Detention: Law of

McKeon II: A Quick and Dirty Analysis

By Benjamin Wittes
Tuesday, May 10, 2011, 8:15 AM

I have now had a chance to read through House Armed Services Chairman Buck McKeon's new detention and AUMF language, released yesterday as part of the Chairman's mark of the National Defense Authorization bill. The language is available on pages 130-155 of this pdf. The bill is significantly different from McKeon's earlier version, which I described and critiqued at length here. It still needs work, a lot of it, in fact. But it has improved a great deal--for which McKeon deserves a lot of credit.

In this post, I will try to describe the current bill, how it is different from the earlier version, and where it needs further changes. For organizational simplicity, I will describe the bill in the order in which its sections appear and compare these sections to the analogous ones in the earlier version. But I want to start by describing something that isn't in the bill at all and consequently represents one of its most significant improvements.

Recall that McKeon's earlier version contained a provision designed to require military detention of terrorism suspects, even those arrested domestically and even those who are U.S. citizens. I described this provision as follows back in March:

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. . . . 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. . . . 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 also mostly gone from the current bill--though an unfortunate residue of it, which I discuss below, does remain. This is a huge improvement. Rumor has it that the provision might return in the form of an amendment. Whether McKeon's bill is veto-worthy or not may at day's end depend on the fate of such an amendment.

Now, having described what's not in the bill, let's talk about what is in the bill:

Section 1033 clarifies the ability of a defendant in a military commission to plead guilty in a capital case--a matter that is now legally ambiguous. This provision has not and I suspect will not engender much controversy.

Section 1034 is an attempt to update the AUMF and to include in it the specific power to detain. It reads in its entirety:

Congress affirms that—

(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;

(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 15 1541 note);

(3) the current armed conflict includes nations, organization, and persons who—

(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or

(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and

(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 3 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

The current language is largely the same, though with some differences, as the earlier version, and it would have the same largely-salutary impact. This provision is sure to come under fire from the political left, which will argue that it is an expansion of the war just as Bin Laden has been killed. This is silly. It largely enshrines in law the administration's current interpretation of the AUMF as pertains to the scope of the conflict and the scope of detention authority in the conflict. And it would put Congress explicitly behind the power to detain the enemy for the first time. It is more of an updating of the AUMF, whose focus on the perpetrators of the September 11 attacks is requiring increasingly strained interpretation to address the combatants in today's fight, than an expansion of it. The provision seems to me very healthy--for the reasons I have given in the past.

Section 1035 requires the Defense Department to submit to the congressional armed services committees a "national security protocol" for each detainee at Guantanamo. The protocols would describe in considerable detail the rules governing each detainee's communication with non-governmental personnel--including lawyers. I have not studied this provision carefully, either in this version of the bill or in the last. It reflects a concern about detainee communications with the outside world that I don't think I especially share. And it would create a significant workload burden for the Pentagon. But it does not seem to do more than require that the rules for each detainee be written down. It does not dictate what those rules should be. So it seems, at worst, more of a nuisance than a serious policy problem. If I were the detainee bar, I might be concerned about it, as it would seem to encourage the administration to slap restrictions on attorney access--and to monitor privileged communications. But at least as I read it, it doesn't require any of that, so I'm not sure it would trouble me overmuch if I were in the administration.

Section 1036 codifies a review process for Guantanamo detainees in statute. It is dramatically better than McKeon's earlier efforts at a response to President Obama's executive order on the subject and is specifically responsive to some of the criticisms I made of the earlier provision. McKeon's earlier draft was cast as a list of things the president was forbidden to do in writing a review process, and it thus missed a big opportunity to codify the review process itself in statute. The current version, by contrast, is a fully elucidated review scheme and would thus significantly define the law of detention--particularly in combination with the authority to detain specified in Section 1034.

