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Tag Archives: NDAA

Two Legal Takeaways from Yesterday’s HASC Hearing

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Thursday, June 12, 2014 at 9:19 AM

Yesterday’s HASC Committee Hearing (video here) on the Bergdahl swap was pretty eventful.  At least two important legal issues were discussed: the legality of not notifying Congress about the swap, and the legal consequences of the end of the Afghan conflict.  The first has received the most attention, but the administration arguably made some underappreciated news . . .
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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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Congressional Control of Intelligence Programs (sometimes)

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Sunday, January 26, 2014 at 7:03 PM

In the last ten days, an interesting controversy has bubbled up over congressional control of the drone program.  The quarrel, which has been both internal to the Senate and between the Congress and the Executive, raises some important issues regarding Congress’s ability to control controversial but classified programs (such as the current drone program and . . .
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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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President Obama Signs 2014 NDAA, Releases Statement on GTMO Provisions

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Thursday, December 26, 2013 at 5:18 PM

The president’s statement today upon signing the 2014 National Defense Authorization Act focuses almost exclusively on the provisions related to the detention facility at Guantanamo Bay. He acknowledges the more flexible transfer provisions, but concludes that they may violate separation of powers principles. Here’s the full text of the statement: Statement by the President on . . .
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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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HASC Chairman’s Mark of the 2014 NDAA

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Tuesday, June 4, 2013 at 2:34 PM

Apropos of Jack’s post: here’s the Chairman’s mark of the National Defense Authorization bill for 2014. Among many, many other things, the draft legislation requires the Secretary of Defense to notify congressional defense committees, afterwards, of certain kill or capture operations conducted by the armed forces abroad.  The bill also calls for the Secretary to submit . . .
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Motions on Clapper‘s Implications for Standing in the Hedges Second Circuit Appeal

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Saturday, April 6, 2013 at 1:35 PM

Peter Margulies recently discussed the effect of the Supreme Court’s recent decision in Clapper v. Amnesty International USA denying standing to plaintiffs challenging the NSA’s warrantless wiretapping program on the ongoing litigation in Hedges v. Obama. (Steve made a similar argument last May, before the Court decided Clapper.) Hedges, you will recall, is a challenge to the . . .
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SecDef Names Interim Convening Authority For Military Commissions

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Thursday, March 21, 2013 at 9:04 PM

So we learn from this announcement, released this afternoon by the Department of Defense: Secretary of Defense Chuck Hagel has designated Honorable Paul L. Oostburg Sanz to serve as the convening authority for military commissions. Mr. Oostburg Sanz is currently the general counsel of the Department of the Navy and will serve as convening authority . . .
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In Defense of the Administration on Targeted Killing of Americans

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Wednesday, February 27, 2013 at 10:00 AM

In writing my testimony for today’s House Judiciary Committee hearing on drones and targeted killing of U.S. citizens overseas, I found myself writing a more complete explication of the essential legal rationale underlying the administration’s position on the subject than I have, to date, set down in one place. Some of it was drawn from . . .
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State/DoJ Assert Immunity for Former Pakistani Intelligence Chiefs…and the President of Cameroon

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Monday, February 11, 2013 at 7:46 PM

The distraction of the NDAA and the drone controversy led me to miss two other important lawfare developments in December: the Obama Administration asserted immunity for foreign government official defendants in two Alien Tort Statute lawsuits. Of the two assertions of immunity, the more significant came in an ATS suit filed in the Eastern District of New York against the . . .
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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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Reply Brief Filed in Hedges

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Friday, December 21, 2012 at 6:41 AM

The government has filed its reply brief in Hedges. The new brief rounds out the briefing, joining the government’s opening brief and the appellees’ brief—along with a bunch of amicus briefs. It opens: We explained in our opening brief that this suit, brought by a handful of journalists and activists, should have been dismissed for lack of . . .
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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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NDAA and Cybersecurity Redux — CORRECTION

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Wednesday, December 19, 2012 at 12:25 PM

As Bobby has already noted the conference report on the NDAA was filed last night.  Some readers may recall that I was concerned about section 936 of the Senate version of the bill – a provision that requires Defense contractors to report cyber breaches without affording them liability protection and without allowing DoD to share . . .
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