Detention & Guantanamo

Why the New Senate Detention Language Still Stinks

By Benjamin Wittes
Wednesday, November 16, 2011, 8:57 PM

The Senate's new NDAA language changes almost nothing. Yes, there are some technical adjustments, which Bobby has described in detail, and some of these may serve to lessen slightly the irrational burden this bill would put on those who have to handle detainee affairs and terrorism investigations both domestically and abroad. But the core of the tinkered-with provisions remains the same. The bill still authorizes law of war detention. It still seeks to make military detention mandatory for certain categories of cases. And it still seeks to encumber transfers of Guantanamo detainees out of American custody. The first of these is a good idea. The second two are very bad ideas. And the problem with them is not the specific language with by which the bill seeks to do this. The problem, rather, is the core policy objective. Gumming up the mandatory detention provision with requirements that seek to regulate when it applies and when it will--and will not--require an interrogation to be interrupted so that a different agency can take custody of a detainee really doesn't help. It only layers micromanagement on top of the underlying stupidity. Limiting the transfer restrictions to Fiscal Year 2012 does not make them any less counterproductive if, as Defense Secretary Leon Panetta put it in an appropriately grouchy letter, "Congress simply continues to insert these restrictions into legislation on an annual basis without ever revisiting the substance of the legislation." The problem here is not the trees, but the forest.