Detention & Guantanamo

Adam Serwer on Yesterday's HASC Hearing

By Benjamin Wittes
Friday, March 18, 2011, 9:31 AM

Adam Serwer has a very thoughtful piece on yesterday's House Armed Services Committee hearing, which I could not attend. Like me, Adam has come to the conclusion that there is quite a bit of common ground between the Obama administration and congressional conservatives and that there may be the basis for a deal here.

Granted, McKeon goes much further in his proposal than Obama or Bush ever did. It would strip the Attorney General of the ability to decide where to try terrorists, mandate military detention for anyone, citizen or otherwise, captured abroad or in the U.S. on suspicion of working with a foreign terrorist group covered by the 2001 AUMF, force the Secretary of Defense to personally rubber-stamp any civilian terror prosecutions, and limit the administration's ability to transfer detainees abroad. It would also scrap Obama's proposal to give detainees access to lawyers when their detention status comes up for review.

Yet Obama and congressional Republicans' convergence on detention issues overshadows many disagreements. In February 2010, when Republicans first tried to interfere with the executive branch's authority to decide where to try suspected terrorists, Attorney General Eric Holder called the move "unprecedented." Yesterday, Pentagon General Counsel Jeh Johnson called McKeon's proposal a "very thoughtful piece of work."

Both Republicans and Obama have committed to the validity of the military commissions system, the legitimacy of indefinite military detention for suspected terrorists, and the administration's authority to conduct anti-terrorism operations against organizations like the Yemen-based al Qaeda in the Arabian Peninsula, which didn't exist when the 2001 Authorization to Use Military Force was passed. In fact, while Johnson insisted that the AUMF offered adequate authority to address current threats, McKeon wants to revise that authority to give the administration more power to do so. Johnson didn't exactly reject the idea, calling it "something we have to think about."