Detention & Guantanamo

A Clarification on McKeon II

By Benjamin Wittes
Tuesday, May 10, 2011, 10:12 AM

A reader writes in to point out that, in my earlier post, I have given away the store on behalf of the administration--and, what's worse, on matters on which I wholeheartedly agree with the administration.  Concerning Section 1039, which precludes transfers of detainees to the United States, I wrote that the policy I think is ideal--the removal of the restrictions entirely--is "not going to happen." Similarly, on Section 1037, which prohibits building detention facilities in the United States, I wrote that "that ship has sailed already."  As my correspondent notes, these are big-ticket items for the administration, and their removal is thus a key policy objective without which there may be little point in engaging with McKeon. Indeed, I have been openly critical of the President in the past for not holding his ground on these things, a position I certainly do not repent.  So if these provisions are understood as inevitable, even by those like me who think they are substantively horrible and unjustifiable, folks like McKeon may simply dig in on them further.

This is a good point.  I certainly didn't mean to suggest that the administration should acquiesce to these restrictions. Rather, my point was that the administration has already acquiesced to them and that it will thus be very difficult to reverse this now. I do think as a predictive matter that some version of these provisions may well become law. But I in no way mean to suggest that that is a good thing or one about which we should be complacent. Indeed, I would love nothing better than to see the administration engage McKeon on the basis that there is a great deal in this bill that is valuable and salutary but that these provisions--along with Section 1040--have to go.