The NDAA: The Good, the Bad, and the Laws of War
Marty Lederman and Steve Vladeck:
Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law. One of the major disputes concerns whether and how the NDAA might alter the status quo.
In this post, we’ll try to synthesize the competing views offered by David Cole and Raha Wala, who remain quite critical of the provisions because of the changes they possibly presage, with those of Bobby Chesney and Ben Wittes, who argue that the NDAA doesn’t do nearly as much as its critics claim to affect the Executive’s current authorities and practices.
As we explain, there’s considerable merit to both sets of arguments. Perhaps the most important impact of the NDAA, however, may be with respect to a question that has received comparatively little attention–namely, the effect of the laws of war on the Executive’s military detention authority. In a companion post, we take a closer look at that important question.