Rep. McKeon’s Detention Bill

by Benjamin Wittes

In his speech yesterday, incoming House Armed Services chairman Buck McKeon promised that his committee would work in the coming Congress on a “legal framework” for detention. Here’s hoping he is more serious about it this coming year than his work this past year might suggest. As Spencer Ackerman points out, McKeon has introduced detention legislation before; in March, he introduced H.R. 4892, the Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010–a cousin of which was earlier introduced in the Senate by John McCain. Ackerman quotes what is, alas, in many respects the bill’s least objectionable major provision:

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(b)(1) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

While the application of non-criminal detention authority to citizens is a touchy subject and any legislative scheme will no doubt need to offer more process than that contemplated by Article 5 of the Third Geneva Conventions, I certainly agree that Congress should affirm the authority to detain non-criminally belligerents in this conflict while hostilities continue. So my differences with the bill on that point are minor.

Unfortunately, that’s about the only thing in this bill to which I have no fundamental objection. Here are its major provisions–most of which, quite frankly, to merely describe is also to criticize:
■Section 2 requires that any “individual . . . captured or [who] otherwise comes into the custody or under the effective control of the United States who is suspected of engaging in hostilities against the United States or its coalition partners though an act of terrorism” or material support for such activity and who “may be an unprivileged enemy belligerent . . . shall be placed in military custody for purposes of initial interrogation and determination of status.” That’s right. Any terrorist suspect–citizen or alien, arrested domestically or abroad–who might be detainable as an unprivileged belligerent must be detained as unprivileged belligerent.
■Section 3 places the Director of National Intelligence in charge of all interrogations of “high value detainees” and requires the DNI to approve any reading of Miranda rights to high value detainees. This power is not delegatable. Nor does the bill offer a clear definition of a high value detainee–just a list of criteria for evaluation, which helpfully includes “such other matters as the president considers appropriate.” In other words, the bill isn’t sure who counts as a high value detainee, but it’s happy to micromanage the reading of his Miranda rights.
■Section 4 provides that “No funds appropriated or otherwise made available . . . may be used to prosecute in an Article III court in the United States . . . any alien who has been determined to be an unprivileged enemy belligerent.” Put another way, not only must someone suspected of terrorism be held in military custody as an initial matter, he cannot ever be tried in civilian court–not even if, say, he could be charged only with crimes cognizable in federal court but not in military commissions.
This is an uncommonly silly bill–one that would have tied the hands of the Bush administration almost as tightly as it would now tie the hands of the Obama administration. It would, for example, have prohibited the many material support prosecutions the prior administration brought by forcing it to place those defendants in military custody and then, lobster-trap like, prohibiting their transfer to federal court. It would have prevented the eventual disposition of the Jose Padilla case–which was predicated on his return to the criminal system–and thereby dramatically increased the likelihood of Supreme Court intervention in his case and setback to the administration. I could go on.

If Rep. McKeon is serious about creating a viable legal framework for terrorism detentions, he has an enormous and honorable role to play in the coming few years. The administration is so scared of its shadow on this issue and so internally divided that it could never manage to muster a response to Sen. Lindsey Graham on his proposal. And very few others in Congress have been willing to approach it seriously. But if McKeon is serious about legislating something useful, he is going to have to tear up his playbook entirely. This bill is flawed not merely in execution but in its very purpose. The goal of a non-criminal detention framework law should be to provide a clear and viable option for the executive, not a straitjacket that impedes its use of viable criminal options. The availability of this option should enhance presidential flexibility, not restrict it. The goal, in other words, should be to help the president, not to frustrate him. There is little sign either in this bill or in McKeon’s speech yesterday that he understands that.