Detention: Law of: Legislative Development

Udall Amendment on NDAA

By Benjamin Wittes
Friday, November 25, 2011, 5:47 PM

Senator Mark Udall of Colorado is pushing an amendment to the NDAA to strip the bill of its detainee-affairs provisions and require further study of the relevant issues from both the executive branch and relevant congressional committees. Here is the amendment, and here is Sen. Udall's statement about it.

As Lawfare readers know, my feelings about both the House and Senate versions of these provisions are mixed. Congress's sudden interest in legislating the parameters of U.S. detention authority strikes me as healthy; indeed, I have been calling for just such a thing for years. I believe in legislation that would authorize the detention we're engaged in--or even, as the House bill aims to do, the larger conflict we're engaged in--and codify something like the administration's Guantanamo review process in law. On the other hand, the transfer restrictions and the mandatory detention provisions and the prohibition against civilian trials in the House bill, and the other ways in which these bills needlessly micromanage complex areas of executive discretion are very very bad. The result is that a proposal like Udall's puts me in a difficult position: How much do I value this particular legislative baby when soaked in this particular bathwater? And if I'm not allowed to drain the water, do I chuck both or keep both?

While my preference is certainly not to emerge with no legislation in this space, if I were a senator, I would probably support Sen. Udall's amendment, for two reasons--one tactical and one substantive.

The substantive reason is that I think that no legislation at all is probably better at this stage than a bill laden with the transfer restrictions and, particularly, the mandatory detention language. While I would prefer good legislation to such a binary choice, if you force me to take or reject as a package the civic housekeeping value of having Congress finally put its name behind American detention operations--which is considerable--and the very practical damage of shackling the executive branch in its handling of difficult cases, I reject the package.

The tactical reason is that after the Senate passes the NDAA, there's still going to be a conference committee. The House bill too has positive and negative provisions in it--including some that mirror those the Senate is now wrestling with. The more the two houses agree on bad provisions, the more difficult it will be to keep them out of the conference report. By contrast, were the Senate version to have no detainee language at all, I suspect that House Armed Services Chairman Buck McKeon would still push very hard for some version of his AUMF reauthorization--including the authorization for detention--and some codification of the review process. So losing them from the Senate bill now would not necessarily mean losing any chance of including some (hopefully improved) version of McKeon's proposals in the final package.

So all in all, count me as a supporter--with regrets and anxiety--of the Udall amendment.