review be ‘meaningful.’”
Preston, the CIA general counsel, spoke in big-picture terms trying to undercut any public perception that the agency operates outside the law. He described what he called the “pernicious drumbeat” of criticism that the CIA is a “lawless rogue.”
Preston, who has led the agency’s legal team since 2009—he left his partnership at Wilmer Cutler Pickering Hale and Dorr to join the public sector—argued today the CIA is one of the most heavily regulated federal agencies, with both internal and external controls.