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

This is the second in a series of columns on the NDAA (National Defense Authorization Act). The first column by Joanne Mariner on this topic was posted on December 21, 2011, here on Justia’s Verdict. –Ed.

More than two weeks after the bill’s passage, President Barack Obama signed the National Defense Authorization Act (NDAA) into law last Saturday in the late afternoon.  His decision to sign the bill at a moment unconducive to press attention was probably intentional; the NDAA has been the object of increasing critical scrutiny, with the president himself publicly acknowledging some of the bill’s flaws.

In a statement that accompanied his signature, President Obama said that even though the bill had been revised in congressional negotiations, he still had “serious reservations” about NDAA provisions that regulate the detention, interrogation and prosecution of suspected terrorists.  He explained that he had signed the more than 500-page defense bill because of its military funding provisions, despite these continuing concerns.

Obama’s signature brings an official end to a legislative process that began last March, when Representative Buck McKeon and Senator John McCain introduced bills designed to shift counterterrorism responsibilities from law enforcement to the military.  (My previous column explains the legislative history of the NDAA’s detention provisions in greater detail.) These bills were grafted onto the NDAA, and revised, under threat of a presidential veto, in House and Senate committees.

But while the president’s signing statement includes several references that suggest that the new law, if interpreted broadly, might threaten core American values, Obama himself arguably helped open the door for this legislation earlier this year with his executive order on the indefinite detention of prisoners at Guantanamo.

When future historians inquire into how the practice of indefinite military detention without trial became formally entrenched in a country with such strong constitutional safeguards and stringent criminal justice guarantees, they will find that it did not happen all at once, but rather via a series of incremental steps.  President Obama is now responsible for three of them.

The first was to justify indefinite detention in litigation opposing the release of detainees held at Guantanamo; the second was to issue an executive order on indefinite detention, and the third was to sign the NDAA.

The Road to the NDAA

It was President George W. Bush, together with Vice-President Dick Cheney, Defense Secretary Donald Rumsfeld, and a host of other senior Bush administration officials who took the most radical and important steps toward establishing indefinite detention without trial as a mainstay of the US approach to fighting terrorism.  But the Bush administration, preferring to act unilaterally, did not even bother to seek congressional sanction for its indefinite detention schemes.  It established Guantanamo on its own, held American citizens without charge in the absence of a legislative mandate to do so, and fought judicial oversight tooth and nail.

Obama entered office as a reformer, promising to close Guantanamo within a year.  Yet, disappointingly, the first signs of flagging commitment to reform came early.  In a filing submitted to a federal district court on March 13, 2009 in litigation over indefinite detention at Guantanamo, the Obama administration adopted the Bush administration’s position that persons allegedly involved in terrorism were participating in a war and could be held indefinitely without trial.  While the court papers emphasized that the administration’s newly-articulated views were subject to change, that change never occurred.

Indeed, the indefinite detention rules codified in the NDAA owe a clear debt to the administration’s March 13 filing.  Section 1021 of the NDAA, the law’s key provision on indefinite detention, uses language that closely mirrors and is substantively identical to the language of the March 13 brief.  It establishes that not only may members of Al Qaeda, the Taliban and “associated forces” be subject to indefinite detention, but so may persons who “substantially supported” those forces.

Over the past three years, the Obama administration has aggressively litigated its power to continue to hold detainees indefinitely at Guantanamo, even in cases of detainees like Mohamedou Ould Slahi—people who are terrorists, if the administration’s allegations are correct, but who have no connection to traditional armed conflict.  Still, even given the administration’s court filings, its decision in March 2011 to issue an executive order on indefinite detention was disappointing. Although the March 7 order only applied to prisoners already in detention at Guantanamo, not future suspects, and it expressly disavowed any intention of creating new legal authority for detention, it still formally established indefinite detention without trial as a long-term Obama administration policy.  It made prospects for detention reform seem ever more remote.

The motivations behind the March 7 order may have been praiseworthy. Facing pressure from congressional Republicans like John McCain to rely more extensively on indefinite military detention, the administration no doubt hoped in March that it could preempt legislative action by taking the initiative.

