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Category Archives: NDAA

The NDAA, and the Latest in Passing the Buck on GTMO-Closure

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Monday, May 18, 2015 at 10:02 AM

On Thursday, the Senate Armed Services Committee passed its markup of the annual defense authorization bill by a vote of 22-4. Shortly after the vote, committee chairman Senator John McCain told reporters that “very importantly, this legislation contains a bipartisan compromise on the issue of the detention facility at Guantanamo Bay.” Some news outlets apparently read . . .
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This Morning’s HASC NDAA Markup

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Wednesday, April 29, 2015 at 9:57 AM

A markup of the FY2016 defense bill—which includes, as per usual and among other things, provisions restricting transfers of Guantanamo detainees—will get underway at 10:00 a.m. at the House Armed Services Committee. Embedded video is below; a copy of the Chairman’s mark can be found here.  (Interested readers can find NDAA-related background here, too.)

Referred for Prosecution But Never Tried: The (Latest) Guantánamo Math Problem

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Thursday, April 23, 2015 at 11:47 AM

Everyone should read Bobby’s post from last night on the potential approach of an endgame for the 122 detainees still in custody at Guantánamo. As Bobby points out, even if the government (miraculously) is able to transfer the 57 detainees cleared for transfer, that still leaves two categories of detainees in need of a solution: those the government . . .
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Text of Senator Ayotte’s GTMO Transfers Bill

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Tuesday, January 13, 2015 at 2:20 PM

As promised, here it is. The rather unfortunate-seeming proposal provides, in full: 114TH CONGRESS 1ST SESSION S.__ To extend and enhance prohibitions and limitations with respect to the transfer or release of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, and for other purposes. IN THE SENATE OF THE UNITED STATES Ms. AYOTTE (for herself, Mr. GRAHAM, . . .
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Law Enforcement as a Counterterrorism Tool

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Monday, January 12, 2015 at 10:39 AM

As I read the exchange between Bryan, Wells and Jack about law enforcement versus military methods of dealing with terrorism, I was reminded of a speech I gave at the Brookings Institution in 2010, which was later turned into an article.  And, perhaps not surprisingly, I found that I continue largely to agree with myself, . . .
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On War and Crime

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Saturday, January 10, 2015 at 12:00 PM

Yesterday at Lawfare, Bryan Cunningham sought to breathe new life into the “military versus law enforcement” debate over terrorism, along the way deeming the horrific assaults in Paris to be “consequences” of France’s police-centric strategy. He thus finds fault with the current counterterrorism regime generally, and invites others to join in a broader discussion about . . .
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The 2015 NDAA, As Negotiated by SASC and HASC

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Friday, December 5, 2014 at 10:39 AM

Here is the text of the critical defense legislation, which passed the House earlier this week.  

Vice-President Cheney’s Funny Criticism of President Obama for Not Complying with the GTMO Notice Requirement

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Wednesday, June 4, 2014 at 4:46 PM

I laughed when I heard former Vice-President Cheney on the Laura Ingraham show (approximately the 8:15-9:10 mark) criticizing President Obama for not notifying Congress under Section 1035 of the 2014 NDAA about the Bergdahl swap.  Ingraham complained about the failure of members of Congress to stand up to “the flouting of American law,” including the “failure . . .
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The Administration’s New (and Unconvincing) Reading of the Notice Requirement for GTMO transfers

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Tuesday, June 3, 2014 at 11:04 AM

The Obama Administration has backed away from its suggestions over the weekend that it failed to comply with the notice requirement in Section 1035 of the 2014 NDAA on constitutional grounds.  It is now claiming, as Marty Lederman notes, that it complied with the statute because it determined “that the notification requirement should be construed not to . . .
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One or Two Other Statutes the President Likely Disregarded in The Bergdahl Deal [UPDATED]

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Monday, June 2, 2014 at 7:45 PM

Earlier today I explained why the President almost certainly disregarded Section 1035 of the 2014 NDAA when he swapped the GTMO detainees for Bergdahl.  The President probably disregarded another statute as well, Section 8111 of the Fiscal Year 2014 Consolidated Appropriations Act, which provides: None of the funds appropriated or otherwise made available in this Act may . . .
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The President Pretty Clearly Disregarded a Congressional Statute in Swapping GTMO Detainees for Bergdahl

