Ben Wittes describes Rep. Buck McKeon's detention bill as "uncommonly silly," and lists the reasons why:
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.
I still maintain that there's less difference between Republican and administration priorities than there appears to be, and both sides can probably get a lot of what they want if they decided to cooperate. The question is really whether Rep. Buck McKeon is negotiating in good faith, or whether he's just going to propose policy that hamstrings the executive in a way that no administration would ever agree to. The funny thing is that if it's the latter, McKeon is going to end up helping the administration's civil-libertarian critics more than anyone else.
