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NDAA Conference Report--A Quick and Dirty Analysis

Benjamin Wittes
Tuesday, December 13, 2011, 6:42 AM
The conference report for the NDAA is now available. Subtitle D, entitled "Counterterrorism," begins on page 653 and runs through page 685. The conferees' explanation of their choices begins on page 158 of a separate document. I will blog as I read.

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The conference report for the NDAA is now available. Subtitle D, entitled "Counterterrorism," begins on page 653 and runs through page 685. The conferees' explanation of their choices begins on page 158 of a separate document. I will blog as I read. Readers many find my earlier posts comparing the House and Senate versions of the bill (here and here) helpful as they make sense of the conference report. Here are some highlights:
  • The Senate has prevailed on the question of AUMF reaffirmation. The House bill, recall, would have contained a general reaffirmation of the AUMF, whereas the Senate language would only have reaffirmed that the existing AUMF authorized detention operations. The conference report has adopted the Senate approach. (See Sec. 1021.)
  • A watered-down version of the Senate's mandatory detention provision remains in the bill. (See Sec. 1022.) On the quickest of reads, it seems to apply only to those who are "members of" or "part of" (not supporters of) Al Qaeda and those associated forces that act in coordination with it or at Al Qaeda's direction, not to the Taliban. It does not extend to citizens and applies to permanent resident aliens only for conduct in the United States to whatever extent the Constitution permits. And it contains the following new disclaimer: "Nothing in this section 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, regardless of whether such covered person is held in military custody." To put it simply, what has emerged is mush.
  • The conferees have adopted the Senate's approach to codifying the Guantanamo review process. (See Sec. 1023.) The House had laid out detailed procedures to replace those in President Obama's executive order. The Senate, by contrast, had merely required the promulgation of procedures that tweaked aspects of the executive order around the edges. The final bill, with very minor adjustments, looks like the Senate version.
  • The Senate's requirement for new procedures for status determinations for "long-term detention" has survived--with slight tweaks. (See Sec. 1024.) The House got inserted language that clarifies that these procedures--which include counsel and a hearing before a military judge--are not required for detainees who have access to habeas. And the definition of "long term detention" is left to the Defense Department. So the provision, depending on how the executive branch implements it, could be important or could apply to a null-set of detainees.
  • The House bill's requirement that the administration create a national security protocol governing detainee interactions with the outside world has survived--but with an important change. (See Sec. 1025.) The House version required a national security protocol for each detainee. The conference report, by contrast, requires a single national security protocol governing the Guantanamo population at large.
  • The conference report unsurprisingly contains language forbidding the expenditure of fiscal year 2012 money building detention facilities in the United States to house Guantanamo detainees. (See Sec. 1026.)
  • It also contains language forbidding the use of fiscal year 2012 money to bring Guantanamo detainees to the United States--including for trial. (See Sec. 1027.)
  • It also contains the Senate version of the overseas transfer restrictions for Guantanamo detainees. (See Sec. 1028.)
  • The House's requirement for consultation between prosecutors and the Pentagon before initiating a terrorist prosecution has survived for foreign Al Qaeda figures and detainees abroad. (See Sec. 1029.)
  • It also contains the uncontroversial clarification of the right to plead guilty in military commission capital trials. (See Sec. 1030.)
  • The House's prohibition of civilian trials is gone.
We will have a great deal more to say about this latest text over the course of the next few days.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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