posted on May, 18 2012 @ 12:04 PM
B. Covered Persons. For purposes of this Directive, the phrase "Covered Person" applies only to a person who is not a citizen of the United
1.whose detention is authorized under the 2001 AUMF, as informed by the laws of war, and affirmed in section 1021 of the NDAA; and
2.(a) who is a member of, or part of, al-Qa'ida or an associated force that acts in coordination with or pursuant to the direction of al-Qa'ida; and
(b) who participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
C. Attack or Attempted Attack.
1.An "attack" means the completion of an act of violence or the use of force that involves serious risk to human life.
2.An "attempted attack" means an overt act or acts beyond a substantial step when (a) performed with specific intent to commit an attack; and (b) no
further step or act by the individual would be necessary to complete the attack.
D. Application to Individuals Captured or Detained by, or in the Custody of, the Department of Defense. Any time an individual is captured or
detained by, or otherwise taken into the custody of, the Department of Defense, the requirement under section 1022(a)(1) of the NDAA will have been
satisfied, regardless of whether there has been a final determination as to whether the individual is a Covered Person, and regardless of the
authorities under which the individual is captured, detained, or otherwise taken into custody. Therefore, individuals captured or detained by, or
otherwise taken into the custody of, the Department of Defense shall not be subject to the procedures outlined in sections II through IV of this
Directive. Any subsequent law of war disposition of the individual effectuated by the Department of Defense consistent with section 1021(c) and
1022(a)(3) of the NDAA satisfies all requirements of section 1022 of the NDAA, subject to the conditions on transfer in section 1028 for any
individual detained at Guantanamo.
E. No Effect on Individuals Held by State or Local Authorities. The requirement in section 1022(a) of the NDAA does not apply to individuals
arrested by, or otherwise taken into the custody of, State or local law enforcement agencies, and the procedures and requirements set out in this
Directive shall not apply while individuals are held in the custody of State or local law enforcement agencies.
F. No Effect on Individuals Held by Foreign Governments. The requirement in section 1022(a) of the NDAA does not apply to individuals who are
arrested by, or otherwise taken into the custody of, a foreign government, and the procedures and requirements set out in this Directive shall not
apply to individuals held in the custody of foreign governments, including but not limited to circumstances where intelligence, law enforcement, or
other officials of the United States are granted access to an individual who remains in the custody of a foreign government.
II. WAIVERS TO PROTECT NATIONAL SECURITY INTERESTS
A. Statutory Authority under NDAA. Section 1022(a)(4) of the NDAA authorizes the President to waive application of the military custody
requirement under section 1022(a)(1) where doing so is "in the national security interests of the United States." Such waivers ("National Security
Waivers") apply to the requirements of section 1022 of the NDAA.
B. Protection of U.S. National Security Interests. In accordance with section 1022(a)(4) of the NDAA, and consistent with section 1022(c)(2),
which provides the executive branch with broad discretion to design implementing procedures to ensure that the requirements of section 1022 do not
interfere with various authorities necessary to disrupt or respond to terrorism threats, and to ensure that counterterrorism professionals have clear
guidance and appropriate tools at their disposal to accomplish their mission effectively, I hereby waive the requirements of section 1022(a)(1),
regardless of whether an individual has yet been determined to be a Covered Person, and certify that it is in the national security interests of the
United States to do so, when: