Detention: Law of

An Analysis of the McKeon Legislation

By Benjamin Wittes
Wednesday, March 9, 2011, 4:01 PM

House Armed Services Chairman Buck McKeon lost no time in introducing legislation in response to the President’s Executive Order yesterday. Here is a quick and dirty analysis.

A word of disclosure is in order: I was asked for last week, and gave, my thoughts on the ideas that make up this bill. The final version, which I have now seen and will post as soon as it becomes available, contains notable and important improvements over the ideas the committee staff was kicking around last week, and I'm encouraged on that basis. That said, the bill remains a mixed bag. Some of its provisions are constructive. Some of the provisions, by contrast, are far from constructive; indeed, they range from petty and unnecessary to quite dangerous. Right now, the bad still outweighs the good. My hope is that this is an opening position on McKeon's part, one that in dialogue with the administration can move in a positive direction.

In this post, I will lay out the good, the bad, and the ugly here—and then try to sketch where one might hope to find common ground between Congress and the administration.

Let’s start with the positive.

The principle contribution of this bill, in my view, is Section 7, which would both reaffirm the AUMF premise that America is at war and would affirm for the first time in clear language that the power to fight the enemy includes the power to detain the enemy. The basic idea here is a sound one, in my view. As the conflict has evolved, the specific authorization in the original AUMF has come under considerable stress, and that stress can be expected to increase as time goes on and the conflict evolves further. McKeon’s bill would shift the focus from an authorization to fight those responsible for September 11 to an authorization to fight “al-Qaeda, the Taliban, and associated forces” and would authorize both force and detention for those who “are part of, or are substantially supporting” those forces. The bill also provides a mechanism by which the Executive is required to keep Congress up to date on what forces it considers “associated forces” covered by the authorization to use force. It effectively enshrines in law the Obama administration's litigating position in habeas cases in law. While I am sure there are details to debate, this seems to me very positive and worthy of the adminsitration's engagement.

Another aspect of the bill that seems to me constructive is McKeon’s list of considerations he wishes the review panels to consider. In Section 3(b), his bill insists that a review process take into account a long series of common-sense factors—probably the factors that any review process would consider anyway. While, as I will explain, I think McKeon should go about injecting his concerns into the Executive Order rather differently from the way he does in this bill, I do think these are all legitimate factors for Congress to insist inform release and transfer judgments. Instructing the review panels to consider them makes far more sense than creating bars on transfer based on them irrespective of what the review might conclude.

Finally, the bill’s last item—which clarifies that guilty pleas are available in capital cases in military commissions--strikes me as valuable. I haven't reviewed the technical details of this provision, but it responds to a real problem: A lack of certainty under current law as to whether a defendant can plead guilty in a capital case before a military commissions. While I oppose the death penalty, a guilty plea should be no less available in a military commission as in the comparable federal court proceeding.

Unfortunately, McKeon’s bill does a fair bit more—most of it regrettable, some of it very bad.

Section 3 of the bill slaps a series of restrictions on the Executive Order review process. Most significantly, it prohibits detainees from being represented by counsel in the review system and requires that review panels be made up only of military experts in "operations, intelligence, and counterterrorism." Keeping counsel out is a real mistake. It will look terrible. It will reduce significantly the quality of the presentations the tribunals will receive. And it will heighten litigation risk. The effort to keep counsel out of the CSRT and ARB proceesses, in my judgment, significantly undermined the government's litigating position in Boumediene. I think having no counsel in these review mechanisms will, in the long run, enhance the chances that the courts will be solicitous of renewed habeas attacks on previously-upheld detentions.

Section 3 also contains a big missed opportunity. Instead of putting restrictions on the Executive’s review process, Congress should be codifying it—as modified by whatever concerns the legislature may have. Congress has undisputed constitutional power to set rules for captures. Chairman McKeon has said publicly that he thinks the review process should be legislated. Yet rather than proposing to legislate it, he is here arguing with the Executive over what review system it should promulgate. The result under the current approach, if McKeon succeeds, would be to force changes in the Executive Order—but it would still be a process authorized by Executive Order. It makes much more sense, in my view, for Congress to write the process it wishes to see into law, working off of the current Executive Order as a draft and making changes where needed. If Congress were to proceed this way, the result would be framework legislation, not an Executive Order with a bunch of isolated congressional "can't do thats" attached.

The biggest problem with the bill is Section 4—and it’s a whopper, a radical proposal that should prompt a veto of any bill to which it is attached. By its terms, Section 4 would require military detention of any individual “who is eligible for detention” under the AUMF unless the Secretary of Defense certifies that “the national security interests of the United States” require a waiver of that requirement. Once in military custody, the law would allow only two dispositions: military commission trial or long-term military detention.

To understand how broad this provision is, you have to read it in conjunction with Section 7, discussed above, which defines eligibility for detention as including anyone who is “part of” or “substantially supporting” the Taliban, Al Qaeda, or associated forces. The result is that anyone detained for virtually any activity in support of the enemy, absent a waiver from the Secretary of Defense, would have to be remanded to military custody. The bill makes no distinction between captures domestically and those abroad, between captures of citizen and captures of aliens. It thus arguably includes nearly all counterterrorism arrests in the United States for activities involving Al Qaeda. Material support prosecutions have been the bread and butter stuff of a huge number of cases both under the last administration and this one. There is no good reason why all of these cases, or even a substantial number of them, should be presumptively moved out of federal court and into an arena of great legal uncertainty. This provision could well require treating all Al-Qaeda-related domestic terrorism arrests the way that Padilla and Al Marri were treated. That is a really bad idea.

It is worth remembering that there were huge costs to the way these cases were handled. While I am sympathetic to the predicament the government found itself in in those cases, these costs should not be born when it is not necessary to bear them. In both cases, the government bought itself years of litigation. It eventually defaulted back to the criminal process by way of avoiding adverse Supreme Court opinions--a course this legislation would actually preclude (absent a waiver). And the ultimate sentences it obtained were dramatically lower as a consequence of the detours through military detention than the conduct in question warranted. To require that every case be handled in this fashion presumptively is a very dangerous move.

And, alas, it is compounded by Section 5, which both expands and makes permanent certain restrictions on transfers and releases of detainees. Section 5(a) prevents any detainee “eligible for detention” from being transferred or released into the United States. Since Section 4 seems to require the military of detention of U.S. citizens, Section 5 thus has the effect of forbidding the release of citizens into their own country. Consider, for example, the case of a U.S. citizen suspected of raising money for an Al Qaeda-linked charity. Section 4 would arguably mandate this person’s military detention and forbid his prosecution in federal court in the absence of a waiver from the Secretary of Defense. Section 5(a) would then prevent that citizen's release into the United States, even if he were, say, granted habeas relief or found by a later review process to be not a threat. This cannot be constitutional and is just begging for challenge the first time a citizen gets wrapped up in a Section 4 scenario. Given the scope of Section 4, that will not take long.

Having restricted the ability to release or transfer people into the United States in Section 5(a), the bill would turn around in 5(b) and make it nearly impossible to transfer people anywhere else. In particular, it 5(b) would forbid transfers (other than of Afghans at Bagram to Afghanistan) to any country where there has been a single instance of recidivism, subject only to a narrow waiver authority by the Secretary of Defense. To make permanent the current legislative policy of blocking transfers, indeed to expand it, would be utterly paralyzing and would guarantee that the United States holds a great many people whom neither the previous nor the current administration thinks it is in the national interest to hold.

This would, once again, greatly enhance litigation risk. Efforts to transfer detainees—in addition to being good policy, in many instances--are key to reassuring the courts that military detention is not a lobster trap with an easy-in and no out but, rather, a matter of significant and ongoing and responsible executive discretion. Section 4 creates an easy, mandatory in. Section 5 makes it nearly impossible to move anyone out. Both provisions remove executive discretion. The courts will notice, and they will respond.

There are other provisions that warrant comment, but these are the major ones. And the combination of constructive and destructive instincts the bill reflects raises a question: Is there any significant overlap between the administration’s interests and McKeon’s—overlap that might be the basis for bipartisan legislation the administration could embrace? The short answer is that it depends on how committed McKeon is to Sections 4 and 5 of this bill and how committed Obama is to maintaining the fiction that he is going to close Guantanamo.

If McKeon is really committed to requiring military detention in virtually all circumstances and forbidding releases from military detention, then there is no business for the administration to do with him, and the only thing for it to do is pull out the stops to prevent further erosion of the Executive’s latitude to handle these cases. Conversely, if Obama is going to insist that effectuating the entirely symbolic goal of closing Guantanamo has to be a feature of U.S. detention policy, then he is going to find few Republican partners of any kind.

On the other hand, if McKeon's bill really is an opening position in a negotiation and Obama is prepared to read the writing on the wall about Guantanamo, there is a possible consensus bill to be written—one that is worth sketching out because it would be a bill that would make a very positive contribution. It would have the following elements:

  • It would, as McKeon's bill does, reaffirm the AUMF.
  • It would, as McKeon's bill does, affirm explicitly that the AUMF contains the authority to detain the enemy.
  • It would, as this one does not, enshrine the review process the President has announced in statute, working off the Executive Order as a kind of draft and injecting it with McKeon’s reasonable concerns.
  • It would not attempt to mandate military detention.
  • It would not encumber releases or transfers. Rather, having created a review mechanism in which both the Congress and the President had confidence, it would permit the effectuation of the fruits of that mechanism.

The result would be a piece of legislation that (a) reaffirmed authorization for the conflict, (b) explicitly authorized detention in the context of the conflict, and (c) authorized and spelled out a review process for those detainees held at Guantanamo. Pair that with an understanding, probably non-legislative in character, that Guantanamo Bay will be the site for long-term counterterrorism detentions, and you have something like a bipartisan detention policy.

I do not know whether such a deal is possible. But the administration would be very foolish not to talk seriously to McKeon and try to find out. As chairman of this committee, he has the power to make life exceptionally difficult for the administration. And he clearly cares about this issue a great deal.

UPDATE: Link to legislation added.