A Showdown with Congress over Warsame?

Bobby has already noted that the administration's handling of the Warsame case would not have been possible had either the suspect set foot in Guantanamo Bay under current law or if pending congressional efforts to mandate military detention or military commissions for terrorist suspects were to go into effect. So, apparently, has House Armed Services Chairman Buck McKeon, who--the New York Times reports-- is not pleased:

In a statement, the chairman of the House Armed Services Committee, Representative Howard P. “Buck” McKeon, Republican of California, denounced the administration’s decision. “The transfer of this terrorist detainee directly contradicts Congressional intent and the will of the American people,” he said. “Congress has spoken clearly multiple times — including explicitly in pending legislation — of the perils of bringing terrorists onto U.S. soil.  It is unacceptable that the administration notified Congress only after it unilaterally transferred this detainee to New York City despite multiple requests for consultation.”

McKeon's comment puts in sharp relief the policy dispute between the administration and clear majorities in both houses of Congress. The administration--and those of us who support it on this point--wants flexibility in developing the hybrid model for terrorist detention and trial. It wants the ability to detain and interrogate suspects and bring them to trial in the system that makes the most sense for the particular case and at the particular time. It wants to be able to switch systems mid-stream where that makes sense. And it wants the ability to do these things in the location that makes the most sense for the particular case. By contrast, folks like McKeon have powerful per se instincts about the right system and the right location for detention, interrogation, and trial.  These instincts have strong symbolic elements. The fact that a given captive might make more sense to place in the civilian system--or to hold and interrogate in one system and then move into the other--doesn't matter. They are not interested in giving the administration a marketplace of options and letting case-specific realities guide its purchases. Because the right answer is to hold folks like Warsame in military custody abroad and, if he is to be brought to trial, to do so in a military commission. The right answer is always that--because, well, that's the right answer. I have spent a great deal of time over the past several years arguing for the legitimacy of military detention and military commissions. But as important as it is to defeat the political Left on its insistence on the impropriety or illegality of these options, it is equally important to defeat the political Right on its insistence on their primacy. They are not the only tools. And in many cases, they will not be the best tools. Just because the Left is wrong when it says that you can never use a hammer, the Right isn't right that you must always and only use that hammer. Warsame might be a screw.