Republicans Move To Strip Detainee Authority From Holder And Future Attorneys General

March 8, 2011 1:47 p.m.

Sens. John McCain (R-AZ) and Lindsey Graham (R-SC) are teaming up with Republicans on the House Armed Services Committee to write legislation that would take decisions about trying detainees out of the attorney general’s hands and hand that power to the secretary of defense.

In the wake of the White House’s new executive order allowing Guantanamo detainees to be held indefinitely, House Armed Services Committee Chairman Buck McKeon (R-CA) unveiled legislation that would, among other things, affirm the military’s right to detain, hold and interrogate detainees at its discretion without Department of Justice or Attorney General Eric Holder involvement.McKeon said he was working with McCain and Graham to craft a bill that would try to gain traction in both chambers.

Such legislation could attract significant Democratic support, considering Democrats’ willingness to buck Obama’s attempts to shutter Guantanamo Bay and Holder’s decision to try Khalid Sheik Mohammed in civilian court in New York City, a decision that was later reversed after prominent Democrats, including Sen. Chuck Schumer (D-NY) vigorously opposed the move.

In a striking move late last year when Democrats still controlled the House majority, they attached a provision to a $1.1 trillion resolution to keep the government funded next year that would prevent Obama from spending any funds to try terrorism suspects in civilian court instead of military commissions.

“Our military, not the Department of Justice, should be leading on law of war issues,” Rep. Tom Rooney (R-FL), a reservist in the Army’s Judge Advocate General program who serves on the Armed Services panel, told reporters Tuesday afternoon.

The bill also would formally authorize use of military force against al-Qaeda, the Taliban and affiliated terrorist networks; create certain restrictions which would make it tougher for detainees to return to the battlefield or share information with other terrorists or malign actors; and would permanently block funding for the creation or renovation of any facility in the continental United States to house detainees currently held at Guantanamo.

The House GOP move comes just as the Obama administration is preparing to open military-commission proceedings at Guantanamo Bay against Abd al-Rahim al-Nashiri, the accused mastermind of the USS Cole bombing in 2000. Al-Nashiri’s trial would be the first new military trial of a suspected terrorist in more than two years, National Journal reports.

Although McKeon said he was working on the bill with the Armed Services Committee’s ranking member, Adam Smith (D-WA), and had talked to him about it, one Democratic aide said the minority was not consulted about the bill’s unveiling and was surprised by the one-sided approach.

McKeon said he expected broad Democratic support for the legislation.

“We think there will be a huge number of Democrats supporting the bill,” he told reporters.

The proposal faces higher hurdles in the Senate but could attract some Democratic support there.

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