Thoughts on Rep. McKeon's Speech

By Benjamin Wittes
Monday, November 15, 2010, 11:01 PM

In posting earlier this evening this speech by Republican Rep. Buck McKeon, the incoming chair of the House Armed Services Committee, I promised thoughts on its virtues and vices. The short version is that its vices include its laughably unfair analysis of current American policy, one that does not auger well for a strong working relationship with the administration on counterterrorism issues. On the other hand, its virtues include a clear statement that McKeon wants to write framework legislation on detention. That’s a potentially very big deal, though his speech lacked any details.

Let’s deal with the vices first—not because they are more important, but because they show up first in the speech.

McKeon begins the relevant discussion by attacking what he terms “the President’s mishandling of the war on terror and the Guantanamo detainees” as “arguably the greatest example of failed leadership in national security.” He cites the fact that Al Qaeda in the Arabian Peninsula “has in its leadership a former Guantanamo detainee” and sneers that “You would think this would make the President reevaluate his Guantanamo policy; that the President would see the perils of closing Guantanamo and the risk of returning detainees to countries already riddled with ungoverned spaces and al Qaeda cells.” And he concludes from this that “the simple truth is that relaxing our Guantanamo policy puts Americans at risk.”

There is, in my judgment no merit—zero—in any of this. Obama has not been releasing people from Guantanamo at a faster rate than the Bush administration did. Quite to the contrary. At present, he is not releasing people to Yemen at all. And whether Guantanamo stays open or closes has little to do in any event with how many Guantanamo detainees go free. It has to do, rather, with the venue in which U.S. forces hold those whom they do not free. The contemporary conservative commitment to keeping Guantanamo is as stupid as was the liberal insistence on closing it. Both mistake a policy for the location of a policy.

McKeon then goes on to state his principles. “I believe we have a responsibility to defeat our enemies wherever they are, not ‘treat and release’ them as if they were run of the mill domestic criminals. My position is simple: No more mirandizing terrorists. No more trials in downtown Manhattan. No more terrorist transfers to Yemen. The American people need a new terrorist detainee policy.”

Again, this is almost entirely nonsense. To be sure, I fully agree with McKeon’s last sentence; I have been arguing for years for a new terrorist detainee policy. But as inflected by what precedes the point in this speech, well, that’s a bit of a different story. One can accuse the Obama administration of many things. But one cannot reasonably accuse it of a “treat and release” attitude towards detainees. The categorical opposition to reading terror suspects Miranda rights opposes not merely what the Obama administration has done but what the Bush administration did throughout its tenure domestically. It has nothing to do with counterterrorism. It is just a political slogan. Similarly, the ongoing effort to make it impossible ever to bring people to the United States for trial is toxic. Some people should be tried in Manhattan. And exactly who is transferring anyone to Yemen these days? If what McKeon means here is that we need to shift gears from our current policy of Mirandizing all those terrorists whom we are “treating and releasing” back to Yemen after trying in New York, I have to begin by pointing out that he is describing the policy of a country in which I don’t happen to live.

So yes, much of the relevant portion of the speech is simple demagoguery. But then, having thrown these totally unfair darts at the fictitious policies of an administration that faces genuinely hard questions, McKeon suddenly becomes constructive. Under his leadership, he says, the committee “will also focus on detainee policy. The days of U.S. courts making policy through case law must come to an end. Armed Services Committee Members will work to craft a legislative framework for terrorist detention that protects the homeland, respects the rule of law, and upholds our high ideals.”

I’ve been waiting a long time to hear the chairman of a relevant congressional committee say words like that. And while McKeon’s speech lacked any policy specifics on the issue, what he does offer has some merit. “We need to reaffirm—in statute—the authorization to use military force of 2001.” I certainly agree with that. He will “work to legislate a framework that is guided by the law of armed conflict—not the criminal justice system.” I largely agree with that too, though I would tend to prefer a framework that is not too wedded to either the criminal justice or law-or-war models but recognizes the hybrid nature of the conflict in which America finds itself. The point is that McKeon is talking about something important underneath the demagoguery. He’s talking about legislating.

In other words, while McKeon’s rhetoric is unfair, the policy he proposes may end up providing some basis for constructive discussion. It is well worth keeping an open mind.