Saturday, February 11, 2012
NPR had a story today concerning the process of selecting between civilian and military commission prosecution options. It’s an important topic. Unfortunately, the story included the following mistaken description of the NDAA’s impact: …But here’s what’s new: the new Defense Authorization Act puts a thumb on the scale in favor of the military court system. [...]
Wednesday, February 1, 2012
The US government is considering transferring a group of five Taliban detainees from GTMO to Qatar (to be held there by Qatari authorities) in furtherance of peace negotiations in relation to Afghanistan. Of course, as we all know, Congress has passed all sorts of legislation making it difficult to release or transfer detainees from GTMO, including most notably [...]
Last year, at this time, I wrote a hot-headed little post objecting the signing statement President Obama issued in connection with last year’s defense authorization act. This year’s signing statement, which Steve posted the other day, seems to me a far more creditable effort. For starters, it is not simply a set a policy whines about what [...]
Saturday, December 31, 2011
By Marty Lederman and Steve Vladeck* [Cross-posted at OpinioJuris] Section 1021 of the NDAA and the Laws of War In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization [...]
Also filed in AUMF, AUMF: Legislative Reaffirmation, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Operations in Afghanistan, Detention: Operations in Iraq, Executive Power, Guantanamo, Guantanamo: Legislation, Guantanamo: Transfers and Resettlement, International Law, International Law: LOAC, International Law: LOAC: Detention, NDAA
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Tagged Al Bihani, Brett Kavanaugh, Carl Levin, David Cole, Dianne Feinstein, Janice Rogers Brown, John Brennan, Lindsey Graham, Marty Lederman, Raha Wala
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Saturday, December 31, 2011
By Marty Lederman and Steve Vladeck* [Cross-posted at OpinioJuris] Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law. One of the major disputes concerns whether and howi the NDAA [...]
Also filed in AUMF, AUMF: Legislative Reaffirmation, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Operations in Afghanistan, Detention: Operations in Iraq, Executive Power, Guantanamo, Guantanamo: Legislation, Guantanamo: Litigation, Guantanamo: Transfers and Resettlement, International Law, International Law: LOAC, International Law: LOAC: Detention, NDAA
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Tagged Al Bihani, Brett Kavanaugh, Carl Levin, David Cole, Dianne Feinstein, Janice Rogers Brown, John Brennan, Lindsey Graham, Marty Lederman, Raha Wala
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Saturday, December 31, 2011
According to the AP, President Obama signed H.R. 1540, the National Defense Authorization Act, into law this morning in Hawaii. Below the fold is the text of the signing statement accompanying the bill:
Sunday, December 25, 2011
A dispatch from the Lawfare North Pole: the White House seems to be using more aggressive language, in opposing Congress’s recent efforts to limit the executive branch’s authority over detainee affairs. Two days ago, the Administration released a statement on the President’s views regarding H.R. 2055, the Consolidated Appropriations Act of 2012 – also known [...]
Also filed in Detention, Detention: Law of, Guantanamo, Guantanamo: Legislation, Guantanamo: Prosecutions, Guantanamo: Transfers and Resettlement, NDAA, Terrorism Trials, Terrorism Trials: Legislative Development
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Tagged Consolidated Appropriations Act of 2012, Department of Justice, Guantanamo, Ike Skelton
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Thursday, December 22, 2011
Stephen Voss, a philosophy professor at Bogazici University in Istanbul, writes in with the following response to Bobby’s and my NDAA FAQ: The current NDAA contains, in section 1021, legislation that may drastically expand the government’s detention authority. The question is without doubt grave: I suspect that we may be viewing the end of the [...]
Thursday, December 22, 2011
Joanne Mariner of Hunter College’s Human Rights Program, writing at Justicia.com, has this lengthy analysis of the NDAA from a human rights and civil liberties point of view. It is the first half of a two-part series.
Tuesday, December 20, 2011
Raha Wala of Human Rights First has rewritten Bobby and my NDAA FAQ. Here is his very commendable effort: While I agree that much of he public discussion of the NDAA provisions has been hyperbolic, I also think there’s much to be worried about in this bill and, therefore, I’m glad the debate has escaped [...]
Monday, December 19, 2011
The volume of sheer, unadulterated nonsense zipping around the internet about the NDAA boggles the mind. There was a time–only a few months ago–when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety. The added attention to it [...]
Monday, December 19, 2011
In our final installment of NDAA transcripts, we bring you the Senate’s debate on December 15th on the conference report’s detention provisions. Here are some highlights: Senators Carl Levin and John McCain tout the strengths of the detention provisions starting on pages 1 and 3, respectively. Senator McCain acknowledges the collaboration the conference committee had with [...]
