Saturday, December 31, 2011

The Detainee Provisions of the National Defense Authorization Act

Marty Lederman

As you may have read, the President today signed the NDAA, which contains several controversial provisions concerning detainees, GTMO, etc. The President's signing statement can be found here.

There's been a great deal of debate, confusion and simple misrepresentation concerning what, exactly, the detainee provisions say and what effect they'll have. With Steve Vladeck, I've posted some of my own observations about the new legislation, in two parts, at Opinio Juris. The first part generally describes the most problematic parts of the legislation, but also cautions that much of the worst of what you've heard isn't very accurate. Perhaps the most important impact of the NDAA, however, may be with respect to a question that has received comparatively little attention–namely, the effect of the laws of war on the Executive’s military detention authority. As we explain in our companion post, although the NDAA by its terms does not “limit or expand” the President’s detention authority, it is best read to clarify Congress’s understanding of how the existing AUMF authority should be construed—namely, as limited and informed by the laws of war, as the governing opinion in Hamdi instructs and as the Executive branch has been arguing since 2009.

Wishing all Balkinization readers a good and peaceful new year . . .