The NDAA and Detention in Afghanistan: Congress Takes a Step Toward Greater Involvement

Another noteworthy development in the conference version of the NDAA is section 1025.  Think of this as a new direction in the congressionalization of detention operations in Afghanistan. What do I mean by congressionalization?  I admit I just made that term up.  So let me explain.  We're all familiar with the idea of judicialization of detention--i.e., the gradual assertion of some degree of control (in the form of both substantive rules and procedural mechanisms) by the judiciary over detention.   We've seen this occur as to detention at GTMO, and we've seen a parallel initiative fizzle as to Afghanistan. Well, by Congressionalization I mean something similar: a gradual assertion of some degree of control over detention by Congress as to various locations.  There have of course been some detention-related statutes already.  Setting aside the AUMF itself, we also have the Detainee Treatment Act of 2005, the Military Commissions Act of 2006, and the NDAA FY '12.  So what is novel about section 1025 of the pending NDAA FY'13?  Simply that it contains an Afghanistan specific constraint on executive discretion vis-a-vis detention. Specifically, under Section 1025 SecDef must give written notice to certain congressional committees 10 days in advance of transferring any non-US, non-Afghan person held at the detention facility in Parwan (DFIP) to the control of Afghanistan or any other country.  In addition, SecDef must ensure that certain assessments have occurred first, including (i) assessment of the security threat the person poses and the security situation in the country to which the person will be transferred; (ii) if the person is to be transferred to some place other than Afghanistan with an eye toward prosecution, an assessment of that country's track record for prosecutions in such cases as well as the strength of the case that can be made in this particular instance (including, specifically, the prospects for significant evidentiary admissibility issues); (iii) if the person is to be transferred to some place other than Afghanistan for rehab, an assessment of that country's track record on that score; and (iv) if the person is to be transferred to Afghan authorities, an assessment of its prospects for prosecution or detention in similar cases. I think of this as manifesting lessons learned from the Daqduq mess in Iraq, and I doubt that any of the assessments call for the executive branch to do anything it would not already be doing.  It's really the 10 days' notice provision that is striking.  Camel's nose under the tent, foreshadowing more biting constraints later?  We shall see. Note that the next section, section 1026, requires a report within 120 days describiing recidivism by persons released in the past from the DFIP (interestingly it is DFIP specific), as well as thoughts on the factors involved for those who did return to the fight.  Depending on how those numbers turn out, we might see Congress quickly become more interested in this area.  With the drawdown continuing, might we at some point see a sharp clash between executive discretion to shut down its detention operations (as part of a diplomatic agreement with Afghanistan) and Congressional efforts to perpetuate detention operations?  We shall see.