Analysis and Commentary on Military Law
The NDAA Explained: Part Two in a Two-Part Series of Columns on the National Defense Authorization Act

In the second of a two-part series of columns on the highly controversial NDAA (National Defense Authorization Act), Justia columnist and Hunter College Human Rights Program Director Joanne Mariner continues to explain and comment upon on the bill, which is now the law. Mariner explains President Obama’s reasons for signing the bill, despite what he called “serious reservations” about its provisions that regulate the detention, interrogation and prosecution of suspected terrorists; and what his signing statement, accompanying the bill, said. Mariner notes that at this point, Obama is responsible for three key steps in America’s entrenchment of indefinite detention without trial: (1) justifying indefinite detention in litigation opposing the release of detainees held at Guantanamo; (2) issuing an executive order on indefinite detention; and (3) signing the NDAA. Mariner chronicles the road that took America to the passage of the NDAA, detailing the contributions of the Bush and Obama Administrations. In addition, she considers the most controversial aspect of the NDAA: its supposed allowance of the indefinite detention even of American citizens. Finally, Mariner notes that any fair reading of the NDAA ought to include a set of basic points, which she explains; and calls for a repeal of the NDAA’s detention provisions, as well as for the closure of Guantanamo.

The NDAA Explained: Part One in a Two-Part Series of Columns on the National Defense Authorization Act

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner explains and comments on the highly controversial National Defense Authorization Act (NDAA), which has passed the House and Senate and is now awaiting President Obama’s signature. As Mariner notes, the NDAA’s provisions on indefinite detention earlier caused President Obama to threaten to veto the bill, but now President Obama appears poised to sign the bill’s current version—based on his claim that it affords the president substantial discretion on how the law will be implemented. But, Mariner points out, numerous human rights groups, civil libertarians, and Members of Congress still find the bill extremely objectionable in this current version. In this two-part series of columns, Mariner provides background on the recent history that is relevant to the bill; describes what the often-mischaracterized provisions of the bill actually say, and whom they affect; and focuses, especially, on the sections that have caused human rights groups the greatest concern.

An Endless War on Terror

Justia columnist and Hunter College Human Rights Program Director Joanne Mariner comments on the aggressive new War on Terror bills currently pending in Congress. With Osama Bin Laden dead and all the living alleged 9/11 perpetrators in custody awaiting trial, Mariner notes that the bills’ timing seems odd. She also contrasts the long-lasting War on Terror with the events of the post-World-War-Two period in American history. If the bills that are pending pass, she explains, they will go significantly beyond prior War on Terror policies, which were already broad to begin with. Mariner describes the bills as dangerous and irresponsible, and points to the irony that Congress can make bipartisan compromises in the fraught area of counterterrorism, but not when it comes to sorely needed economic measures. If the bills pass, Mariner reports, they will essentially make Guantanamo permanent, embrace detention without trial—which had previously been seen as un-American—and make the military the presumptive detaining and prosecuting authority in certain categories of cases. Mariner points out that even the Bush Administration tried and convicted many terrorism suspects in federal court, rather than resorting to military justice. Finally, she expresses hope that President Obama will veto the bills, as he has threatened to do.

The “Obama Doctrine”: The Wisdom and Lawfulness of the President’s Take-No-Prisoners Approach

Justia columnist and Cornell law professor Michael Dorf comments on the law relating to President Obama’s military strategy, which has emphasized air power and surgical strikes, as opposed to the use of ground troops, in a number of contexts. From the raid that killed bin Laden, to the drone strike that killed Anwar al-Awlaki, to air support for Libyan rebels, Obama’s tactical choices have led Dorf and others to scrutinize what seems to be an “Obama Doctrine” regarding the waging of modern war. Dorf notes that Obama is willing in some cases to use unilateral force, though less willing to do so than the second President Bush (who himself may well have been an outlier among recent presidents in this respect). One example, Dorf notes, is Obama’s use of unmanned drones. Dorf covers both the benefits of the Obama Doctrine, such as decreasing American casualties and diminishing America’s role as occupier, and its costs, such as drones’ causing civilian casualties—an important harm in itself that also leads to hatred of America. Finally, Dorf notes that the Obama Doctrine raises a host of significant legal questions that have yet to be resolved.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Samuel Estreicher
Samuel Estreicher

Samuel Estreicher is the Dwight D. Opperman Professor, Director, Center for Labor and Employment... more

Leslie C. Griffin
Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Fels Institute of Government Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Austin Sarat
Austin Sarat

Austin Sarat is Associate Provost, Associate Dean of the Faculty and William Nelson Cromwell... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more