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The Next NDAA: An Overview of Detention-Related Provisions

Robert Chesney
Monday, May 7, 2012, 3:23 PM
HASC Chairman Buck McKeon today released a draft NDAA for FY '13, which will head to the full committee for markup on the 9th.  The text of the bill as it currently stands is posted here, McKeon's announcement and overview is here, and an accompanying statement for Ranking Member A

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HASC Chairman Buck McKeon today released a draft NDAA for FY '13, which will head to the full committee for markup on the 9th.  The text of the bill as it currently stands is posted here, McKeon's announcement and overview is here, and an accompanying statement for Ranking Member Adam Smith is here. Below I provide a short overview of the detention-related provisions, which are not terribly interesting except for what I would call the "Warsame rule" (section 1040) and the "Daqduq rule" (section 1041): Section 1031 - "Findings on Detention Pursuant to the [AUMF]" - This section would enumerate various detention-related "findings," to uncertain effect.  The first finding simply notes the passage of the 2001 AUMF.  The second depicts the holding in Hamdi v. Rumsfeld in a manner that arguably makes it seem to encompass more than just the captured-in-Afghanistan scenario; this will likely generate some pushback.  The third provides extensive quotations from Hamdi regarding the due process rights of a citizen held under color of the AUMF.  The fourth notes the extension of habeas to GTMO in Boumediene. The fifth notes that the MCA '06 only authorized military commission proceedings as to non-citizens. The sixth notes that last year's NDAA affirmed the existence of detention authority. The seventh notes that the NDAA definition of the scope of that authority tracked the habeas litigation position of the Obama administration, which has been upheld in the DC Circuit.  The eighth notes that the NDAA FY '12 requires SecDef to brief Congress on how the detention authority is used.  And the ninth quotes the NDAA '12's language to the effect that nothing in that act should be construed to alter existing law relating to detention of citizens or other persons captured in the US. Section 1032 - "Findings Regarding Habeas Corpus" - A strange provision.  It first quotes the Suspension Clause, and then gives a Supreme Court quote on the importance of habeas. Section 1033 - "Habeas Corpus Rights" - This section states that neither the AUMF nor the NDAA FY '12 should be construed to deny access to habeas to a person "detained in the United States pursuant to the [AUMF]."  I would think that would go without saying at this point, but if it even arguably needs to be said, it is good to say it. Section 1034 - There doesn't appear to be a section 1034 at this point. Section 1035 - "Prohibition on travel to the United States for Certain Detainees Repatriated to the Federated States of Micronesia, the Republic of Palau, and the Republic of the Marshall Islands" - This of course applies to persons previously held at GTMO.  Self-explanatory beyond that, I think. Section 1036 - "Prohibition on the use of funds for the transfer or release of individuals detained at [GTMO]"  - Banning use of NDAA funds to bring (i) KSM or (ii) any other person held at GTMO on or after 1/20/09 into the United States. Section 1037 - "Requirements for certifications relating to the transfer of detainees at [GTMO] to foreign countries and other foreign entities" - This is largely the same as in last year's NDAA. Section 1038 - "Prohibition on use of funds to construct or modify facilities in the [US] to house detainees transferred from [GTMO]"  - This is the same as in last year's NDAA. Section 1039 - "Reports on recidivism of individuals detained at [GTMO] that have been transferred to foreign countries" - Requires annual reports on "factors causing or contributing to recidivism" of GTMO detainees, and on the effectiveness of international agreements relating to GTMO transfers. Section 1040 - "Notice and report on use of naval vessels for detention of individuals captured outside Afghanistan pursuant to the [AUMF]" - We'll have to call this one the "Warsame rule."  It provides that, in any case involving the capture of a person outside of Afghanistan under color of the AUMF where the person is then taken to a naval vessel, the executive branch must provide notice of the detention to SASC and HASC within five days of the person's arival on the vessel.  This section further provides that SecDef must provide SASC and HASC with a report detailing the procedures used in such cases,  discussing force protection issues such detentions may raise, noting the impact of such detention on the actual missions of such vessels, and noting "any restirctions on long-term detention of individuals on [such] vessels."  The report is to be unclassified, though there can be a classified annex. Section 1041 - "Notice required prior to transfer of certain individuals detained at the Detention Facility at Parwan, Afghanistan." - And we'll have to call this one the "Daqduq  rule."  I've long wondered when we would see this:  a legislative constraint on transfers from custody not out of GTMO, but out of the DFIP.  Section 1041 would require 10 days' advance written notice before the US could transfer a non-US, non-Afghan from custody at the DFIP and into the custody of another state.  The notice, which must be provided by the SecDef, must include an assessment of the threat posed by the person and the security situation in the recipient state; a description of the receiving state's capacity for prosecution (including a description of the evidence thought to be admissible there in this particular case) if the person is to be prosecuted after transfer; a description of the receiving state's rehab processes if rehab is the plan; and if the transfer is to the Afghans themselves, a description of Afghanistan's capacities to prosecute or detain such persons for the long term.  Not just SASC and HASC, but also House Foreign Affairs and Senate Foreign Relations are to receive the notice.   Now, I'm not sure just how much time is left before the ongoing process of transferring control of the DFIP to the Afghans will be complete, but it seems to me quite possible that it will be done before the NDAA FY '13 becomes law, mooting this provision.

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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