Also filed in AUMF, AUMF: Legislative Reaffirmation, Detention, Detention: Law of, Guantanamo, Guantanamo: Legislation, NDAA
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Tagged Carl Levin, Chris Coons, Dianne Feinstein, Dick Durbin, Jeff Bingaman, John McCain, Kelly Ayotte, Mark Kirk, Mark Udall, Patrick Leahy, Robert Mueller
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Sunday, December 18, 2011
David Cole, writing in the New York Review of Books blog, has this essay on the President’s decision not to veto the NDAA. Key passage: the law as amended continues to contain extraordinarily dangerous principles. It creates a presumption in favor of indefinite military detention for foreign al-Qaeda suspects, even if a criminal arrest and prosecution would [...]
Friday, December 16, 2011
You can read the detention-specific portions of the December 14th House debate on the conference report here. Here are some highlights: Congressman Alcee Hastings (D-FL) presented a strident opposition to the provisions. His comments begin right on page 1: This legislation establishes an authority for open-ended war anywhere in the world and against anyone. It [...]
Friday, December 16, 2011
It may surprise some readers, but I find myself oddly attracted to the Due Process Guarantee Act–which Steve described last night. The bill is cast as a response to the NDAA detention authorization provisions. But I’m not really sure the two are in particular conflict, and I’m not sure either that someone like me–who supports [...]
Friday, December 16, 2011
Well that was fast… With the ink barely dry on the Senate’s passage of the NDAA, Senator Feinstein yesterday introduced on behalf of herself and 13 Senate colleagues (including Republican Senators Lee, Kirk, and Paul) the “Due Process Guarantee Act of 2011.” The title is a bit of a misnomer; what the bill really does [...]
Also filed in AUMF, AUMF: Legislative Reaffirmation, AUMF: Scope and Reach, Detention, Guantanamo, Guantanamo: Legislation, NDAA
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Tagged Diane Feinstein, Due Process Guarantee Act, Mark Kirk, Mike Lee, Non-Detention Act, Patrick Leahy, Rand Paul
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Wednesday, December 14, 2011
The House has passed the conference version of the NDAA. It will go on to the Senate, probably coming up tomorrow (Thursday). With the White House veto threat lifted, the NDAA likely will be law in very short order. After that? Once the bill is law, the next item to watch for will be the [...]
Wednesday, December 14, 2011
The White House has issued the following statement announcing that–and why–it will not veto the NDAA: Statement from the Press Secretary on the NDAA Bill We have been clear that “any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s [...]
Wednesday, December 14, 2011
Here is a letter from Congressman Adam Smith (D-WA), the ranking member of the House Armed Services Committee, defending and clarifying the detention provisions in the NDAA and advocating for its passage. Dear Colleague: One of the most important issues in the Fiscal Year 2012 National Defense Authorization Act (NDAA) involves detainee issues. I would like to [...]
Tuesday, December 13, 2011
For reasons I plan to elaborate upon in this and subsequent posts, I’m not at all convinced that the conference version of the NDAA is substantially better than the House or Senate version (or that either is better than nothing)… In this post, I’ll start with the question of non-battlefield detention authority. Bobby has already [...]
Also filed in AUMF, AUMF: Legislative Reaffirmation, AUMF: Scope and Reach, Detention, Detention: Law of, Detention: Non-Guantanamo Habeas Litigation, Guantanamo, Guantanamo: Legislation, NDAA
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Tagged Al Marri, AUMF, Hamdi, Non-Detention Act, Padilla, PATRIOT Act
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Tuesday, December 13, 2011
I am still digesting the new NDAA language, and I’m not yet ready to say how come out on it. It is, without question, significantly better than either the House or Senate bills. Yet some of its provisions remain deeply troubling. While I haven’t seen anything from the White House yet about how this latest [...]
Tuesday, December 13, 2011
The conference report for the NDAA is now available. Subtitle D, entitled “Counterterrorism,” begins on page 653 and runs through page 685. The conferees’ explanation of their choices begins on page 158 of a separate document. I will blog as I read. Readers many find my earlier posts comparing the House and Senate versions of the [...]
Saturday, December 10, 2011
President Obama’s chief counterterrorism adviser, John Brennan, has given an extended interview to NPR on the administration’s view of the NDAA’s detainee affairs provision and its threat to veto the legislation. Not a lot new in the interview, but it does seem to me significant that the administration is reiterating the veto threat at this [...]
In a prior post surveying the impact of the Senate version of the NDAA bill (currently in conference negotiations), I emphasized that the Feinstein Amendment made clear that the NDAA did not alter, one way or the other, the government’s power to detain citizens. That is, the Feinstein Amendment left in place whatever authority the [...]
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