Rights of detainees

By Stephen I. Vladeck, a law professor and associate dean for scholarship at American University Washington College of Law.

Typically, when Congress buries critical substantive policy initiatives in massive spending bills, the question is whether anyone — the media, in particular — will take heed. But with regard to the detainee provisions nestled into a subtitle of the Senate Armed Services Committee’s version of the National Defense Authorization Act (NDAA), garnering public attention has surprisingly not been the issue. Instead, thanks to a very public series of disagreements between Senate Majority Leader Harry Reid and Senators Carl Levin and John McCain (respectively the Chair and Ranking Member of the Committee), the jig is up on keeping these provisions under the radar — as manifested, to take two of many examples, in editorials in this Sunday’s Washington Post and last Sunday’s New York Times.

There’s a lot going on in the NDAA, but the provisions animating much of the current debate would do three separate things:

1. Define with at least some specificity the scope of the government’s power to detain terrorism suspects without trial;

2. Mandate the military detention of certain non-citizen terrorism suspects (and thereby bar their prosecution in civilian federal courts); and

3. Make permanent what have thus far been temporary spending restrictions barring the President from using certain funds to transfer detainees from Guantánamo to the United States for continuing long-term detention.

A lot of the opprobrium directed at the NDAA — including in Sunday’s Post editorial — has been focused on the latter two provisions, and for good reason. In this post, though, I want to explain why the first provision is no less (and perhaps even more) significant, and why the Post’s endorsement thereof is so alarmingly short-sighted.

Attorney General Eric Holder’s address at the ACS Tenth Anniversary National Convention championing the use of the civilian court system for terror-related trials has precipitated a public debate with Senate Minority Leader Mitch McConnell, who responded to Holder’s speech with a disparaging op-ed in The Washington Post.

In the op-ed, Senator McConnell reiterated an argument he had made before Holder’s speech that two Iraqis arrested in the U.S. in April should be tried at Guantanamo because they don’t deserve “all the rights” that Americans have.

He also accused Holder of insulting “those who have served on the front lines” by praising civilian courts as a terror-fighting weapons.

Department of Justice Spokesman Matthew Miller responded to the op-ed by lamenting that McConnell had "selectively lifting words from the Attorney General's speech to the American Constitution Society and using them out of context distorts their meaning and obscures reality,” TPM reports.

 “As the Attorney General has said on repeated occasions, we are at war, and we must use every weapon available - military, diplomatic, intelligence and law enforcement - to defeat a determined enemy,” Miller said. “Taking one of those weapons off the table would endanger our national security. That would be the real insult to the thousands of men and women who have fought to defeat Al Qaeda."

See more coverage of the ongoing debate in Politico, The National Journal and Main Justice and watch Holder’s address here.