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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Wittes’s Analysis on McCain and McKeon Legislation

Last week, Senator McCain introduced this bill on detention procedures.

According to Benjamin Wittes on Lawfare Blog, McCain's bill is basically  a "Senate version of the bill that House Armed Services Chairman Buck McKeon introduced the previous day."

Wittes covered the provisions of that bill here, and compares the McCain legislation in a post here.  

To sum up the majority of provisions, and the main contrast between the two pieces of legislation, Wittes writes:

"Broadly speaking, the McCain bill has similar policy ambitions to the McKeon bill–for good and ill. It too would put limits on the review process the President has created. It too would reaffirm the AUMF and codify in statute that it contains some detention authority. It too would mandate military detention for terrorist suspects absent a waiver by the Secretary of Defense. It too would make permanent restrictions on transfers from Guantanamo that now encumber the Executive Branch in disposing of Guantanamo cases. It too would prohibit the use of federal money to build alternative detention facilities in the United States. And it too would clarify that the accused can plead guilty in capital cases in military commissions. In some of these areas, it would do these things differently from the way the McKeon bill would do them. Most of the time, these differences are subtle, and I will try to flesh them out here. In one area, however, the difference is dramatic–and, unless I am misreading McCain’s bill, it would actually require a significant bolstering of protections for detainees around the world captured in the future…[]. 

McCain’s bill contains an additional review requirement, one requiring the administration to set forth within 90 days “procedures for determining the status of unprivileged enemy belligerents under the custody or control of the United States who are captured after the date of the enactment of this section, regardless of the place of capture.” These procedures, the bill requires, must include a military judge to preside at the hearing and make status determinations, and a military lawyer for the accused. The provision is not limited to those held at Guantanamo Bay."

For the full text of the Lawfare Blog post, link here


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