Detainee Legislation Compromise: Is Congress Overstepping Its Authority?

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A proposed bill would make it legal to detain U.S. citizens, forbid the closing of Guantanamo Bay, and make it near impossible to try terror suspects in civilian court

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In a candid moment, Sen. Carl Levin, the Michigan Democrat who chairs the Senate Armed Services Committee, might offer a simple (and sad) message for those folks complaining about the prudence and the constitutionality of several controversial terror detainee provisions contained in his committee's reported version of the National Defense Authorization Act. If you think the current text is bad, he might say, you should have seen the alternatives initially proposed by Sens. McCain, Graham and Lieberman -- they were a whole lot worse.

Unfortunately, even the compromise provisions now in play represent dangerous legislative intrusions into core executive branch functions; a type of meddling that was unthinkable during the Bush Administration. At best, the measures would guarantee legal challenges, some of which might succeed and all of which would generate uncertainty for years. At worst, they would impose unnecessary new terror law rules that would make it harder for the executive branch to prosecute captured terror suspects in the manner it sees fit.

No legislation is perfect. Every bill contains compromises. But this is not a piece of economic legislation we're dealing with here. There are no compromises when it comes to constitutional rights and privileges. So does Sen. Levin deserve credit for trying to make a bad bill better? Or does he deserve scorn for selling out to the extremists on Capitol Hill? And, more broadly, doesn't the Armed Services Committee have more important things to do with its time than foisting discredited Bush-era terror-law principles upon a nation that already has moved on?   

The Provisions

In the beginning, there was the Military Detainee Procedures Improvement Act of 2011, an odious bill that would have essentially required military custody for all terror detainees, included U.S. citizens in its scope, and would have made it virtually impossible for detainees to be transferred from military custody to civilian control. The proposed bill was arguably more unconstitutional than either the Detainee Treatment Act of 2005 or the Military Commissions Act of 2006, both of which were voided by the United States Supreme Court.

The act was sponsored or co-sponsored by the Three Horsemen of the Apocalypse, the aforementioned John McCain, Lindsey Graham and Joe Lieberman, who were joined by Sen. Kelly Ayote (R-N.H.), the legislator whose own terrible terror law bill was rejected last week. Also co-sponsoring the measure was Sen. Scott Brown (R-Mass.), who will soon have to explain to voters in the Bay State why he was mixed up with this crew. When it comes to terror law, after all, the Three Horsemen are like coolers in Las Vegas; you find out what they are backing and then you bet the other way.

Enter Sen. Levin, a six-term senator, who reached his compromise with Sen. McCain. In place of the text of the old act, we now have, for example, Section 1031 of the NDAA. It authorizes the military to indefinitely detain "unprivileged enemy belligerents," which the committee broadly defines to include, in some instances, U.S. citizens. But Section 1031 contemplates that such detainees may be transferred to civilian custody and purports to narrow its scope to those with a connection (albeit even a tenuous one) to al-Qaeda and "associated forces."

Section 1032, to be applied in concert with Section 1031, contains a mandatory detention requirement for anyone "determined" (by the military) to be a member of al-Qaeda or its affiliates. It allows the executive branch, however, to "waive" this requirement by having the "Secretary of Defense... in consultation with the Secretary of State and the Director of National Intelligence" submit to Congress a written certificate that the waiver is in the "national security interests of the United States." The executive branch, in other words, would practically have to do a song-and-dance on Capitol Hill to prosecute a terror suspect in civilian court.

Next, Section 1033 sharply limits the ability of the executive branch to transfer detainees to other countries. Then there is Section 1034, which effectively precludes the closure of the terror-law prison at Guantanamo Bay, Cuba by banning the use of any funds for substitute prison facilities anywhere else in the world. I think Section 1034 may be the worst of the lot -- a triumph of fear and prejudice over pragmatic solutions. But it doesn't appear to have raised the hackles of even those senators who are opposed to some of the other provisions. Go figure.   

The Drama

At first, Senate Majority Leader Harry Reid stoically refused to allow a vote on the NDAA until the detainee provisions were removed or altered. In a letter earlier this month to Senators McCain and Levin, Reid reminded his colleagues that terrorism officials in the executive branch consider the proposed provisions "radically different" from, and counterproductive to, the rules which have been governed detainee rights over the past few years and which have been used to successfully prosecute hundreds of terror suspects since 9/11. Sen. Reid was, for a few weeks anyway, a profile in courage.  

Last Tuesday, however, evidently under pressure from Sen. Levin and the Three Horsemen, Leader Reid changed his mind. On the floor of the Senate, he said of the entire legislation: 

My colleagues are right about the Defense Authorization Act - absolutely right. We need to do this. We have always done it, and we are going to do it this year.... My colleagues have said several times that they believe these provisions ought to be considered in regular order and that the Senate ought to proceed to debate them. As I indicated a few minutes ago, if that is the only avenue we have, then that is what we will do.

But then, last Friday, two other powerful Democratic senators weighed in against Sen. Levin's compromise. Vermont's Patrick Leahy, chairman of the Senate Judiciary Committee, and California's Dianne Feinstein, chairwoman of the Senate Select Committee on Intelligence, wrote Sen. Reid a letter requesting that the controversial provisions be removed from the NDAA. "We concur with the Administration's view that mandatory military custody is 'undue and dangerous,'" they wrote, "and that these provisions would 'severely and recklessly undermine' our Nation's counterrorism efforts."

Even if they are an improvement over their predecessors, it is not apparent to me (or others) that the compromise sections are constitutional. I asked Sen. Levin to comment. Naturally, he defended his work. Remarkably, however, he contends that the provisions "do not take power away from civilian law enforcement agencies or from the Executive Branch." Now, tell me, when a guy punches another guy in the arm which guy do you ask if you want to know if the punch hurt? Do you ask the guy who punched? Or do you ask the guy who got punched? The White House says these provisions take power away from the executive branch. It ought to know. 

If the master of the Senate were alive today, he would revel in the infighting between and among Senate Democratic leaders -- and then he would bend them to his will. Lyndon Johnson would bury these provisions where they belong while figuring out a way to pass the rest of the legislation. Meanwhile, if LBJ's nemesis Barry Goldwater were alive today, he might say that compromise in the face of extremism is indeed a vice. Even if Sen. Levin's heart is in the right place his compromise legislation stinks. In this instance, a bad law would be far worse than no law at all.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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