Skip to content

Category Archives: Detention: Law of: Legislative Development

The Obviously Unconstitutional Cotton Amendment

By
Thursday, June 19, 2014 at 4:30 PM

Among the proposed amendments to the DOD appropriations bill currently under consideration in the House of Representatives is this doozy, courtesy of Arkansas Rep. Tom Cotton: None of the funds appropriated or otherwise made available by this Act may be used to transfer or release any individual detained at United States Naval Station, Guantanamo Bay, . . .
Read more »

The Uncertain Future of Military Detention Authority as “Combat Operations” in Afghanistan End

By
Tuesday, May 27, 2014 at 4:23 PM

Scooping his own speech tomorrow at West Point, President Obama today announced his decision on future US force levels in Afghanistan.  Assuming that the winner of the Afghan presidential election will indeed sign the new Bilateral Security Agreement (which both leading candidates have pledged to do), the US will: – reduce its presence to 9800 . . .
Read more »

Guantanamo Provisions in Compromise 2014 NDAA

By
Tuesday, December 10, 2013 at 8:31 AM

Monday evening, Senate and House armed services committee leaders announced that a compromise has been largely reached with regard to the 2014 National Defense Authorization Act. Among those matters included in the bill is the future of Guantanamo. Here is a summary of the provisions in the NDAA that relate with Guantanamo, as described in . . .
Read more »

This Evening’s Vote on NDAA Amendments Regarding GTMO

By
Tuesday, November 19, 2013 at 6:16 PM

This evening, the Senate voted on two GTMO-flavored amendments to the FY2014 National Defense Authorization Act. One amendment was put forth by Senators Carl Levin and John McCain, and would have (among other things) liberalized the NDAA transfer regime so as to permit, at least in principle. trials of Guantanamo detainees in the United States.  (UPDATE: . . .
Read more »

Better Late than Never: Periodic Review Boards Finally (Re)Starting at GTMO

By
Sunday, July 21, 2013 at 10:19 PM

Well, it is not exactly being launched with fanfare, but it appears that the long-awaited Periodic Review Board (PRB) process is about to be relaunched at GTMO.  So reports Carol Rosenberg, here. Let me say first that this is a very welcome development, albeit one that was too slow in coming (here is Ben asking . . .
Read more »

House vs. Senate on the NDAA

By
Sunday, June 30, 2013 at 4:05 PM

Raffaela has already posted on both the House of Representatives‘s and the Senate‘s versions of this year’s NDAA–highlighting their differences with regards to Guantanamo detentions and transfers. But I wanted to emphasize the point, which seems to me both very important and potentially offering a major breakthrough in the politics of Guantanamo. In the past, both . . .
Read more »

The Senate Armed Services Committee’s GTMO Transfer Provisions in the 2014 NDAA

By
Tuesday, June 25, 2013 at 11:22 AM

Last week, the Senate Armed Services Committee (SASC) approved its version of the National Defense Authorization Act for FY2014. (The House passed its iteration a week earlier.) The House version left intact the same prohibitions on the transfer of detainees held at Guantanamo out of the detention facility as in previous defense authorization bills. The SASC, by . . .
Read more »

Announcing Lawfare‘s First E-Book: Lawfare on the National Defense Authorization Acts

By and
Monday, June 24, 2013 at 6:02 AM

We are very pleased to announce Lawfare‘s first e-book, Lawfare on the National Defense Authorization Acts, which is now available in Kindle format on Amazon for $4.99. The book, edited and with a narrative introduction by Alan, is a collection of 114 of Lawfare‘s previously published posts on the 2011–2013 NDAAs and the Southern District . . .
Read more »

2014 NDAA Passes the House, With Many Amendments

By
Friday, June 14, 2013 at 4:00 PM

Over the last 24 hours, the House debated and voted on nearly 200 amendments to the National Defense Authorization Act of 2014 (H.R. 1960). Many of these amendments were approved via “voice vote” (there was no formal recording of how members voted); quite a few others were approved en bloc (grouped together and voted on . . .
Read more »

Rep. Smith’s proposed NDAA amendments on Guantanamo and Indefinite Detention

By
Thursday, June 13, 2013 at 12:36 PM

This week, Rep. Adam Smith (D-WA) filed two amendments to the National Defense Authorization Act for 2014 (H.R. 1960).  The first, co-sponsored by Rep. Jerrold Nadler (D-NY) and James Moran (D-VA), provides a framework to close the Guantanamo Bay detention facility by December 31, 2014 (full text here).  Smith advances a six-part plan for achieving . . .
Read more »

