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Category Archives: Detention: Law of: Legislative Development

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

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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 . . .
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Does the Armed-Conflict Model Matter in Practice Anymore?

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

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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 . . .
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Daskal and Vladeck Working Paper on “After the AUMF”

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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 . . .
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A Quick Guide to the Lawfare Debate Over a New AUMF

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

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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 . . .
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A Statutory Framework for Next-Generation Threats

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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 . . .
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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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