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Wartime Detention Provisions in Recent Defense Authorization Legislation [March 14, 2016]
"In recent years, Congress has included provisions in annual defense authorization bills addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and, more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) arguably constituted the most significant legislation informing wartime detention policy since the 2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40), which serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces. Much of the debate surrounding passage of the 2012 NDAA centered on what appeared to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the AUMF in the aftermath of the terrorist attacks of September 11, 2001. But the 2012 NDAA addressed other issues as well, including the continued detention of persons at Guantanamo. [...] This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision. It also addresses detainee provisions in subsequent defense authorization legislation."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2016-03-14
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Wartime Detention Provisions in Recent Defense Authorization Legislation [May 28, 2015]
"In recent years, Congress has included provisions in annual defense authorization bills addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and, more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) arguably constituted the most significant legislation informing wartime detention policy since the 2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40), which serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces. Much of the debate surrounding passage of the 2012 NDAA centered on what appeared to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the AUMF in the aftermath of the terrorist attacks of September 11, 2001. But the 2012 NDAA addressed other issues as well, including the continued detention of persons at Guantanamo. Both the 2013 NDAA (P.L. 112-239) and the 2014 NDAA (P.L. 113-66) also contain subtitles addressing U.S. detention policy, though neither act addresses detention matters as comprehensively as did the 2012 NDAA. The 2015 NDAA (P.L. 113-291) and the Consolidated and Further Continuing Appropriations Act, 2015 (2015 Cromnibus; P.L. 113-235), essentially maintain the status quo."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2015-05-28
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Wartime Detention Provisions in Recent Defense Authorization Legislation [January 23, 2015]
"In recent years, Congress has included provisions in annual defense authorization bills addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and, more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) arguably constituted the most significant legislation informing wartime detention policy since the 2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40), which serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces. Much of the debate surrounding passage of the 2012 NDAA centered on what appeared to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the AUMF in the aftermath of the terrorist attacks of September 11, 2001. But the 2012 NDAA addressed other issues as well, including the continued detention of persons at Guantanamo. Both the 2013 NDAA (P.L. 112-239) and the 2014 NDAA (P.L. 113-66) also contain subtitles addressing U.S. detention policy, though neither act addresses detention matters as comprehensively as did the 2012 NDAA. […] This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision. It also addresses detainee provisions in the 2013 NDAA and 2014 NDAA, as well as those considered during the House and Senate deliberations of the 2015 NDAA. An earlier version of this report was entitled The National Defense Authorization Act for FY2012 and Beyond: Detainee Matters."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2015-01-23
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Wartime Detention Provisions in Recent Defense Authorization Legislation [June 23, 2014]
"In recent years, Congress has included provisions in annual defense authorization bills addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and, more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) arguably constituted the most significant legislation informing wartime detention policy since the 2001 Authorization for the Use of Military Force (AUMF; P.L. 107-40), which serves as the primary legal authority for U.S. operations against Al Qaeda and associated forces. Much of the debate surrounding passage of the 2012 NDAA centered on what appeared to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the AUMF in the aftermath of the terrorist attacks of September 11, 2001. But the 2012 NDAA addressed other issues as well, including the continued detention of persons at Guantanamo. Both the 2013 NDAA (P.L. 112-239) and the 2014 NDAA (P.L. 113-66) also contain subtitles addressing U.S. detention policy, though neither act addresses detention matters as comprehensively as did the 2012 NDAA. The competing House and Senate defense authorization bills for FY2015 (H.R. 4435 and S. 2410) also contain provisions addressing the continued detention of Guantanamo detainees."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2014-06-23
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National Defense Authorization Act for FY2012 and Beyond: Detainee Matters [January 27, 2014]
"The 2012 NDAA [National Defense Authorization Act] authorizes the detention of certain categories of persons and requires the military detention of a subset of them (subject to waiver by the President); regulates status determinations for persons held pursuant to the AUMF; regulates periodic review proceedings concerning the continued detention of Guantanamo detainees; and continued funding restrictions that relate to Guantanamo detainee transfers to foreign countries. During floor debate, significant attention centered on the extent to which the bill and existing law permit the military detention of U.S. citizens believed to be enemy belligerents, especially if arrested within the United States. The enacted version of the bill included a provision to clarify that the bill's affirmation of detention authority under the AUMF is not intended to affect any existing authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States. […] The 2014 NDAA extends the blanket prohibition on transferring Guantanamo detainees to the United States, but allows the Executive greater flexibility in determining whether to transfer detainees to foreign custody. This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision. It also addresses detainee provisions in the 2013 NDAA and 2014 NDAA."
