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Analysis of the McCain Legislation

Benjamin Wittes
Saturday, March 12, 2011, 1:32 PM
I promised Thursday night to write up comments on the new legislation that has emerged in the Senate. Let me start with the proposal by Senator John McCain on detention rules. This bill, introduced by Sens.

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I promised Thursday night to write up comments on the new legislation that has emerged in the Senate. Let me start with the proposal by Senator John McCain on detention rules. This bill, introduced by Sens. McCain, Lindsey Graham, Joseph Lieberman, Saxby Chambliss, Kelly Ayotte, and Scott Brown, is basically a Senate version of the bill that House Armed Services Chairman Buck McKeon introduced the previous day--about which I wrote a lengthy analysis here. As I have already addressed the McKeon legislation in some depth, I will not rehash all of the points I made in that post about its virtues and vices. Rather, I will here describe how the McCain legislation is similar to, and different from, the McKeon proposal. Broadly speaking, the McCain bill has similar policy ambitions to the McKeon bill--for good and ill. It too would put limits on the review process the President has created. It too would reaffirm the AUMF and codify in statute that it contains some detention authority. It too would mandate military detention for terrorist suspects absent a waiver by the Secretary of Defense. It too would make permanent restrictions on transfers from Guantanamo that now encumber the Executive Branch in disposing of Guantanamo cases. It too would prohibit the use of federal money to build alternative detention facilities in the United States. And it too would clarify that the accused can plead guilty in capital cases in military commissions. In some of these areas, it would do these things differently from the way the McKeon bill would do them. Most of the time, these differences are subtle, and I will try to flesh them out here. In one area, however, the difference is dramatic--and, unless I am misreading McCain's bill, it would actually require a significant bolstering of protections for detainees around the world captured in the future. Concerning the reaffirmation of the state of armed conflict and the authority to detain, the McCain bill is somewhat more ambitious than the McKeon proposal and will, I suspect, engender greater anxiety in the administration. The McKeon bill would essentially codify in law the Obama administration's litigating position in habeas cases--that is, that the government has the authority to detain those who are "part of" or "substantially supporting" Al Qaeda, the Taliban or "associated forces." The McCain bill, by contrast, does not mention "associated forces" but, rather, "affiliated groups." It specifically says the authority exists "regardless of the place of capture." And the definition of the detainable class is different as well. In the McCain bill, the president may detain a person who "has purposefully and materially supported hostilities"--the standard the D.C. Circuit is using--as well as one who "was a member of, part of, or operated in a clandestine, covert, or military capacity on behalf of" an enemy group. I don't have strong feelings regarding which language is preferable; in some ways, I prefer the McCain language, which has greater specificity. I feel confident, however, that the administration will much prefer codification of its position--which it considers fully consistent with law of war principles--to a different standard which is arguably broader. In any event, I see this provision as essentially constructive. Between the McCain group, McKeon, and the Obama administration, there is a dispute only over wording details concerning the scope of detention authority. This strikes me as very promising and a genuinely plausible basis for Hill-administration collaboration on detention policy. Like the McKeon bill, McCain's proposal contains a requirement of military custody for future captures covered by the AUMF, subject to a waiver by the Secretary of Defense. The provision is highly objectionable for the same reasons as I laid out in my post about McKeon's bill. It is, however, somewhat different from McKeon's version in ways that make it both marginally more and marginally less troubling. I say marginally more, because McCain's definition of the detainable class specifically applies "regardless of the place of capture." As a result, it applies more clearly than does McKeon's bill to domestic captures--which is at least somewhat, perhaps unintentionally, ambiguous on this point. On the other hand, McCain's bill gives the Executive Branch modestly more flexibility in disposing of military detention cases. McKeon allows only long-term detention or military commission trials for those for whom it mandates military detention. McCain, by contrast, also allows "transfer for trial by an alternative court or competent tribunal having lawful jurisdiction" and repatriation or transfer to third countries--which would seem to grant more flexibility on the back end. McCain's version, in other words, theoretically does not prohibit civilian trials or transfers abroad, as long as initial detention (and presumably interrogation) is conducted by the military. This approach seems less objectionable than McKeon's, but it's still got two very big problems. The first is that it would still yank a huge number of bread-and-butter material support cases out of the criminal justice system--which handles them just fine--and put them as an initial matter in the military system, at some significant risk to the long-term prospects of a successful criminal case. The second is that the language of the bill also makes its flexibility contingent on "the availability of appropriations" and Congress has slapped appropriations restrictions on both civilian trials and overseas transfers. Indeed, the very next section of the bill makes permanent certain restrictions on using federal money to transfer detainees--restrictions that now make it nearly impossible to move anyone out of Guantanamo Bay. These transfer restrictions are broadly similar to those in the McKeon bill, save that they don't extend the transfer restrictions to non-Afghans held at Bagram. What's more, another bill in the package introduced on Thursday--this one by Graham and cosponsored by McCain--would prohibit the use of federal money to prosecute the 9/11 conspirators in federal court. The result is that the apparent flexibility of the McCain bill on this point could be something of a mirage in practice, at least with respect to current detainees. Like the McKeon bill, the McCain legislation also contains a response to President Obama's Executive Order establishing a review procedure for Guantanamo detainees. McCain's bill is both structurally and substantively different from McKeon's on this point. On a structural level, McKeon's bill acts by prohibiting any review process from containing certain features--like lawyers for detainees--and by requiring it to contain others. It would thus preclude the Executive Order's enforcement to the extent it conflicted with its terms. McCain's bill, by contrast, simply requires the submission to Congress within 180 days of review procedures consistent with certain broad parameters. These are, in the main, broadly reconcilable with the Executive Order or would require only minor adjustments to it. It contains no bar on counsel for detainees, importantly. And its only major requirement that is irreconcilable with the Executive Order is that the review panels be composed of "military experts in military operations, intelligence, and anti-terrorism matters"--whereas the Executive Order currently imagines a more interagency panel. It is not hard to imagine a compromise between the McCain group and the administration that could lead to the codification of the review process--which would be very healthy, in my opinion. It is a bit harder to imagine a meeting of the minds between the administration and McKeon on this point. As I mentioned above, in one conspicuous respect, the McCain bill actually outflanks Obama from his Left--probably unintentionally. McCain's bill contains an additional review requirement, one requiring the administration to set forth within 90 days "procedures for determining the status of unprivileged enemy belligerents under the custody or control of the United States who are captured after the date of the enactment of this section, regardless of the place of capture." These procedures, the bill requires, must include a military judge to preside at the hearing and make status determinations, and a military lawyer for the accused. The provision is not limited to those held at Guantanamo Bay. I think, but I'm not sure, that this provision is designed to answer the question of what process the law should afford to the detainees whose military custody the bill would elsewhere require, as discussed above. If so, it is very sloppily done. And at least as I read it, would have what I think is a giant unintended side-effect: It would require that all detainees captured or held anywhere in the world get a military lawyer and a status hearing in front of a military judge. If McCain and his cosponsors are serious about this, they will, of course, become immediate heroes to the human rights community--who have been complaining, for example, that there are no lawyers at status hearings at Bagram. If they don't mean to do this, they probably need to look at their language again--or someone should tell me how I am misreading it (which is also a possibility).

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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