Detention & Guantanamo

Would the NDAA Require Lawyers for Combat-Zone Captures?

By Robert Chesney
Thursday, December 1, 2011, 4:15 PM

There is a lot to talk about in regard to S. 1867, the NDAA bill currently under debate, other than section 1031 and 1032.  Take section 1036.  It's rather amazing this provisions hasn't generated more attention.  Here's the text:

SEC. 1036. PROCEDURES FOR STATUS DETERMINATIONS.

      (a) In General- Not later than 90 days after the date of the enactment of this Act , the Secretary of Defense  shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization  for Use of Military Force (Public Law 107-40) for purposes of section 1031.
      (b) Elements of Procedures- The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization  for Use of Military Force:
        (1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.
        (2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.
      ...

This step might make sense as a matter of policy for non-combat captures (i.e., captures of persons under color of the AUMF but outside the context of Afghanistan).  I have some sympathy with that view, though it seems to me to be surplusage given the existence of habeas review in that setting.  Such safeguards might even make sense as a policy matter for combat captures in Afghanistan itself, particularly if one thinks that we should be focused on COIN and that this change would facilitate larger strategic aims (though I think the revised Detainee Review Board procedures already have made great improvements in that regard).  But make no mistake--this would be cited in the future, in some quarters, as evidence of state practice supporting a claim that such procedures are legally required in the NIAC setting.  If section 1036 is adopted, therefore, it might be wise to state explicitly in the text (however unconventional this might seem) that the extension of these safeguards reflects a policy preference and not a sense of legal obligation.