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Tuesday, May 24, 2011

The Obama Administration and the NDAA

I've been rather critical of the Obama Administration, both on this blog and elsewhere, for what might best be described as a frustrating degree of timidity when it comes to some of the key national security debates of the day, particularly where detainee issues are concerned.  Thus, although I had been troubled by the Administration's silence on the "new AUMF" buried within the House version of the National Defense Authorization Act, and the restrictions on the President's power to transfer detainees either stateside or to third-party countries, it hadn't exactly been surprising...

With that in mind, I was quite pleased by the discussion of the detainee provisions in the NDAA contained within the Statement of Administration Policy released today. Quoting from it in relevant part:

The Administration strongly objects to section 1034 which, in purporting to affirm the conflict, would effectively recharacterize its scope and would risk creating confusion regarding applicable standards. At a minimum, this is an issue that merits more extensive consideration before possible inclusion. The Administration strongly objects to the provisions that limit the use of authorized funds to transfer detainees and otherwise restrict detainee transfers and to the provisions that would legislate Executive branch processes for periodic review of detainee status and regarding prosecution of detainees. Although the Administration opposes the release of detainees within the United States, Section 1039 is a dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests. . . .  The prosecution of terrorists in Federal court is an essential element of our counterterrorism efforts - a powerful tool that must remain an available option. . . . If the final bill presented to the President includes these provisions that challenge critical Executive branch authority, the President's senior advisors would recommend a veto.

Kudos to the Administration for finally taking a public stand on these issues--not to mention the right one, in my book. For more, see Bobby Chesney's insightful take over at Lawfare.

Posted by Steve Vladeck on May 24, 2011 at 05:23 PM in Constitutional thoughts, Steve Vladeck | Permalink


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