McKeon has also moved significantly on the substance of the review system. Whereas the earlier version required the panels to be entirely military, the new version sets up a two-tiered process in which the initial review panel is all military but the later panel is interagency. McKeon has also adopted the White House's system of full reviews every three years and file reviews every year. And while he has retained his efforts to prevent detainees from being represented by counsel in the process, giving them only a military personal representative, he has allowed outside counsel (with written permission from the detainee) to be involved by preparing written submissions. What's more, he has embedded the considerations that now prevent detainee transfers into the review process itself, as considerations for review panels to look at when reviewing a detainee's case. McKeon's review process is still different in material respects from the White House's, and less generous, to be sure. On some matters, it is not the way I would do things. But it is not unreasonable either. It is, rather, a pole in a legitimate debate about how generous the review mechanisms should be for detainees who are lawfully held and whose release is therefore a discretionary act. Moreover, the value of the codification itself would be substantial. McKeon has moved very far and very constructively on this point. I should think that would be taken as a sign of good faith and that between his version of the review system and the administration's, there is room for business to be done.

Section 1037 is a bar on spending money in fiscal year 2012 to build facilities in the United States to hold Guantanamo detainees. This is unfortunate, but it is also a ship that has sailed already. Guantanamo isn't closing, and both the administration and Congress know it.

Section 1038 bars the use of Defense Department fiscal year 2012 money "to permit any person who is a family member of an individual detained at Guantanamo to visit the individual at United States Naval Station, Guantanamo Bay, Cuba." This is actually a softening of the earlier version, which flatly prohibited family visits. I'm not sure why McKeon feels strongly about this matter. It's not like the Pentagon is allowing family visits, after all. But it's harmless enough--if a bit mean.

Section 1039 bars the use of the fiscal year 2012 funds to transfer detainees in military custody at Guantanamo or elsewhere to the United States or free them here. It would thus effectively preclude criminal trials of people detained by the military overseas. This provision too has actually seen dramatic improvement. It used to be a permanent bar, and the earlier version used to operate--in combination with the language requiring military detention--to prevent citizens and those arrested domestically from facing criminal trial as well. That said, it is is still a very bad idea that would effectively impede movement between the military and criminal systems. It should be altered further.

Ideally, the right policy outcome here would be to remove all such restrictions. One doesn't have to be John Yoo to believe in maximal executive latitude concerning how to dispose of any given detainee's case (assuming that detainee is lawfully held)--and criminal trial should certainly be an option for some detainees. Unfortunately, however, the ideal here is not going to happen. And there is an obvious compromise: If McKeon wants to leave in place transfer restrictions pertaining to Guantanamo detainees, that's one thing; it merely preserves the status quo, however unfortunate that status quo is. But the restrictions should not apply generally to anyone caught by the military overseas and critically, should not apply to future detentions in general.

Finally, Section 1040 retains the current set of transfer restrictions to other countries for those Guantanamo detainees who clear the review process in fiscal year 2012--including an all-but-impossible-to-surmount restriction on transfers to countries with any history of detainee recidivism. In light of the very considerable progress McKeon has made on the review system, I'm not sure I understand this section any longer. The considerations that make up the certification from the Secretary of Defense that it requires are all now embedded in the review process itself. So at one level, it is simply redundant of the review system the bill sets up. At another level, it isn't redundant at all. Making the SecDef sign a certification is a big deal, after all, so it will effectively operate as a lever through which to make the Secretary of Defense personally responsible for every result the review mechanism yields. As such, it would gum up the review system that the bill would elsewhere create. This seems wrong. If the review system is tough enough and serious enough, there is no reason to have an additional set of hurdles to clear once it determines that a given detainee should be transferred. Otherwise, the review system is just a procedural game.

All in all, McKeon deserves no small credit for the progress he has made on this bill. While it needs further work, it is approaching the point at which the value of its positive points will exceed the negative value of its downsides. The key questions now are how key senators like Carl Levin will react, what position--if any--the administration will take, and whether Democrats will continue to engage constructively (as ranking member Adam Smith clearly has) or whether they will sit this one out under pressure from the base.

Bottom line: I'm encouraged.