Dealing on Detentions

House Armed Services Committee Chairman Buck McKeon wants to make a deal with the Obama administration on detention policy.

"I don't want us to get hardened on any positions until we sit down and understand each other's positions," the California Republican said in an unexpectedly cordial House Armed Services Committee hearing Thursday. "I do not want this to get on a partisan track."

McKeon's conciliatory tone might seem odd, given that just last week he attacked the president for "repeating the mistakes of the Bush administration by attempting to generate detainee policy by executive fiat" with his new indefinite-detention proposal. But the civility of Thursday's hearing was a reflection of the emerging reality that when it comes to big questions of executive power, national security, and detention, President Barack Obama and the Republican Party have a lot in common. At this point, they're mostly haggling over the details.

"There's a certain amount of common ground," says Ben Wittes, a legal scholar at the Brookings Institution. "They are all talking about making detention authority explicit and creating a review process."

There's enough common ground, in fact, that the gulf between the administration and the left on detention policy has grown much wider than the one dividing the administration and congressional Republicans.

Granted, McKeon goes much further in his proposal than Obama or Bush ever did. It would strip the attorney general of the ability to decide where to try terrorists, mandate military detention for anyone, citizen or otherwise, captured abroad or in the U.S. on suspicion of working with a foreign terrorist group covered by the 2001 Authorization for Use of Military Force, require the secretary of defense to personally rubber-stamp any civilian terror prosecutions, and limit the administration's ability to transfer detainees abroad. It would also scrap Obama's proposal to give detainees access to lawyers when their detention status comes up for review.

Yet Obama and congressional Republicans' convergence on detention issues overshadows many disagreements. In February 2010, when Republicans first tried to interfere with the executive branch's authority to decide where to try suspected terrorists, Attorney General Eric Holder called the move "unprecedented." Yesterday, Pentagon general counsel Jeh Johnson called McKeon's proposal a "very thoughtful piece of work."

Both Republicans and Obama have committed to the validity of the military-commissions system, the legitimacy of indefinite military detention for suspected terrorists, and the administration's authority to conduct anti-terrorism operations against organizations like the Yemen-based al-Qaeda in the Arabian Peninsula, which didn't exist when the 2001 Authorization to Use Military Force was passed. In fact, while Johnson insisted that the AUMF offered adequate authority to address current threats, McKeon wants to revise that authority to give the administration more power to do so. Johnson didn't exactly reject the idea, calling it "something we have to think about."

Even the bitter words exchanged over the decision to take underwear bomber Umar Abdulmutallab into civilian custody seemed forgotten, as Johnson assured the committee that the Department of Defense would "have a role" in deciding whether or not to do so in similar cases in the future. Several Senate Republicans and independent Sen. Joe Lieberman have offered a similar proposal.

There are still key differences. The administration wants to close Guantánamo; Republicans will never let it happen. Johnson emphasized the necessity of being able to use Article III courts to try suspected terrorists; McKeon's proposal would make that difficult. Rep. Adam Smith, the ranking Democrat on the committee, warned that McKeon's plan as currently written would essentially have the military investigating domestic terrorism, a circumstance he accurately described as "alarming."

"It certainly empowers the military over U.S. citizens in a way that should alarm anyone concerned about government power," Smith said, hoping some Tea Partier somewhere might take the bait.

Underscoring the conflict over the use of military commissions is the fundamental weakness of the system, and the possibility that current litigation could render it all but useless. Two appeals to military-commissions convictions, one from al-Qaeda propagandist Ali al-Bahlul, who was sentenced to life imprisonment, and another from Osama bin Laden's former limo driver, Salim Hamdan, who is already home in Yemen, are challenging the validity of conspiracy and material-support charges as war crimes. Every single person convicted so far at Guantánamo has faced material-support charges.

"It's not clear that the two bread-and-butter charges that you make in terrorism cases, which are material support and conspiracy, are even available in military commissions," says Wittes. He adds that even if those charges are available, what he calls the "spitting on the sidewalk charges" -- crimes that may seem unrelated to terrorism but can be used to put terrorists away, just as mobster Al Capone was nabbed for tax evasion -- aren't available in military commissions.

"In all likelihood, this will end up in the Supreme Court. The only certainty is further litigation," says Wells Dixon, a senior staff attorney at the Center for Constitutional Rights. Military commissions, while part of the executive branch, are still appealed into federal civilian courts through the Court of Military Commission Review.

But McKeon's staff hinted that there might be space for compromise, even on the most contentious issues. "Last week was the beginning of a conversation on this," said a House staffer. "He's open to working with the administration." The administration does have some bargaining chips -- McKeon's proposal would allow detainees to plead guilty to capital charges in military commissions, paving the way for a military trial of the 9/11 conspirators. While the administration has vowed to try them in civilian court, it wouldn't be the first time it's folded on civil liberties. In exchange, the administration might get back some discretion about which venues the government can use to try terrorists. Liberals have been attacking Obama for retaining Bush detention policies. Now those Bush policies are the most leftward pole of the debate in Congress.

Despite all appearances, Wittes thinks it was always within the administration's power to get what it was looking for. "When the president is willing to go to the mat on something involving national security, he gets what he wants. When he's not willing to go to the mat, he gets rolled," Wittes says.

"This administration is not willing to fight for things. So they lose."

But why fight when there's so much to agree on?

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