Worth Repeating: The NDAA's "Mandatory Detention" Provision Doesn't Actually Bar Civilian Prosecutions

Brian Jenkins of RAND sharply criticizes the NDAA's detention provisions in this short piece at Foreign Affairs. I am sympathetic to some of Brian's arguments insofar as they defend the desirability of focusing on civilian criminal prosecution for cases arising within the United States.  But if I am reading him correctly, he is under the mistaken impression that the NDAA is more problematic on this front than it actually is. Specifically, Brian appears to believe that the NDAA prohibits the government from using criminal prosecution in cases involving al Qaeda and Taliban members linked to particular plots, requiring military detention instead.  It is understandable that someone would have this impression; it seemed to be what the bill's proponents were insisting upon, after all, and it is certainly one of the things that the bill's opponents most feared.  But as noted previously, the language of the NDAA does not produce this result.  There is indeed a section that has been described as establishing mandatory military detention in such cases, but the fact is that this section leaves the government with the option of selecting criminal prosecution as the appropriate disposition in such cases.  As I summarized things previously:

So what is really accomplished by 1022?  Well, it does require articulation of the screening/slotting processes, and sharing of them with Congress such that there might be a basis for auditing/investigation how well the procedures worked (or were complied with) in particular cases.  And there is the sheer symbolic impact of passing language widely perceived as requiring military detention in such cases; taking the civilian prosecution route may become politically more costly going forward, even though it is perfectly permissible under the terms of the actual statute.   That’s a mixed bag, really.  More careful thinking and articulation of procedures can certainly be viewed positively, whereas there’s not much good to be said for creating additional reasons to allow political consequences to influence disposition decisions.