Detention: Law of: Legislative Development

Gregory McNeal on the 1022 Procedures

By Benjamin Wittes
Friday, March 2, 2012, 4:49 AM

Writing over at Forbes, Pepperdine law professor Gregory McNeal has this thoughtful piece about the President's policy directive. It contains some interesting ruminations on the breadth of some of the waivers the directive contains. While McNeal is sympathetic to the guidance in general, he does question whether two of the waivers--concerning lawful permanent residents and concerning those held in state or local custody--exceed the statute's authority to waive the mandatory custody requirement for national security reasons:

I find these difficult to square with the requirement that the waiver be “in the national security interests of the United States.”  Nothing in the language of either waiver triggers the type of circumstances traditionally associated with national security interests (no foreign relations issues, no intelligence issues, no ongoing investigations or counterterrorism cooperation issues).  Thus, for these waivers to be valid, we must conclude that the President is entitled to determine, without the benefit of any facts, that military custody is simply never in the national security interests of the United States when a person captured in the course of hostilities authorized by the AUMF happens to be a lawful permanent resident or someone arrested by local authorities.  There may be a national security interest buried in those waivers, but I’m not seeing it.  Of course, that fact won’t have much of an impact, as this is a matter that will have to be fought out between Congress and the President.  If last year’s fight over the NDAA is a guide, I don’t think anyone has the stomach for a rematch.