That strategy obviously failed.

And Representative Peter King, a conservative Republican who heads the House Committee on Homeland Security, understood the situation all too well when he gloated: “The bottom line is that [the executive order] affirms the Bush Administration policy that our government has the right to detain dangerous terrorists until the cessation of hostilities.” By formally embracing the indefinite detention framework, the Obama administration ceded the moral high ground necessary to effectively oppose further expansion of the policy.

Days after the executive order was issued, several Republicans announced that they would seek to introduce military detention legislation; it was these detention provisions that ended up in the NDAA.

The Indefinite Detention of American Citizens

The most controversial element of the NDAA is its supposed application to US citizens.  The New York Times warned in an editorial that the law could “give future presidents the authority to throw American citizens into prison for life without charges or a trial.”

Congressional supporters of the NDAA have argued that these claims are wildly overblown. Representative Mac Thornberry, for example, a member of the House Armed Services Committee from Texas, complained bluntly of “misinformation” about the bill.

In a blog post dated December 16, Thornberry asserted that not only does the legislation not allow the indefinite detention of US citizens, it improves on existing law by extending citizens explicit new protections. To support this claim, he cites section 1022(b)(1) of the NDAA, which provides: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”

“If words have meaning,” he insists, “that is about as clear as English can get.”

Words have meaning, but they can also be taken out of context.  The provision that Thornberry cites only exempts American citizens from being covered by section 1022 of the new law, which creates a new presumption of military detention for certain terrorist suspects.  Notably, section 1022(b)(1) does not exempt American citizens from the more important provisions in section 1021, which allow the military detention of broad categories of terrorist suspects.  It does not, therefore, improve on the status quo by extending any new protections to Americans.

Moreover, the specific exemption for American citizens in section 1022 could be understood as suggesting, by negative implication, that American citizens are covered by section 1021.  Potentially reinforcing this view is the fact that an effort to amend section 1021 to exempt citizens failed in the Senate.  If, in the future, judges decide to refer to the statute’s legislative history to help ascertain its scope, the lack of such an exemption may be determinative.

Another provision that Thornberry cites is equally unhelpful to his claim.  Subsection 1021(e) says that section 1021 does not change existing law “relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

On its face, it should be obvious that this provision does not specifically protect citizens; in fact, the reference to citizens is entirely superfluous. (The provision might just as well have specified “redheads, AARP members, and any other persons who are captured or arrested in the United States.” If it had not been written with future political maneuvering in mind, it would simply have referred to “the detention of persons who are captured or arrested in the United States.”)

One way in which the language of the provision is meaningful, however, is in its specific reference to captures and arrests that occur “in the United States.” To whatever extent the provision serves to curb the law’s scope, it clearly does not stop the law from strengthening and expanding the government’s legal authority to detain indefinitely persons arrested outside of the United States—whether US citizens or non-citizens, and whether the arrests take place in Pakistan or in Paris. In short, the relevant line is not one of citizenship, but of location.

Moreover, the provision’s reference to “existing law” begs far too many questions.  It is precisely the scope of existing law that is subject to vociferous debate and continuing litigation.  Under the Bush administration, the law was interpreted to allow the indefinite detention of both citizens and non-citizens arrested anywhere in the world, including the United States.

While the Supreme Court upheld the military detention of an American citizen captured as part of the armed conflict in Afghanistan, it has  yet to hear an indefinite detention case involving anyone—citizen or non-citizen—picked up in the United States.  Nor has it handled a case involving a terrorist suspect, as opposed to a participant in a traditional armed conflict.  With these fundamental questions still in play, it is disingenuous to say that the law could not be used to detain Americans deemed to be involved in terrorism.

A Fair Reading of the NDAA

A fair reading of the new law would acknowledge a couple of basic points.

First, the NDAA at minimum reinforces and strengthens governmental authority to hold indefinitely terrorist suspects arrested outside of the United States, including American citizens arrested outside of the United States.  By giving the practice an explicit statutory grounding—and one that is broadly worded—the NDAA makes the practice of indefinite military detention less vulnerable to legal challenge.  With two branches of government now firmly behind the practice of indefinite detention, the Supreme Court will be hesitant to strike down as unconstitutional even the most aggressive assertions of the detention power.

