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Section 1022 of the Conference version of the NDAA carries forward section 1032 of the Senate version, which has been widely described as a mandatory military detention provision for a subset of detainable persons who are non-citizens linked to specific terrorist attacks. Both critics and supporters of the bill have focused heavily on this notion, lauding or decyring it. All of that is greatly overstated, however. The final bill applies to persons who are part of al Qaeda or an al Qaeda-associated force who is not a citizen and who was part of a particular attack or planned attack. Think Abdulmutalab. At first blush, it seems as if it channels such persons ineluctably into military custody, even when captured in the US. But on closer inspection that's not at all the necessary result, for three reasons. First, the threshold decision that a particular person satisfies those conditions need not be (and certainly should not be) made instantaneously. The bill calls for the White House to develop procedures for making such determinations, without specifying time limits or otherwise micro-managing what that process might look like or how long it might take to unfold. Second, even after a decision is made that section 1022 does apply in a particular case, the requirement of military detention lasts only until a decision is made as to which "law of war" disposition for the individual is appropriate, and the bill includes civilian criminal prosecution as one of the disposition options. Simply put, the government could simultaneously determine that a person qualifies under section 1022 and that civilian trial is the proper option for that individual. Third, there is on top of all this a waiver procedure whereby the President can certify in writing to Congress that national security concerns require setting 1022 aside altogether (though as I argue above, there is really no need ever to resort to this potentially politically-costly measure). So what is really accomplished by 1022? Well, it does require articulation of the screening/slotting processes, and sharing of them with Congress such that there might be a basis for auditing/investigation how well the procedures worked (or were complied with) in particular cases. And there is the sheer symbolic impact of passing language widely perceived as requiring military detention in such cases; taking the civilian prosecution right may become politically more costly going forward, even though it is perfectly permissible under the terms of the actual statute. That's a mixed bag, really. More careful thinking and articulation of procedures can certainly be viewed positively, whereas there's not much good to be said for creating additional reasons to allow political consequences to influence disposition decisions.
Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
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