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Monday, June 2, 2014 at 1:03 PM

Marty Lederman tries mightily to interpret Bergdahl’s release as consistent* not inconsistent with the wishes of Congress, but I don’t think he succeeds. Section 1035 of the 2014 NDAA authorizes the Defense Secretary to “transfer or release any individual detained at Guantanamo” if he makes certain certain determinations, and it further requires without exception that the . . .
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Sgt. Bowe Bergdahl Freed in Exchange for Transfer of Five GTMO Detainees

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Saturday, May 31, 2014 at 1:40 PM

Some wonderful (and quite NDAA-relevant) news, here reported by Talking Points Memo:  WASHINGTON (AP) — The only American soldier held prisoner in Afghanistan has been freed and is back in U.S. custody after nearly five years of captivity, U.S. officials said Saturday. The officials said the Taliban agreed to turn over Sgt. Bowe Bergdahl in exchange for . . .
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Habeas and the Military Commissions After Aamer

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Friday, March 21, 2014 at 9:36 AM

I’ve already written at some length about the D.C. Circuit’s decision last month in Aamer v. Obama, in which a divided panel held that the Guantánamo detainees may challenge the conditions of their confinement through habeas petitions, notwithstanding the language of the jurisdiction-stripping provisions of the Military Commissions Act of 2006. As Judge Tatel explained, . . .
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Josh Gerstein on Piracy and Terrorism Trials

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Monday, February 10, 2014 at 3:42 PM

Over at Politico, Josh Gerstein has an interesting piece on the Ali piracy case, and its potential implications for terrorism cases.  The article—which quotes Jen Daskal and Cully Stimson, among others—opens: The failed prosecution of an alleged Somali pirate — and the fact that that failure could leave him living freely, and permanently, inside U.S. borders — . . .
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The ATA Amendment and Congressional Earmarks for Plaintiffs’ Lawyers

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Friday, December 27, 2013 at 3:06 PM

When President Obama signed the NDAA of 2014 yesterday, the Act did not include the amendment to the Anti-Terrorism Act, about which I posted earlier this month that would have allowed suits by non-US nationals against persons for “aiding and abetting” acts of terrorism.   The amendment had been pushed by plaintiffs’ lawyers seeking to reverse . . .
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This Year’s NDAA: A Big Win for the Administration on Guantanamo

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Tuesday, December 10, 2013 at 10:26 PM

I have only had a chance to look briefly at the Guantanamo-related provisions of the House-Senate compromise NDAA, but the text looks to me like a big win for the Obama administration—and for common sense. The administration will cast this as a step forward for closing Guantanamo. I don’t care a fig about whether Guantanamo . . .
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Full Text of and Explanatory Statement on this Year’s NDAA

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Tuesday, December 10, 2013 at 9:13 PM

In case you’re having trouble sleeping tonight, here is the 1,105-page full text of the compromise NDAA and the mere 532-page Joint Explanatory Statement on the bill. I’ll have comments as soon as I go through the material in here of Lawfare-relevance.

Guantanamo Provisions in Compromise 2014 NDAA

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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 . . .
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Another 2014 NDAA “Ornament”: FISA Disclosures

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Monday, December 2, 2013 at 7:33 PM

As we’ve noted, amendments spanning several issues, including cybersecurity, and anti-terrorism laws, have been put forth as add-ons to the 2014 National Defense Authorization Act. And there are several proposals aiming to undo the Senate Armed Services Committee’s more flexible Guantanamo transfer provisions that made it into the bill. But, this year’s NDAA debate wouldn’t be complete . . .
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NDAA Amendment Could Make Anti-Terrorism Act a New Alien Tort Statute

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Sunday, December 1, 2013 at 10:51 PM

When the Senate returns on December 9 to take up the National Defense Authorization Act, one of the more than 500 amendments Senators will consider is a provision that would amend the Anti-Terrorism Act to allow suits by non-US nationals against persons (including corporations) for “aiding and abetting” acts of terrorism.  Although perhaps not intended . . .
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