Advancing a Free Society

Analysis of the McCain Legislation

Saturday, March 12, 2011

I promised Thursday night to write up comments on the new legislation that has emerged in the Senate. Let me start with the proposal by Senator John McCain on detention rules. This bill, introduced by Sens. McCain, Lindsey Graham, Joseph Lieberman, Saxby Chambliss, Kelly Ayotte, and Scott Brown, is basically a Senate version of the bill that House Armed Services Chairman Buck McKeon introduced the previous day–about which I wrote a lengthy analysis here. As I have already addressed the McKeon legislation in some depth, I will not rehash all of the points I made in that post about its virtues and vices. Rather, I will here describe how the McCain legislation is similar to, and different from, the McKeon proposal.

Broadly speaking, the McCain bill has similar policy ambitions to the McKeon bill–for good and ill. It too would put limits on the review process the President has created. It too would reaffirm the AUMF and codify in statute that it contains some detention authority. It too would mandate military detention for terrorist suspects absent a waiver by the Secretary of Defense. It too would make permanent restrictions on transfers from Guantanamo that now encumber the Executive Branch in disposing of Guantanamo cases. It too would prohibit the use of federal money to build alternative detention facilities in the United States. And it too would clarify that the accused can plead guilty in capital cases in military commissions. In some of these areas, it would do these things differently from the way the McKeon bill would do them. Most of the time, these differences are subtle, and I will try to flesh them out here. In one area, however, the difference is dramatic–and, unless I am misreading McCain’s bill, it would actually require a significant bolstering of protections for detainees around the world captured in the future.

Continue reading Benjamin Wittes at Lawfare