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.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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