Detention: Law of: Legislative Development

Five Thoughts on the Situation

By Benjamin Wittes
Friday, May 27, 2011, 11:31 AM

Here are five quick thoughts about the legislative tussling over the AUMF and detention policy following yesterday's House vote to pass the NDAA and its provisions on the subject.

First, if it was not clear before, it it is certainly clear now: There will be legislation on this matter. The question is not whether the status quo will change. It is how the status quo will change. Human rights groups and members of Congress who do not face this reality squarely will marginalize themselves from the decision points of actual policy-making. There will be legislation because one house of Congress has passed some dramatic provisions as part of a legislative vehicle that neither Congress nor the Executive Branch can afford not to have signed into law. Whatever the other house does, this language will be one pole in the negotiations that will lead to a final bill--a bill which will not emerge entirely uninfluenced by it. House Republicans want detention legislation. They're not going to get nothing. Deal with it.

Second, the public debate--which has largely focused on the House GOP's AUMF language--misses the real point. For all the yammering on this subject, and I have engaged in some of it myself, this provision is not the crux of the dispute. I am confident it would not produce a veto on its own terms. To the extent the administration has concerns with it, they are easily addressed. Indeed, as Bobby just pointed out, even House Democratic leaders are not arguing for no AUMF updating. The noise aside, the parties are simply not that far apart on this question. The differences are very bridgeable.

Third, the crux of the issue is also not about the nature of the review process for Guantanamo detainees. Both sides agree that there should be a formal review process. The administration is not seriously arguing against writing such a review process into law--nor is there any good argument against doing so. The only real question here is what the contours and details of that process should be. This is a matter on which compromise is very possible, the administration and congressional leaders can be expected to do business on this point. The compromise will be messy, but the differences will not rise to the level of a veto at day's end.

Fourth, so let's focus on the real issue here--the one that will actually determine whether there is a deal to be done or a showdown to be had. That issue is the transfer restrictions and the noxious new requirement of military commission trials for all non-citizen terrorism suspects. This stuff is just poison to the administration--and rightly so. It should provoke a veto threat--and a veto, if need be. And while I could design a way to split the baby, I suppose, I really don't want to. There is a deep principle at stake here, two of them actually. One is the authority of the executive branch to make prosecution decisions; the other is the broader need not to encumber executive flexibility in disposing of difficult detainee cases. This matter should, in my judgment, be resolved by staring match. And if the administration is really willing to veto the entire NDAA over it, it can prevail on this point--or at least make strong stand over the issue in failure.

Fifth, once one understands that it is these provisions where the differences are vast and unbridgeable--matters on which one side simply has to lose--the parameters of a plausible final bill come into focus. I've sketched them out before, but let me do it again. I will consider the conference committee a success if McKeon gets an appropriately-modified version of his unfairly-maligned AUMF provision, if a review process somewhere between the one described in the President's executive order and in McKeon's bill gets written into law, and if the transfer provisions and the bar on Article III terrorism trials for non-citizens get dropped. This is easy for me to say, since it happens to roughly approximate by view of good policy. But quite apart from that, it is also the compromise that I think is reachable and could command wide bipartisan support in Congress and support from the administration too.