Sunday, March 20, 2011; 9:51 PM
JUST DAYS after President Obama issued an executive order to govern long-term detentions at the U.S. Naval Base at Guantanamo Bay, Cuba, Republican members of the House and Senate shot back by offering their own, strikingly different proposals.
Let the negotiations begin.
The debate centers on the level of review for detainees who the government believes cannot be tried in federal or military courts but who have been deemed too dangerous to release; the administration has placed 47 Guantanamo prisoners in this category. Detainees have the right to challenge their imprisonments in federal court, but until Mr. Obama's March 7 order they could do nothing once the judge signed off on the original seizure. His order created a system of periodic reviews to check against unwarranted indefinite detention; a panel of officials from across the administration, including the Defense, State and Justice departments, would assess each case. Detainees would be allowed lawyers as long as the government is not asked to pay, and they would have the right to review evidence that until now was kept off-limits.
Contrast this with bills from Rep. Howard P. "Buck" McKeon (R-Calif.), chairman of the House Armed Services Committee, and Sen. John McCain (Ariz.), ranking Republican of the Senate Armed Services Committee. They appropriately follow suit by providing for review but remove many of the protections in the Obama plan. Mr. McKeon's bill, for example, would bar detainees from hiring lawyers; they would be entitled only to military representatives. Both bills would require that military personnel, rather than multi-agency panels, make detention decisions. Both also would essentially block the release of some detainees even if they win their cases.
Yet the Republican proposals contain provisions that the administration should embrace. Both reaffirm and extend the Authorization for the Use of Military Force, the post-Sept. 11, 2001, provision that gave the president the power to use all necessary force, including detention, against those who had a hand in the attacks. This is important. Nearly 10 years since the attacks, questions have arisen over whether the president has the authority to detain new suspects whose links to Sept. 11 may be tenuous or nonexistent. The bills make clear that he does by stating that the United States is involved in an armed conflict with al-Qaeda, the Taliban and affiliated groups and that the president may detain unlawful enemy combatants who participate in such hostilities. Mr. Obama's order is shortsighted because it makes no contingencies for future captures.
The country and the rule of law would benefit by having clearly defined standards that give the president the flexibility needed to combat terrorism while providing detainees essential protections. The presidential approach is better overall but lacks the legitimacy that would come from legislation. Mr. Obama should engage with members of Congress to push the bills in the right direction.