NDAA won't have the dramatic effects many predicted - Issue is moot during President Obama’s tenure

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from Marty Lederman and Steve Vladeck at Lawfare: http://www.lawfareblog.com/2011/12/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-ii/


Saturday, December 31, 2011

The NDAA: The Good, the Bad, and the Laws of War–Part II --
Section 1021 of the NDAA and the Laws of War

By Marty Lederman and Steve Vladeck*

In our companion post, we explained that section 1021 of the NDAA will not have the dramatic effects that many critics have predicted–in particular, that it will not affect the unresolved question of whether the 2001 Authorization for Use of Military Force (AUMF) would authorize a future President to place a U.S citizen or resident who is apprehended in the United States in long-term military detention. (The issue is moot during President Obama’s tenure, since “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be,” and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.” As the President reiterated today, “my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”)

In this post, we will address David Cole’s concerns about the relationship between the AUMF detention authority and the laws of war. This has the potential to be a very important question—indeed, it’s the one important substantive issue that has engendered an interpretive dispute among the judges on the D.C. Circuit. In short, and as we explain in more detail, the Obama Administration has advanced the view that the AUMF detention authority should be construed as limited and informed by the laws of war—a reading that is supported by the rulings of most habeas judges. But two judges on the court of appeals have insisted to the contrary that it would be “both inapposite and inadvisable” for courts to look to the laws of war when construing the Executive’s detention authority under the AUMF—a view that has engendered some confusion in recent habeas cases.

How does section 1021 of the NDAA affect this dispute?

read more: http://www.lawfareblog.com/2011/12/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-ii/#more-4646

related:

A Bill of Rights for Some by David Cole | NYRblog | The New York Review of Books:
http://www.nybooks.com/blogs/nyrblog/2011/dec/16/bill-rights-some/

The NDAA: The Good, the Bad, and the Laws of War–Part I
http://www.lawfareblog.com/2011/12/the-ndaa-the-good-the-bad-and-the-laws-of-war-part-i/

President’s Signing Statement on National Defense Authorization Act - December 31, 2011
http://opiniojuris.org/2011/12/31/presidents-signing-statement-on-national-defense-authorization-act/

[Xicano]

1. Why do we need this law?

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3. we don't

It's an unnecessary imposition by a fearful Congress.

as the President says in his 'signing statement':

"The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Over the last several years, my Administration has developed an effective, sustainable framework for the detention, interrogation and trial of suspected terrorists that allows us to maximize both our ability to collect intelligence and to incapacitate dangerous individuals in rapidly developing situations, and the results we have achieved are undeniable. Our success against al-Qa’ida and its affiliates and adherents has derived in significant measure from providing our counterterrorism professionals with the clarity and flexibility they need to adapt to changing circumstances and to utilize whichever authorities best protect the American people, and our accomplishments have respected the values that make our country an example for the world.

Against that record of success, some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe. My Administration has consistently opposed such measures. Ultimately, I decided to sign this bill not only because of the critically important services it provides for our forces and their families and the national security programs it authorizes, but also because the Congress revised provisions that otherwise would have jeopardized the safety, security, and liberty of the American people. Moving forward, my Administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded."

[cthulu2016]

2. Since Obama is president for life I am relieved.

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4. who asked you to be relieved?

It's clear to me (and the President as well) that this is an unnecessary imposition by Congress. It occurred because opinion in the Capitol is weighted toward limiting the President's authority (which is usually a good thing) and replacing his judgment with their own paranoia and collective political fear. President Obama did what he thought was best to address the escalating attempts to prevent him from carrying out his plans to transfer prisoners out of GITMO through civilian trials, military tribunals for others, and stepped-up reviews for the rest.