Latest in NDAA

NDAA

Oversight of DOD Kill-Capture Missions Outside Theaters of Major Hostilities: What May Change Under the Next NDAA?

Despite the substantial overlap between counterterrorism activities undertaken by the CIA and JSOC, we tend to pay a lot more attention to the details of the congressional oversight framework for the former as compared to the latter. The NDAA often addresses CT oversight relating to DOD activities, however, and this year is no exception. What follows below is an attempt to provide a user-friendly guide to the proposals on the table.

I. Increasing the pace of quarterly operational briefings regarding CT:

NDAA

President Obama's NDAA Signing Statement on Guantanamo

On Wednesday, November 25th, President Barack Obama signed the 2016 National Defense Authorization Act into law.

In addition to the added and renewed restrictions (sections 1031 and 1032) on the president's ability to transfer detainees from Guantanamo Bay to the United States for continued detention, the bill includes two provisions limiting the interrogation activities of agents of the U.S. government.

Guantanamo

Detainee Transfer Restrictions and the Captures Clause of the U.S. Constitution

Both Jack Goldsmith and Harold Koh have recently written about the constitutionality of congressional restrictions on the transfer of prisoners. The President’s veto last week of the NDAA was based in part on his objection to the restrictions it places on such transfers.

Detention & Guantanamo

A Weak Case For the Unconstitutionality of the Detainee Transfer Restrictions (and a Glance at the Bigger Picture)

I noted earlier this year that the administration might be building a foundation for a constitutional argument to disregard congressional transfer restrictions as a basis for closing GTMO. Last week Harold Koh used the President’s message in connection with his NDAA veto as an occasion to add to that foundation.

Targeted Killings

Eliminating the Afghanistan Exception to the Oversight Regime for Military Kill/Capture Ops

A little-noticed provision of the National Defense Authorization Act for Fiscal Year 2016 might expand Congressional oversight of kill/capture operations conducted by the U.S. military. The change arguably reflects the ongoing process whereby U.S. involvement in Afghanistan is coming to resemble our involvement in Yemen and Somalia (and we now might add Libya), and constitutes the latest development in the long-running process whereby we are evolving a legal architecture for kinetic operations in situations that are not obviously full-fledged combat operations.

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