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Category Archives: Detention: Law of: Legislative Development

Detention in Afghanistan: The End Draws Closer

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Friday, January 11, 2013 at 4:25 PM

The meeting between Presidents Obama and Karzai today appears to have produced an agreement that will revive the process of shutting down U.S. detention operations in Afghanistan.  As reported in the Wall Street Journal: With Mr. Obama at his side, Mr. Karzai said on Friday that the two have agreed on what he called the complete . . .
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The 2013 NDAA Signing Statement: No Better Than the 2012 Version

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Friday, January 4, 2013 at 4:52 PM

As Ben noted the other day, the Obama administration issued a signing statement on the new NDAA arguing that its Guantánamo detainee-transfer restrictions are unconstitutional as a violation of the separation of powers. The language is similar to last year’s signing statement objecting to the 2012 NDAA’s transfer restrictions. I published a brief student comment . . .
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President Obama Signs the NDAA 2013

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Thursday, January 3, 2013 at 8:11 AM

Told you so. President Obama has signed this year’s NDAA–along with a meek kind of signing (whining?) statement. Here is the statement’s discussion of the detention-related provisions–an account of which can be found in my previous post: Several provisions in the bill also raise constitutional concerns. Section 1025 places limits on the military’s authority to transfer third . . .
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What is in the New NDAA, Why it Warrants a Veto, and Why it Probably Won’t Get One

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Saturday, December 22, 2012 at 9:36 AM

So what exactly is in the NDAA conference report that is prompting the agitation for a presidential veto? Here is a quick and dirty summary of “Subtitle D—Counterterrorism”—along with an explanation of why President Obama ought to veto the bill but probably won’t. I’ve flagged in red the provisions that are actually a problem. Section 1021 . . .
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The NDAA and Detention in Afghanistan: Congress Takes a Step Toward Greater Involvement

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Thursday, December 20, 2012 at 6:21 PM

Another noteworthy development in the conference version of the NDAA is section 1025.  Think of this as a new direction in the congressionalization of detention operations in Afghanistan. What do I mean by congressionalization?  I admit I just made that term up.  So let me explain.  We’re all familiar with the idea of judicialization of detention–i.e., the gradual assertion of some . . .
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Agreement Reached on the NDAA

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Tuesday, December 18, 2012 at 11:35 PM

Politico reports that Senate and House negotiators have reached an agreement on the NDAA, with votes in both houses expected later this week…and then, on to the White House.  The full text is available here.  As for the highlights, perhaps the most notable thing from the perspective of the issues we’ve been tracking is that the . . .
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CRS Report on “Detention of U.S. Persons as Enemy Belligerents”

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Monday, December 10, 2012 at 4:12 PM

The Congressional Research Service published on December 4 a report entitled “Detention of U.S. Persons as Enemy Belligerents,” which the Federation of American Scientists has posted. Its summary reads: The detainee provisions passed as part of the National Defense Authorization Act for FY2012, P.L. 112-81, affirm that the Authorization for Use of Military Force (AUMF), . . .
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Jonathan Hafetz Replies re: Non-Citizens and the New Feinstein Amendment

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Sunday, December 9, 2012 at 9:53 PM

Below the fold, I’m pasting in a reply by Jon Hafetz from Seton Hall to last Friday’s post by Marty Lederman and me on the new Feinstein Amendment and the military detention of non-citizens apprehended within the United States–which was itself a response to Jon’s post @ Opinio Juris earlier last week:

Military Detention of Non-Citizens and the Not-So-Negative Implications of the New Feinstein Amendment

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Friday, December 7, 2012 at 8:18 AM

As Wells and Steve noted last week, the Senate approved the “Feinstein Amendment” to the FY2013 National Defense Authorization Act (NDAA). The Amendment, if enacted, would impose a clear statement rule for the detention of U.S. citizens and lawful permanent residents (LPRs) apprehended within the United States, the effect of which would guarantee that such . . .
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Senate NDAA Amendments Update

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Tuesday, December 4, 2012 at 9:41 PM

As readers know, last Thursday the Senate approved Senator Feinstein’s amendment to the NDAA, regarding the domestic detention of citizens and lawful permanent residents. That wasn’t all.  Now, after further debating and voting, the Senate’s updated bill also conditions the availability of certain funds for the Executive Office of the President on prior congressional notification regarding . . .
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Domestic Military Detention After the (New) Feinstein Amendment

