Before September 11, 2011, the Commander-in-Chief, exercising powers specifically assigned to him in the United States Constitution, determined the disposition of enemy combatants captured during wartime. The Courts and Congress, for the most part, deferred to the Executive branch with respect to the treatment, detention and/or war crimes trials of prisoners of war.
Since 9/11, however, Congress and the Courts have taken an unprecedented role in defining the rights of detainees, and the restrictions on the Executive branch with respect to those detainees. Much of that focus has been on the detainees who were or are at Guantanamo Bay, Cuba.
Now, the House and Senate have proposed additional detainee-related legislation in the National Defense Authorization Act (NDAA) of 2012. Both have provisions affirming the September 18, 2001 Authorization for Use of Military Force (AUMF). Other provisions include the requirement of mandatory military custody for captured terrorists, restrictions on transfers from Guantanamo Bay, post-habeas periodic military review procedures and other such restrictions.
Is this legislation necessary, and if so, why? Does it unnecessarily restrict the Commander-in-Chief in the disposition of wartime captives? Do these provisions advance the strategic interests of the United States, and if so, how? Which provisions make policy sense, and which do not?
More About the Speakers
The Hon. Jeh Johnson
General Counsel, Department of Defense
Charles "Cully" Stimson
Manager, National Security Law Program and Senior Legal Fellow