Sunday, January 1, 2012

The NDAA: The Good, the Bad, and the Laws of War–Part I

Source: Lawfare

Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law. One of the major disputes concerns whether and howi the NDAA might alter the status quo.

In the President’s words, section 1022 is “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.”

Fortunately, amendments adopted late in the legislative process—particularly a change to the section 1022 waiver provision and the addition of a new provision that “[n]othing in [section 1022] shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person”—will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments 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”; that “our military does not patrol our streets or enforce our laws—nor should it”; 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.”

Thanks to an amendment introduced by Senator Feinstein, the detention authorization provision (section 1021) does not “affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.” For good measure, section 1022 also provides that its purported presumption of military detention “does not extend to citizens of the United States.”

This is a Suspicious News Bried. Read more at Lawfare

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