Provisions in the 2012 defense authorization bill about handling terrorist detainees does not expand the authority for holding them in military custody. Rather, the measure seeks to codify detention authority that two administrations have used and the courts have upheld, Sens. Carl Leven, D-Mich., and John McCain, R-Ariz., write in an Op-Ed in The Washington Post
Levin, the chairman of the Senate Armed Services Committee, and McCain, the ranking minority member, note that the system for dealing with detainees has developed, often in an ad hoc way, since the attacks of 9/11.
“The bill, which was unanimously approved by the committee, builds on that work,” they write. “Its provisions on detainees represent a careful, bipartisan effort to provide the executive branch the clear authority, tools and flexibility of action it needs to defend us against the threat posed by al-Qaida.
“We are concerned that much of the debate over these provisions demonstrates a basic misunderstanding of what this bill would do and attributes to it many things that it would not do.”
The two senators acknowledge the “most controversial point involves the circumstances under which a terrorist detainee should be held in military, rather than civilian, custody.”
“The bill provides that a narrowly defined group of people — al-Qaida terrorists who participate in planning or conducting attacks against us — be held in military custody.
“However, the bill does allow the administration, through a waiver, to hold these al-Qaida detainees in civilian custody if it determines that would best serve national security. Moreover, the administration has broad authority to decide who is covered by this provision and how and when such a decision is made.”
The two note the legislation does not expand the authority under which detainees can be held in military custody and, in fact, includes provisions allowing the executive branch to decide whether a detainee meets the criteria for military custody and “expressly authorizes the transfer of any military detainee to civilian custody for trial in the federal courts.”
“Congress has passed a defense authorization bill every year for five decades,” they conclude. “This year’s bill includes pay raises for our troops, funding for equipment to protect them from roadside bombs, and medical care and other benefits for them and their families. It would be extremely unfortunate if disagreements over these detainee provisions prevented us from passing this bill and fulfilling those duties. But it would be tragic if this happened because of misunderstandings about what the bill says and does.”
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