Library of Congress. Congressional Research Service
Garcia, Michael John; Elsea, Jennifer
2014-01-27
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National Defense Authorization Act for FY2012 and Beyond: Detainee Matters [August 27, 2013]
"The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. 112-81) contains a subtitle addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. Much of the debate surrounding passage of the act centered on what appears to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the Authorization for Use of Military Force (AUMF; P.L. 107-40) in the aftermath of the terrorist attacks of September 11, 2001. [...] This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision. It also addresses detainee provisions in the National Defense Authorization Act for FY2013, P.L. 112-239, as well as detainee provisions in the National Defense Authorization Act for FY2014 (H.R. 1960, S. 1197)."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2013-08-27
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National Defense Authorization Act for FY2012: Detainee Matters [December 11, 2012]
"The National Defense Authorization Act for FY2012 (2012 NDAA; P.L. [Public Law] 112-81) contains a subtitle addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. Much of the debate surrounding passage of the act centered on what appears to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the Authorization for Use of Military Force (AUMF; P.L. 107-40) in the aftermath of the terrorist attacks of September 11, 2001. The 2012 NDAA authorizes the detention of certain categories of persons and requires the military detention of a subset of them (subject to waiver by the President); regulates status determinations for persons held pursuant to the AUMF, regardless of location; regulates periodic review proceedings concerning the continued detention of Guantanamo detainees; and continues current funding restrictions that relate to Guantanamo detainee transfers to foreign countries. The act continues to bar military funds from being used to transfer detainees from Guantanamo into the United States for trial or other purposes, although it does not directly bar criminal trials for terrorism suspects (similar transfer restrictions are found in appropriations enactments in effect for FY2012)."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2012-12-11
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National Defense Authorization Act for FY2012: Detainee Matters [April 10, 2012]
"The National Defense Authorization Act for FY2012 (2012 NDAA, P.L. 112-81) contains a subtitle addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. Much of the debate surrounding passage of the act centered on what appears to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the Authorization for Use of Military Force (AUMF, P.L. 107-40) in the aftermath of the terrorist attacks of September 11, 2001. [...] While Congress deliberated over the competing House and Senate bills, the White House expressed strong criticism of both bills' detainee provisions, and threatened to veto any legislation 'that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation.' A few modifications were made during conference to assuage some of the Administration's concerns. Notably, the conferees added a statement to confirm that the provision mandating the military detention of certain categories of persons does not affect existing authorities of domestic law enforcement agencies, even with respect to persons held in military custody. President Obama ultimately lifted the veto threat and signed the 2012 NDAA into law, though he issued a statement criticizing many of the bill's detainee provisions. [...] Among other things, he declared that the mandatory military detention provision would be implemented in a manner that would preserve a maximum degree of flexibility, and that the Administration would not 'adhere to a rigid across-the-board requirement for military detention.' In February 2012, President Obama issued a directive to implement this policy, including by exercising waiver authority to prevent the mandatory military detention provision's application in a broad range of circumstances. This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA, provides a section-by-section analysis, and discusses executive interpretation and implementation of the act's mandatory military detention provision."
Library of Congress. Congressional Research Service
Garcia, Michael John; Elsea, Jennifer
2012-04-10
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National Defense Authorization Act for FY2012: Detainee Matters [January 11, 2012]
"The National Defense Authorization Act for FY2012 (2012 NDAA, P.L. 112-81) contains a subtitle addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. Much of the debate surrounding passage of the act centered on what appears to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the Authorization for Use of Military Force (AUMF, P.L. 107-40) in the aftermath of the terrorist attacks of September 11, 2001. [...] While Congress deliberated over the competing House and Senate bills, the White House expressed strong criticism of both bills' detainee provisions, and threatened to veto any legislation 'that challenges or constrains the President's critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation.' A few modifications were made during conference to assuage some of the Administration's concerns. Notably, the conferees added a statement to confirm that the provision mandating the military detention of certain categories of persons does not affect existing authorities of domestic law enforcement agencies, even with respect to persons held in military custody. President Obama ultimately lifted the veto threat and signed the 2012 NDAA into law, though he issued a statement criticizing many of the bill's detainee provisions. He declared that his Administration would implement the mandatory military detention provision so as to preserve a maximum degree of flexibility, and that it would not 'adhere to a rigid across-the-board requirement for military detention.' He also criticized the restrictions placed on Guantanamo detainee transfers, arguing that some applications might violate constitutional separation of powers principles."
Library of Congress. Congressional Research Service
Elsea, Jennifer; Garcia, Michael John
2012-01-11
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