Second, the law puts great pressure on the president to rely more extensively on indefinite military detention and military commission trials. While it does not actually make military detention mandatory for any category of suspect, given the existence of waivers and other loopholes, it provides Congress with ample grounds for post-hoc criticism of the president’s every detention decision.

In a politically-charged situation like the Abdulmutallab case (the case of the so-called “underwear bomber”), the NDAA could make it much more difficult for the president to keep the suspect in the civilian justice system.  Particularly if a terrorist attack were successful or close to successful, members of Congress would line up to appear on Fox News to assert that the NDAA’s provisions had been improperly applied.

This would likely be true whether or not the suspect was a citizen.

In his signing statement last Saturday, President Obama sought to assuage fears as follows:  “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”  The public should bear in mind, however, that President Obama’s promise does not bind any future president.

A Question of Values

In his signing statement, President Obama said that his administration would interpret the NDAA’s more problematic provisions “in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.” The statement also promised that the Obama administration would “seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.”

While the president’s emphasis on flexibility is consistent with his administration’s practice of relying on both criminal justice and military detention options in fighting terrorism, he is mistaken if he thinks that this approach conforms to US constitutional values.

Rejecting indefinite detention without trial is a matter of fundamental constitutional principle. Not only should President Obama seek the repeal of the NDAA’s detention provisions, he should renew his stated goal of closing Guantanamo.

Joanne MarinerJoanne Mariner, a Justia columnist, is the director of Hunter College's Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law. She is the author of the Human Rights Watch report, No Escape: Male Rape in U.S. Prisons. She is a co-author of the new Human Rights Watch report, “In the Name of Security: Counterterrorism Laws Worldwide since September 11.”
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82 Responses to The NDAA Explained: Part Two in a Two-Part Series of Columns on the National Defense Authorization Act

  1. brian says:

    we may be giving up our constitutional form of government,giving up habaes, and surrendering our liberty,
    but at least we are getting a smidgen of temporary security in return …
    aren’t we ?

  2. Anonymous says:

    Thanks for writing these posts. They clarify a number of issues quite well.

  3. The NDAA only goes to further stifle our Constitutional
    Rights without the approval of the Americans, just as the Patriot Act was
    adopted WITHOUT public approval or vote just weeks after the events of
    9/11.  A mere 3 criminal charges of
    terrorism a year are attributed to this act, which is mainly used for no-knock
    raids leading to drug-related arrests without proper cause for search and
    seizure.  The laws are simply a means to
    spy on our own citizens and to detain and torture dissidents without trial or a
    right to council.  You can read much more
    about living in this Orwellian society of fear and see my visual response to
    these measures on my artist’s blog at http://dregstudiosart.blogspot.com/2011/09/living-in-society-of-fear-ten-years.html

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  26. 911acalltoaction says:

    Protection from the law is gone.

  27. 911acalltoaction says:

    Protection OF the law is gone.

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  36. Rsteedman says:

    Doesn’t the President’s signing statement that his administration “will not authorize the indefinite military detention without trial of American citizens” leave open the possibility of such detention without trial by another agency of the government, e.g. CIA?

    • Tangy Nihilist says:

      CIA is part of the Executive branch…under the control of his administration.  You might want a refresher course on the U.S. Government

  37. SimonP. says:

    Thank you for this. It illustrates a very critical and -if I may say so- sneaky move on behalf of this administration…it’s certainly going to be a check in the Con column when I’m weighing out my choice come November 2012. 

    • Fairchildd says:

      Do you think this will help any?  You know Ron Paul is not going to win the Republican nomination, and not one of the others believes in the rights of the accused.  And if by some miracle Paul is nominated, it won’t matter because he can’t win the national election

  38. Pingback: Speak out: the rising threat of indefinite detention / Waging Nonviolence - People-Powered News and Analysis

  39. Ben Kerkvliet says:

    This may be the last staw for me. I’m going to look into this issue more, but based on what I’m learning from Verdict and other informed sources, I inclined to say that, by signing this NDAA, Pres. Obama has lost my vote and my financial contributions to his re-election campaign.

