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The NDAA Passes the House, and Thoughts on Issues It Will Raise Later After Becoming Law

Robert Chesney
Wednesday, December 14, 2011, 10:40 PM
The House has passed the conference version of the NDAA.  It will go on to the Senate, probably coming up tomorrow (Thursday).  With the White House veto threat lifted, the NDAA likely will be law in very short order. After that?  Once the bill is law, the next item to watch for will be the promulgation by the administration, as required by the NDAA, of procedures specifying the process for determining whether captured terrorism suspects are subject to the NDAA's quasi-mandatory detention reg

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The House has passed the conference version of the NDAA.  It will go on to the Senate, probably coming up tomorrow (Thursday).  With the White House veto threat lifted, the NDAA likely will be law in very short order. After that?  Once the bill is law, the next item to watch for will be the promulgation by the administration, as required by the NDAA, of procedures specifying the process for determining whether captured terrorism suspects are subject to the NDAA's quasi-mandatory detention regime (by virtue of being (i) members of al Qaeda or an al Qeada-associated force (see AQAP), (ii) foreign, and (iii) linked to a specific attack or planned attack).  But don't expect anything terribly exciting to follow from that.  I find it hard to imagine that the resulting procedures will contain much that isn't already done, to some degree or in some fashion, in most if not all  cases. And then?  I'm guessing we'll see pressure from Congress with respect to whether the administration is taking steps in 2012 to ensure that there is a location ready to accept a detainee if the military detention option is chosen in a particular case.

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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