Matt Waxman (who served as Deputy Assistant Secretary of Defense for Detainee Affairs from 2004 to 2005) and I have written a short article for the Council on Foreign Relations expressing concern about the detainee provisions of the NDAA, based on our experience handling detainee matters during the Bush Administration.
We state: "The detainee provisions are apparently intended by their drafters to provide tough counterterrorism powers, but in practice they could have a detrimental impact on U.S. counterterrorism operations. Indeed, while originally drafted by Senate Republicans, these legislative encroachments on the president's authorities would likely have been as strongly opposed by the Bush administration as by the Obama administration."
We conclude: "This year's National Defense Authorization Act so far has been a missed opportunity for the Executive branch and Congress to work together and put U.S. detention policy on sounder footing for the long term. President Obama should have followed through on his pledge in his May 2009 National Archives Speech to work with Congress to develop an appropriate legal regime for detention of terror suspects who cannot be prosecuted or released, and Congress should have been more responsive to the concerns of counterterrorism officials in the Executive branch. Many of the hard long-term questions this administration inherited--such as who may be detained, where they should be held, and pursuant to what legal processes--remain unresolved. This legislation, if enacted, will make it even harder for this and the next president to achieve lasting solutions."
The full text of our article is here.