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  42. Pingback: War on Terror corrupts US justice « notes from the ubiquitous surveillance society

  43. Pingback: Speak Out: The Rising Threat of Indefinite Detention « 2012 The Awakening

  44. Pingback: The NDAA: Not as “Fixed” as They Claim | Republican Liberty Caucus

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  46. Pkskypilot says:

    The law must be constitutionally challenged..

  47. Guest says:

    Section 1021? Subtitle C—Naval Vessels and ShipyardsSec. 1021. Budgeting for construction of naval vessels.?http://www.gpo.gov/fdsys/pkg/BILLS-112hr1540rh/pdf/BILLS-112hr1540rh.pdf

  48. Dvg61016 says:

    Well our reform president strikes again. I am no longer disillusioned: this president along with the whole of our congress are taking us down a slippery slope. And on New Year’s Eve, when no one is paying attention nor reading the news.
    “Smidgen of temporary security,” we are suppose to have the right to speak and act in deference to what we disagree with, in a legal maneer. Well no more. Our they’ll come a knockin’
    Norway better get ready for a whole new immigration policy, cause here we come.

  49. BadAmerican says:

    Ron Paul ,     please spread the word.  Thank-you Joanne for you time and insight. We need to wake up the sheeple. molon labe

  50. Pingback: Discussion of the National Defense Authorization Act (NDAA)

  51. Kwokshsee says:

    I am surprised by the fact that the author seemed to be disturbed only by the fact that American citizens may be indefinitely detained without trial under NDAA.

    If one finds that indefinite detainment without trial is no big deal as long as it only applies to foreigners, she/he must eat the fruit of facing the same one day in future. Remember the Catholic Church in Nazi Germany!!!

  52. Bo says:

    Isn’t Congress going to pass another NDAA next year, in which these sections can be modified or suspended? Also, section 1021 states “American citizen, resident alien, or any other person captured or arrested in the US” not “and any other person captured or arrested in the US.” The use of “or” instead of “and” separates the American citizen and resident alien from the location qualifier assigned to the any other person. I don’t agree with this law, but I don’t think American citizens have anything to worry about. It’s the fact that others can be held that is troubling.

  53. Bo says:

    Isn’t Congress going to pass another NDAA next year, in which these sections can be modified or suspended? Also, section 1021 states “American citizen, resident alien, or any other person captured or arrested in the US” not “and any other person captured or arrested in the US.” The use of “or” instead of “and” separates the American citizen and resident alien from the location qualifier assigned to the any other person. I don’t agree with this law, but I don’t think American citizens have anything to worry about. It’s the fact that others can be held that is troubling.

  54. Bo says:

    Isn’t Congress going to pass another NDAA next year, in which these sections can be modified or suspended? Also, section 1021 states “American citizen, resident alien, or any other person captured or arrested in the US” not “and any other person captured or arrested in the US.” The use of “or” instead of “and” separates the American citizen and resident alien from the location qualifier assigned to the any other person. I don’t agree with this law, but I don’t think American citizens have anything to worry about. It’s the fact that others can be held that is troubling.

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  56.  My comments on this
    law are long as I see this law as an act of treason or at the very least an
    attack on all we have fought for years to preserve. You are correct when you
    bring up that all people be they citizen or not deserve a trial that
    notwithstanding it also means that both Presidents, Bush and Obama, lied to the
    American people when they said the 2001 attacks would not change America or her
    way of life. It has not only done so, but it has given victory in a larger
    sense to those who attacked as they attacked us in part because they did not
    like the freedoms that we, as Americans, enjoyed. Now, Congresses’ treasonous
    acts of passing this bill and the President’s treasonous act of signing it has
    in effect, placed all of our citizens in fear of being accused of crimes that
    if accused could lead to detention for life without a trial and cause real
    terrorists to be more violent since they now know that if they are caught they
    will never again have freedom. While I agree that all convicted terrorists
    should be in prison forever the key word is convicted. Not detained without a
    trial.

  57.  

