Thoughts on Thursday's HASC Hearing

I have now had the chance to go over a transcript of Thursday's House Armed Services Committee hearing on detention policy, at which Pentagon General Counsel Jeh Johnson and Deputy Defense Secretary William J. Lynn III both testified. Video of the hearing is available here. Chairman McKeon's opening statement is available here. The following are some thoughts and key excerpts. I am, after reading the transcript, in full agreement with Adam Serwer that the hearing reflects considerable convergence between the Obama administration and conservatives--particularly if one reads between the lines and imagines current positions as early stage negotiating positions, rather than end-stage policy red lines. Yes, there are things that separate McKeon and the administration--some of them very big things. But McKeon at this hearing clearly signaled flexibility and a desire for bipartisanship. Ranking Member Adam Smith clearly signaled a desire to work with him on legislation. And Johnson and Lynn clearly signaled an openness to some of the basic ideas with which McKeon is working. In his opening statement, McKeon made clear that he supports setting up a review process of some kind, but that he wants Congress to play a role in establishing it and that he has anxieties about the specific system the administration promulgated in its Executive Order--specifically about the role attorneys are slated to play in that process:

It's time for Congress to show leadership in this area and not continue to leave it to the courts to define our enemies and circumscribe the parameters of war. While I support an administrative review process designed to ensure the continued detention of each Guantanamo detainee as necessary, I have significant concerns about the review process established pursuant to the president's executive order issued last week. Detainees currently have nearly unlimited access to lawyers for their habeas cases in federal court. According to personnel at Guantanamo, there were over 1,400 legal visits to detainees in 2010. These cases are taking years to resolve, involve intense resources, and necessitate hard questions regarding how to protect sensitive intelligence sources and methods.

I'm concerned that by involving lawyers in the administrative review process, what is supposed to be an administrative evaluation of the threat posed by the detainee will turn into yet another opportunity for lawyers to embroil our military in endless litigation.

. . .

I was heartened by the president's speech at the National Archives in May of 2009 when he said that he was committed to working with Congress to tackle these challenging questions. I've been very disappointed that those have turned out to be empty words and that the president has decided instead to go it alone.

Ranking Member Smith then followed with warm words for McKeon's efforts, some sharp criticisms of the bill he introduced, and promises to continue working together. His statement too reflects that Congress needs to be more involved in the process of writing the detention rules. President Obama, he noted, has

acknowledged the fact that we were going to need military commissions, and even acknowledged the fact that there would going to be some people that we were going to have to hold without trial.

But the president also very much emphasized that in doing that, we need to follow the law and we need to have a clear process in place for doing that. And I agree that that needs to be an executive and legislative branch priority and that the two of us have to work together, the two groups have to work together to make that happen.

In a later part of the hearing, Smith said explicitly that he agrees that legislation is necessary. So we start with a basic agreement between McKeon and Smith that Congress should be involved in writing the legal framework for detention--and considerable disagreement about some of the terms of that framework. Lynn then discussed the president's Executive Order and the lifting of the freeze on military commissions. He objected to the ban Congress has slapped on transferring detainees to the United States for trial in federal court. And he briefly mentioned the administration's new commitment to Protocol II and Article 75 of Protocol I. At this point, the following key exchange took place between Rep. Mac Thornberry of Texas and Johnson--one that I think is particularly revealing:

THORNBERRY: Thank you, Mr. Chairman. And, Mr. Johnson, I would like to start out on the Authorization for the Use of Military Force, because I think that is a basis upon which a lot of the rest of this depends. The resolution, which was passed September 14, 2001, talks about those who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001 or harbored such organizations or persons. Surely, as 10 years has passed and Al Qaeda and other groups have evolved, it becomes increasingly difficult for you to to authorize various actions that most of us agree need to be taken to protect the country and relating it all back to the attack of September 11.  Is that true? JOHNSON: Congressman, that's a very good question. Thank you for that question. When I assess the legality of our operations against Al Qaeda and its affiliates, I look to the language you read as well as our definition of detention authority that we put out March 13, 2009, which I think is useful in informing our military activities and operations generally. That definition refers to associated forces, which is a well-accepted, recognized interpretation in the law of war. That said, I will agree with you that the conflict against Al Qaeda is evolving because that organization is evolving. It is more decentralized now than it was 10 years ago. I think that the -- the current legal interpretations of the AUMF that we have and that we've used, which are solid, are sufficient to address the existing threats that I have certainly seen and that I have evaluated. So I think it's worked so far. I believe, however, that we should carefully look at the language in the chairman's bill and in the Senate bill which in effect, you know, reauthorizes military action, and evaluate it and have a serious discussion about it. I'm inclined to say that the existing authority is -- is sufficient, but I think this is a serious discussion to have. THORNBERRY: Well, as you well know, the D.C. Circuit, in the Bihani case, was looking for statutes to--to help scope the executive's detention authority. And they looked at the Military Commissions Act, but as they recognized, we have the legal authority to detail under AUMF greater than those individuals that we can prosecute under the Military Commissions Act. And so I guess the obvious question -- you just mentioned the policy you use includes the word "Associated Forces." Would it not be a good thing to put "Associated Forces" into a renewal of the authorization for the military force? And doesn't that give you and the courts a stronger basis upon which to make decisions rather than a policy, to have it actually in statute? JOHNSON: Congressman, I don't have an administration position for you on that. But I think that that is something that we should seriously think about. THORNBERRY: Well, I hope we can do more than seriously think about it because it concerns me that, as we go further and further from 9/11, that the stretch back to those who planned, authorized, committed or aided in that--those particular attacks on that particular day is going to be more challenging. And as I mentioned, the way that Al Qaeda and other groups are moving around the world and evolving is going to require either that we stretch language beyond real meaning or that we try to update our laws to keep track of the changes that are happening in the world. And I hope we can -- can come to agreement on that.

