Rep. Buck McKeon's detention proposal would be a major rightward shift from Bush and Obama administration national-security policies. The policy would not only strip the Periodic Review Boards for Gitmo detainees of their most significant due-process innovation, the ability of detainees to have attorneys represent them, it would remove all authority for venue decisions from Attorney General Eric Holder to Defense Secretary Robert Gates:
Section 4. Requirement for Military Custody: This section provides that individuals eligible for detention under the 2001 Authorization for Use of Military Force (AUMF) must be held in military custody unless the Secretary of Defense certifies that a waiver is necessary in the interests of national security.
• Policy Rationale. This section is meant to ensure that terrorists are held by the military and exploited for intelligence purposes. It also gives the Secretary of Defense, instead of the Attorney General or other official, the ability to waive the requirement so that all possible disposition options are preserved while ensuring national security concerns are prioritized over law enforcement.
As Holder noted in a letter to Sen. Mitch McConnell last year, "[T]he practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States."
McKeon's proposal would change that. Arrests of foreigners arrested on American soil, like underwear bomber Umar Abdulmutallab, and American citizens, like Times Square Bomber Faisal Shahzad, would alike trigger the SecDef's detention authority over arrests covered by the AUMF.
"If they meet the criteria for the AUMF, that they can be held under the AUMF, this legislation would put them in military custody,” McKeon spokesman Josh Holly explained. The purpose of this law is ostensibly to facilitate intelligence gathering, but there's no evidence that the FBI's experienced interrogators have had any trouble getting intelligence from suspects. As former Richard Clarke said in the aftermath of the Abdulmutallab incident, “The FBI is good at getting people to talk."
The proposal essentially makes closing Gitmo all but impossible. Not only does it ban transfers to any country where there has been "a confirmed case of recidivism" unless the SecDef signs a waiver, it also bans the transport of detainees to the U.S. for any reason, as well as banning any funding for the construction of detention facilities in the U.S.
