Senator Mark Udall of Colorado is pushing an amendment to the NDAA to strip the bill of its detainee-affairs provisions and require further study of the relevant issues from both the executive branch and relevant congressional committees. Here is the amendment, and here is Sen. Udall’s statement about it.
As Lawfare readers know, my feelings about both the House and Senate versions of these provisions are mixed. Congress’s sudden interest in legislating the parameters of U.S. detention authority strikes me as healthy; indeed, I have been calling for just such a thing for years. I believe in legislation that would authorize the detention we’re engaged in–or even, as the House bill aims to do, the larger conflict we’re engaged in–and codify something like the administration’s Guantanamo review process in law. On the other hand, the transfer restrictions and the mandatory detention provisions and the prohibition against civilian trials in the House bill, and the other ways in which these bills needlessly micromanage complex areas of executive discretion are very very bad. The result is that a proposal like Udall’s puts me in a difficult position: How much do I value this particular legislative baby when soaked in this particular bathwater? And if I’m not allowed to drain the water, do I chuck both or keep both?