Delegation of Waiver Authority Under Section 1022(a)(4) of the National Defense Authorization Act for Fiscal Year 2012

This memorandum delegates to the Attorney General the President's authority under Section 1022(a)(4) of the FY2012 NDAA to waive certain requirements of the Act, specifically the military custody requirement for detainees. The Attorney General must exercise this authority in consultation with senior national security officials including the Secretaries of State, Defense, and Homeland Security, the DNI, CIA Director, FBI Director, and Chairman of the Joint Chiefs of Staff.

Federal Register Open PDF 77 FR 12435

Impact dates

Feb 28, 2012
Authority effective upon signing

Key directives

Delegate to Attorney General the authority under section 1022(a)(4) of FY2012 NDAA to waive certain requirements of the Act
Attorney General shall exercise this authority in consultation with Secretaries of State, Defense, Homeland Security, DNI, Chairman of the Joint Chiefs of Staff, CIA Director, FBI Director, and any other official the President may designate
Publish this memorandum in the Federal Register

Who is ordered

Timeline

Immediate

Delegation of waiver authority to Attorney General takes effect

Near term (90d)

Attorney General may begin exercising waiver authority in consultation with designated officials

Long term

Potential case-by-case waivers of military custody requirements for covered detainees

Risks & tensions

Interagency consultation requirement may slow waiver decisions during time-sensitive detention scenarios
Centralizes sensitive national security detention policy in DOJ rather than White House
Section 1022(a)(4) waiver authority was politically contentious; delegation distances President from individual waiver decisions
Vague 'any other official I may designate' leaves room for unilateral expansion of consultation circle