SASC Detainee Language: A Quick and Dirty Analysis

I just got a look at a bootlegged copy of the Senate Armed Services Committee language on detainee matters. The following is a quick and dirty summary--which proceeds in the order the provisions appear in the bill. My bottom line is that the Senate version has many of the same problems as the House language. It lacks some of what I think of as the House bill's good points. It contains some improvements. It contains one provision that, if adopted, would be a dramatic innovation. And it reinjects into the discussion a new version of a terrible provision that was stripped out of the House bill. I have only read this quickly, so please pardon any misreadings or errors of understanding on my part. Let's start with what isn't there: The Senate version, unlike the House bill, does not contain any reaffirmation of the AUMF--which many folks, particularly on the Left and in the administration will greet as a victory. As Lawfare readers know, I don't see it that way. I think reaffirming the AUMF is a good idea, and the House language, though needing some work, was not a bad place to start the conversation. The absence of parallel language in the Senate version sets up an interesting conference committee on this point. It could result in an all-or-nothing showdown between the two houses, or it could produce a compromise that contains some kind of reaffirmation language that is seen to go less far than the House version. The first section of the Senate bill does, however, explicitly affirm the authority of the military to detain the enemy. It defines what it terms "covered persons" as follows:

(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks. (2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

It permits, for covered persons, four possible "dispositions": long-term detention, military commission trial, trial by "alternative court or competent tribunal having lawful jurisdiction," or transfer to the detainee's country of origin or some other foreign country or entity. And it clarifies that this detention authority does not apply to U.S. citizens or lawful residents for "conduct taking place within the United States except to the extent permitted by the Constitution of the United States"--thus making clear that it is not trying to change the status quo vis a vis folks like Jose Padilla. If the Senate language stopped there, it would be an entirely constructive approach. Unfortunately, however, it goes on. The second section revives a version of the the mandatory detention idea I criticized in an early version of the House bill. Whenever the United States captures a person who is "a member of, or part of, al-Qaeda or an affiliated entity" and "a participant in the course of planning or carrying out an attack," the bill would require that "the Armed Forces of the United States shall hold [this person] in military custody as an unprivileged enemy belligerent pending disposition under the law of war"--as described in the earlier section. This requirement exempts U.S. citizens, making it a bit less dramatic than the earlier version. It also contains a waiver which the Secretary of Defense can use to protect "national security interests." And the availability of the full range of possible dispositions in the first section, including Article III trials, softens its impact a little. But only a little. It is still a very crude instrument that will needlessly complicate the disposition of cases that are already difficult enough and force the government to put people in military detention whose cases call for something else. It's still a terrible idea. Making this provision all the worse is that, like the House bill, the Senate language would extend the restrictions on all transfers from Guantanamo--requiring certifications from the Secretary of Defense that are, in practice, very difficult to meet. The ones in this language seem, on quick read, somewhat softer and modestly more flexible than the ones currently in place; I will have to study them further to figure out exactly how they differ. On the other hand, the Senate language would make them permanent. The fact that the transfer restrictions are in both bills seems to me very bad news for the administration's prospects in conference of getting them out. Like the House bill, the Senate language also prohibits the expenditure of funds to to build alternative facilities in the United States to house Guantanamo detainees--and its language on this point also applies permanently. Again, the fact that both bills would prevent the building of facilities in the United States make it most unlikely that the administration's plans to close Guantanamo will see a revival. On a brighter note for the administration, the Senate language seems to contain no restriction on transferring detainees to the United States for purposes of criminal trial--one of the administration's biggest bones of contention with the House language. If the Senate prevails on this point, it would be a big victory for the administration. The next section requires the administration to submit procedures to the relevant congressional committees for the annual review of Guantanamo detainees under President Obama's executive order. Unlike the House bill, which lays out its own procedures in detail, the Senate bill merely sets out parameters for the procedures it demands of the administration. Those parameters require:

• that the review not determine "the legality of any detainee's law of war detention" but only make "discretionary determinations whether or not a detainee represents a continuing threat";
• that the Secretary of defense be responsible for any final transfer decisions and that the review process produce a non-binding recommendation; and
• that the review consider the likelihood of a detainee's resuming terrorist activity or reestablishing ties with the enemy, "the likelihood of family, tribal, or government rehabilitation or support for the detainee if released or transferred," the possibility of military commission trial, and any law enforcement interest in the detainee.

The language does not seem to restrict a detainee's ability to be represented by counsel in the review process, as the House bill does. The Senate language next seeks to legislate the parameters of procedures for initial status determinations, something the House language does not seek to do. This provision appears to be drawn from an earlier bill by Senator John McCain, though the specific language has changed since then. I discussed this provision--about which I remain very puzzled--in a post back in March:

[I]n 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).

As I say, the language has changed a bit and it now only requires a hearing with a judge a counsel for those "who will be held in long-term detention under the law of war." But there is still no geographic limitation to Guantanamo. So at least as I read it, the Senate language would still seem to require that every military detainee anywhere in the world who is slated for "long-term detention," which the bill does not define, will get a hearing before a military judge and with counsel. Finally, like the House bill, the Senate language would clarify that a defendant in a military commission can plead guilty in a capital case. I will have more to say about this language as I study it more closely.