A Response to Ben Wittes

by Deborah Pearlstein

Ben Wittes, long an advocate for clearer domestic legislation authorizing U.S. detention operations, writes to ask whether my recent post favoring the Senate’s over the House’s version of pending legislation signals a shift in my position opposing new such legislation. The short answer is no. Here’s why.

I’d praised the Senate’s draft of force authorization language as follows: “Where the House bill seemed intent on expanding the scope of that authorization (indeed, on expanding our understanding of the nature of the armed conflict in which the United States is engaged), the Senate bill appears to contain no such language. On the contrary, it ties detention authority squarely to the 2001 AUMF, and describes the scope of that detention authority precisely as the courts (and Obama Administration) have done in the Guantanamo habeas cases in the federal courts. It also, for the first time, makes express Congress’ intention that detention under this authority be carried out pursuant to the law of war.” In response, Ben asks: “Is there a softening here of opposition to detention legislation? Or is the apparent complacency about the Senate language merely complacency relative to the House language?”

It’s the latter. I’d intended to express a preference for the Senate version over the House version among bills currently on the table; not to express a preference for any legislation here over none. For reasons I’ve often expressed, I don’t think new legislation at this point purporting to clarify the domestic authority the detention operations we’ve been engaged in for a decade serves a productive purpose, either as a matter of policy or law. With respect to those currently detained, the courts have now reached a relative consensus on who may be lawfully held, reflecting a standard largely embraced by the executive as well. (It is a not a consensus with which I agree in all respects, but there can be little question that its contours have been subject to vigorous, adversarial debate: Congress passed a general law in the AUMF, the current executive proposed an interpretation of it (in light of intervening Supreme Court decisions), and the courts subsequently embraced that interpretation (more or less).) On the particular question of whether the existing detention authority should be interpreted in light of applicable international law, the President and the Supreme Court both, rightly, think it should. Only a few judges on the D.C. Circuit seem to think otherwise. I think the Senate version on this issue sensibly comes down on the side of the President.) It took a decade to arrive at this point of relative clarity. New legislation would not usefully put a period at the end of that discussion. It would serve only to open a new series of debates.

But I don’t actually think the proponents of new legislation are mostly concerned with adding clarity, or due process legitimacy, to what has been done. As the House version of the pending legislation suggests, the purpose I think motivating most who are interested in new legislation is to make clear that what detention authority already exists should continue to exist, and in broader form, going forward. That is, that the United States should continue to have the authority to detain not only those held in the conflict in Afghanistan, for example, but also anyone we might pick up and suspect of terrorist activity anywhere else, whether or not tied to the attacks of September 11. It is hardly congressional engagement I object to in general. It is the content of this particular legislative action – the notion that broadening existing military detention authority (and, one might add, hamstringing the executive’s ability to prosecute detainees criminally) to combat the threat of international terrorism is a good idea. So given a choice between a bill that pursues this more-detention goal (the House version) and one that, as best I can tell, does not (the Senate), I’d certainly prefer the latter. That said, if I’m misreading the Senate bill – if it does in some way expand the scope of who may be detained beyond what the courts have said the existing AUMF already does – I’d be most interested to understand how.


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