Advancing a Free Society

Rep. McKeon’s Detention Bill

Wednesday, November 17, 2010

In his speech yesterday, incoming House Armed Services chairman Buck McKeon promised that his committee would work in the coming Congress on a “legal framework” for detention. Here’s hoping he is more serious about it this coming year than his work this past year might suggest. As Spencer Ackerman points out, McKeon has introduced detention legislation before; in March, he introduced H.R. 4892, the Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010–a cousin of which was earlier introduced in the Senate by John McCain. Ackerman quotes what is, alas, in many respects the bill’s least objectionable major provision:

An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(b)(1) in a manner which satisfies Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

While the application of non-criminal detention authority to citizens is a touchy subject and any legislative scheme will no doubt need to offer more process than that contemplated by Article 5 of the Third Geneva Conventions, I certainly agree that Congress should affirm the authority to detain non-criminally belligerents in this conflict while hostilities continue. So my differences with the bill on that point are minor.

Unfortunately, that’s about the only thing in this bill to which I have no fundamental objection.

Continue reading Benjamin Wittes in Lawfare

(photo credit: StephenMitchell)