There's a lot of signalling going on here, in my opinion. Johnson very conspicuously does not state opposition to what McKeon and his Senate counterparts want to do: reaffirm the AUMF and apply it specifically to detention. He acknowledges the problem to which Thornberry refers, the evolution of the conflict away from the perpetrators of 9/11. And while he insists that current authorities are sufficient--which he has to do, seeing as how he is relying on them for current operations--he says publicly that McKeon's proposal is something the administration "should seriously think about." Smith then elicits from Johnson some of the administration's concerns about the McKeon bill, though Johnson seems to take care not to be too critical:

I've looked at the bill that was offered last week pretty carefully at this stage. One of the things that I have concerns about when I read it was the provision that said that anyone who was eligible for detention under the AUMF must be put in military custody, unless the secretary of defense agrees to give him up. And just the phrase "eligible for detention under the AUMF," and there was another piece of the bill that included in that definition supporters, people who are not part of the enemy, but supporters of the enemy would be swept up by that provision. So I -- I have some concerns about -- about the breadth of that language. I suspect that it would lead to some--it would give us litigation risk, without a doubt. And my more general comment is . . . there are a number of . . . provision in the bill that I think are things that we -- we ought to take very and think about and carefully consider. I think it was a very thoughtful piece of work. The two other comments that I have though is, as this conflict evolves the way it's evolving is let's not take options away from the military and our national security apparatus to meet those threats. Let's not take away the Article III option; let's not take away the ability to transfer somebody to a particular place for reasons of national security. Don't -- don't restrict the military's options, as we deal with this evolving threat.

In response, McKeon bent over backwards to explain that the terms of his bill are not written in stone:

Let me just say something about the bill that we introduced last week. That was a start of a process. I mentioned in my opening statement that the president had talked to me earlier and talked to me about working together. I had hoped that that would happen before the executive order was issued. It kind of moved up the process on our bill. I would have loved to have had us all sit down together and come out, right out of the chute, with a bipartisan bill. But we're just starting the process. So we will have lots more discussion. And . . . I don't think this is probably even the point to go into great depth on the bill, because we will have opportunity to do that, and we will do it on a bipartisan basis. And . . . this is not a markup. And that will come somewhere down the road. . . . I am totally truthful in saying that we will work on it in a bipartisan way.

Johnson later had an exchange with Rep. Thomas Rooney over the contours of the review system, the scope of discovery and the substantive standard of review. And many members raised specific detention-related issues they wished to discuss, but the quoted passages seem to me the exchanges with the most relevance to the prospects for actual detention legislation. And they reveal, quite simply, that there is significant common ground on several key premises, definite differences on others, and at least a stated willingness on both sides to be flexible. The major areas of potential common ground, reading only a bit between the lines, include: (1) a willingness to consider seriously reaffirming the AUMF; (2) a willingness to write detention authority into law; and (3) having a review process, presumably written in some form into statute. The major areas of friction include: (1) transfer restrictions, both with respect to people the administration means to free and with respect to those it wants to try in the United States; (2) the availability of non-military options for handling new captives (in other words, whether every new captive must be placed in military detention); and (3) the specific contours of the new review system, particularly as pertains to the role of attorneys for detainees. My bet is that if the administration and McKeon can come to an understanding on transfer restrictions and the presumption of military detention, everything else will fall into place. If not, we will end up with precisely the staring matching and showdown that everyone at this hearing was striving to avoid.