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Friday, November 30, 2012 at 6:57 PM

Wells is exactly right–and Senators Levin and Graham are exactly wrong–about the implications of last night’s Senate vote approving Senator Feinstein’s amendment to the FY2013 National Defense Authorization Act. Wells linked to the amendment, but here is the relevant language of what would be new 18 U.S.C. § 4001(b): (1) An authorization to use military . . .
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Can Congress be Express Without Being Explicit? Senate Debate on the NDAA’s Domestic Detention Provision

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Friday, November 30, 2012 at 12:09 PM

[Updated 3:08 p.m] Last night, the Senate approved Senator Dianne Feinstein’s amendment (No. 3018) to the pending NDAA bill, regarding the military detention of citizens and lawful permanent residents.  The vote was 67-29. As Lawfarers well know by now, the amendment says that authorizations to use force and like statutes will not authorize the military detention of . . .
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Administration Statement of Policy on Senate NDAA Bill

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Thursday, November 29, 2012 at 4:09 PM

Here’s the Obama Administration’s statement of policy regarding the Senate’s version of the NDAA for FY2013.   The document begins as follows: The Administration appreciates the Senate Armed Services Committee’s continued support for our national defense and supports a large number of the provisions in S. 3254, the National Defense Authorization Act for FY 2013, . . .
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Senate NDAA Amendments Round-Up

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Thursday, November 29, 2012 at 12:20 PM

You want ‘em?  We got ‘em. Here are some more counterterrorism-relevant amendments to the Senate’s version of  NDAA 2013—all offered by Senator Sessions: Nos. 3009 (conditioning the availability of certain funds for the Executive Office of the President on prior congressional review of bilateral security agreements between the U.S. and Afghanistan), 3010 (requiring congressional notification when . . .
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The Senate NDAA Bill – No Restriction on GTMO Transfers to U.S.?

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Wednesday, November 28, 2012 at 6:44 PM

Apropos of the amendment proposed by Senator Feinstein and others, and tonight’s NDAA discussion in the Senate, here’s a quick review of S. 3254, the NDAA 2013 bill that the Senate Armed Services Committee unanimously approved earlier this year. The bill’s “Counterterrorism” subtitle contains only one provision, Section 1031.  This preserves two GTMO-relevant restrictions from the NDAA . . .
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Feinstein et al Detention Amendment

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Wednesday, November 28, 2012 at 5:07 PM

Senator Dianne Feinstein—along with Senators Lee, Coons, Collins, Paul, Lautenberg, Gillibrand, and Kirk—have introduced this amendment to the current NDAA, now on the Senator floor.

New York Times Renews Call for Guantánamo Prison Closure

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Monday, November 26, 2012 at 3:33 PM

As Ritika noted earlier today, the New York Times editorial page has renewed its call for the Obama administration to close the prison at Guantánamo Bay. (I’ll take it from Ben’s lack of snark that he judges the Times to have gotten its facts right, so onward with the merits of its argument.) Taking the . . .
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Senator Paul and the Due Process Guarantee Act

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Tuesday, November 20, 2012 at 2:07 PM

Senator Rand Paul’s rumored detention amendment got me reminiscing about S.2003, better known as the Due Process Guarantee Act (“DPGA”). Remember this?  It was Senator Feinstein’s proposal to clarify that force authorizations and like statutes would not be read so as to permit the military detention of citizens or LPRs apprehended within the United States—that . . .
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Tweaking Senator Paul’s NDAA Detention Language

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Monday, November 19, 2012 at 11:28 AM

In his post on Senator Rand Paul’s proposal regarding citizens and the NDAA, Bobby highlights a recurring and important question: why is it so hard for ostensibly civil libertarian legislators explicitly to oppose the domestic detention of U.S. citizens?  To date, I believe only one bill—that offered by Representatives Adam Smith (D-WA) and Justin Amash . . .
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On Amending the NDAA to Preclude Military Detention of Citizens Captured in the U.S.

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Monday, November 19, 2012 at 9:35 AM

Ben notes what appears to be a draft proposal from Senator Rand Paul to amend the NDAA so as to address situations involving American citizens captured inside the United States.  While the context suggests that the drafters’ aim might be to preclude the use of military detention in such cases, it seems to me that their text . . .
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