Yesterday Rep. Buck McKeon, the likely incoming chair of the House Armed Services Committee, gave a speech outlining his priorities in the new Congress. Among them is a new Authorization to Use Military Force:
Detainee Policy—We will also focus on detainee policy. The days of U.S. courts making policy through case law must come to an end. Armed Services Committee Members will work to craft a legislative framework for terrorist detention that protects the homeland, respects the rule of law, and upholds our high ideals. We need to keep terrorists off of our soil, not invite them here and pay for their legal representation.
We need to reaffirm—in statute—the authorization to use military force of 2001. Our forces in Afghanistan and around the world do not doubt that we continue to be at war with al Qaeda and its affiliated networks. They put their lives at risk every day. Therefore, Congress should ensure no court in the land questions the legal authority for our forces to prosecute this war.
Make no mistake: the Armed Services Committee will conduct thorough oversight of this Administration's detainee policies and work to legislate a framework that is guided by the law of armed conflict – not the criminal justice system.
The statement "We need to keep terrorists off of our soil, not invite them here and pay for their legal representation," is just silly. Whether we charge suspected terrorists in military commissions or in civilian courts, they get legal representation on the taxpayer's dime; in the former, the lawyer is simply wearing a uniform.
Earlier in the speech, McKeon states, "No more mirandizing terrorists. No more trials in downtown Manhattan. No more terrorist transfers to Yemen." Aside from the fact that transfers to Yemen have already been halted, suspected terrorists apprehended on American soil have always been dealt with through the criminal justice system, even during the Bush years, and the Miranda stuff is just nonsense. As longtime FBI/CIA official Phil Mudd has written, terrorists' "motives for talking (or not) are not driven by Miranda." Unless the public-safety exception is invoked, Miranda is not optional.
All the attacks on the administration aside, though, gutting Miranda is a policy objective McKeon has in common with the White House. While the administration wouldn't countenance Congress micromanaging its prosecutorial discretion, it's probably just as frustrated as McKeon with "U.S. courts making policy through case law," which, translated directly, means McKeon, like the administration, would be open to legislation codifying indefinite detention. A new AUMF would likely grant the administration clear legal authority to conduct drone strikes and targeted killing in areas like Yemen, where the U.S. is not technically at war.
In other words, a new AUMF would basically allow Congress to foreclose on all the legal avenues civil libertarians have used to limit the the past two administrations' unprecedented expansions of executive power. It's hard to imagine the administration wouldn't be happy with that, or that there's a large enough caucus of civil libertarians in the Senate who could prevent it from happening. For all the bluster McKeon aims at the White House, they may learn to like each other.
