Editor's note: Several hours after we published this post, the report described below became available online courtesy of The New York Times. The Times also provides more details on the previously undisclosed Dec. 6, 2017 attack in Niger noted briefly in the report and below: Nigerien and U.S.
Latest in NDAA
President Donald Trump has signed the National Defense Authorization Act for fiscal year 2018. Read the conference report here and Lawfare's previous coverage highlighting parts of the bill here. The president's signining statement is below:
Last Thursday, the conference committee for the National Defense Authorization Act (NDAA) for fiscal year 2018 filed its report reconciling the differences between the House and Senate versions of the legislation adopted earlier this year, completing one of the final steps in the NDAA process.
The conference report for the National Defense Authorization Act (NDAA) for fiscal year 2018 was released on Nov. 9. You can read the full document below:
The Senate voted 61 to 36 on Wednesday to table Senator Paul Rand’s (R-KY) amendment to the 2018 NDAA, which would have repealed the 2001 and 2002 Authorization for Use of Military Force (AUMF).
Expanding Congressional Oversight of Kill/Capture Ops Conducted by the Military: Section 1036 of the NDAA
The National Defense Authorization Act for Fiscal Year 2017 ("NDAA") is likely to complete its journey into law this week, and so the time has come to spotlight some of the nuggets in it that might matter to Lawfare readers. One of the most important, in my view, involves the little-known, emergent oversight architecture associated with kill/capture operations conducted by the military in locations other than areas of "theaters of major hostilities."
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:
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.
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.
Granted, the NDAA FY'16 has just been vetoed, and there probably aren't enough votes in Congress to override. But should it be the case that a deal gets worked out on the budget squabble, we may well see a version of it signed into law eventually. What else is interesting about it, besides the GTMO transfer constraints?