White House Threatens Veto of NDAA

By
Wednesday, June 12, 2013 at 10:51 AM

OMB has issued a Statement of Administration Policy (SAP) pointing out White House objections to various elements in pending NDAA legislation (H.R. 1960, the HASC NDAA FY’14 bill), and threatening to veto the legislation if changes are not made.  There are, of course, many different points of contention.  I’ll highlight two sections of the SAP . . .
Read more »

Sunsetting the AUMF: Rep. Schiff’s Proposal

By and
Monday, June 10, 2013 at 12:54 PM

Pardon the interruption from all-things-surveillance, but pursuant to our back and forth with Bobby, Jack, Matt, and Ben on the merits of a new AUMF, Representative Adam Schiff, a senior member of the House Intelligence Committee, is planning to introduce legislation tomorrow that we think is worth taking a look at.  It sunsets a repeal of . . .
Read more »

Transcript of HASC Debate on GTMO Transfer Amendment

By
Friday, June 7, 2013 at 10:22 AM

The House Armed Services Committee was hard at work marking up the National Defense Authorization Act for the upcoming fiscal year. We have a transcript of the debate over Democratic Congressman Adam Smith’s amendment to the bill on Wednesday. It would have significantly departed from recent practice, by allowing GTMO detainees to be transferred to facilities . . .
Read more »

Eight Thoughts on the Broad Reading of Article II Inherent in Bobby’s Conjecture

By
Tuesday, May 28, 2013 at 8:08 AM

Bobby’s post from Friday argued that “the current shadow war approach to counterterrorism doesn’t really require an armed-conflict predicate–or an AUMF, for that matter.”  Bobby’s point is that most if not all of the USG’s current uses of force outside Afghanistan could in theory continue even if the armed conflict against al Qaeda ended.  This . . .
Read more »

Does the Armed-Conflict Model Matter in Practice Anymore?

By
Friday, May 24, 2013 at 7:06 PM

This post draws on material from my current book project, the concluding chapter of which considers the legal architecture of counterterrorism in a “postwar” setting…and advances the argument that we already have largely crossed into that world.  In yesterday’s speech, President Obama repeatedly referred to the possibility that the armed conflict with al Qaeda may . . .
Read more »

Our Testimony on Military Detention for Domestic Captures: Congress Should Foreclose This Defunct Option

By and
Wednesday, May 22, 2013 at 9:00 AM

Today we will appear before the House Judiciary Committee, and will argue that Congress should put to rest the question of military detention for domestic captures.  More specifically, we will argue that Congress should state explicitly that such detention is not an option under the AUMF or the NDAA FY’12.  Here is the complete text . . .
Read more »

Daskal and Vladeck Working Paper on “After the AUMF”

By
Wednesday, May 15, 2013 at 6:15 AM

In advance of Thursday’s Senate Armed Services Committee hearing on the 2001 Authorization for the Use of Military Force (AUMF), Jen Daskal and I have expanded upon our exchanges with Bobby, Jack, Matt, and Ben in a new (draft) working paper titled “After the AUMF,” a copy of which is available here. The paper is . . .
Read more »

A Quick Guide to the Lawfare Debate Over a New AUMF

By
Wednesday, May 8, 2013 at 2:33 AM

As Andrew Rosenthal noted in yesterday’s New York Times, things seem to be heating up in Congress with respect to whether–and to what extent–the September 2001 Authorization for Use of Military Force (AUMF) needs to be updated, repealed, and/or replaced. To that end, the Senate Armed Services Committee has now scheduled a hearing on the same . . .
Read more »

After the AUMF: A Response to Chesney, Goldsmith, Waxman, and Wittes

By and
Sunday, March 17, 2013 at 10:31 PM

In the very first days after the horrific attacks of September 11, 2001, the Bush Administration asked Congress for broad statutory authorization to use military force to “deter and pre-empt any future acts of terrorism or aggression against the United States”—that is to say, for statutory authorization of what that Administration called a “Global War . . .
Read more »

A Statutory Framework for Next-Generation Threats

By , , and
Monday, February 25, 2013 at 5:30 PM

Several years ago, in a prescient op-ed in the Washington Post, our colleague John Bellinger argued that the September 2001 AUMF was an increasingly poor fit for the evolving threats facing the United States.  It is a theme to which many of us have returned in the intervening years, as unfolding trends and events have exacerbated . . .
Read more »