    My comments on this
    law are long as I see this law as an act of treason or at the very least an
    attack on all we have fought for years to preserve. You are correct when you
    bring up that all people be they citizen or not deserve a trial that
    notwithstanding it also means that both Presidents, Bush and Obama, lied to the
    American people when they said the 2001 attacks would not change America or her
    way of life. It has not only done so, but it has given victory in a larger
    sense to those who attacked as they attacked us in part because they did not
    like the freedoms that we, as Americans, enjoyed. Now, Congresses’ treasonous
    acts of passing this bill and the President’s treasonous act of signing it has
    in effect, placed all of our citizens in fear of being accused of crimes that
    if accused could lead to detention for life without a trial and cause real
    terrorists to be more violent since they now know that if they are caught they
    will never again have freedom. While I agree that all convicted terrorists
    should be in prison forever the key word is convicted. Not detained without a
    trial.

  58. I would like to interview you on my podcast talk show which is a non paid  show at this time. Therefore, I can’t pay for interviews. However, this and other human rights matters need more attention and you, Joanne, have explained this NDAA matter very well to those who may not know law as well as you do. The shows I own are Humanity Matters on public access television in my home city and online and Humanity Matters Podcast online as well.
    Albert

    Note: There was a tech issue and that is why my last comment appears twice.

  59. Pingback: The NDAA and the Militarization of America » Counterpunch: Tells the Facts, Names the Names

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  65. Yuvid1 says:

    Read the entire article.

  66. Yuvid1 says:

    Read the entire article.

  67. Pingback: “I Am Not a Terrorist!”-graffitist, Boise, Idaho | Now Is The Time

  68. Dumo says:

    Your on the right legal point here. I have read said sections of the NDAA. This piece of facist, dictorial legislation certainly gives the president “or in this case” (dictator) the powers to detain any citizen for any amount of time. This “unconstitutional” piece of facist legislation directly violates Amendments 1, 3, 4, 5, 6, 7, and 9 of the U.S. Contitution’s Bill of Rights in one facist form or another. Read the said Amendments and sections 1021 and 1022 of the NDAA and decide for yourself! the piece of garbage legislation framed by the facist (oops! I mean Obama) administration is again “unconstitutional” on its face and should never (by any one of our three tier Gov) have been enacted as law. We the people of the United States of America should use our collective voices and call for this acts, or any other piece of legislation deemed unconstitutional to be immediately “ABOLISHED” “Repealing” an act, legislation, or law merely means that somewhere in the future, said act, legislation, or law has the possibility of being re-enacted! All three branches of the U.S. Gov are CIVIL SERVANTS OF CITIZENS OF THE UNITED STATES OF AMERICA! The constiution itself provides specific language to this effect. (look this one up for yourself) Learn the Constitution folks before it is irraticated and is no longer our governing body of law! Freedom or slavery! You decide!

    • PBrown says:

      not quite sure why you are blaming President Obama for this – he tried to change it, but the Republican Congress pushed this thru… this is a Republican agenda, not the President’s!

  69. Rowen says:

    One more reason not to move back to the USA , getting UK Passport ASAP

  70. unbiased says:

    Obama can state all he want’s, as he stated, “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.” If it isn’t written it doesn’t mean crap!! and again, he states, President Obama said that his administration would interpret the NDAA’s more problematic provisions “in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.” The statement also promised that the Obama administration would “seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.” Just because one says it doesn’t mean it’s true… if he swore to it in writing and was signed by witnesses and faced jail time, being impeached etc. then I’m thinking he may have been telling the truth, he didn’t and he hasn’t followed thru with any of his promises .. there fore he’s in my eyes a liar!!!

  71. Jon says:

    “If words have meaning, that is about as clear as English can get.” – Rep. Mac Thornberry(Texas), on language in Section 1021(language that is also mirrored in, at the least, Sections 1022, 1031, and 1032).

    Take a look specifically at that language: “The *requirement*(emphasis mine) to detain a person in military custody under this section does not extend to citizens of the United States.” What the bill clearly says – if words have meaning – is that this legislation does not mandate that U.S. citizens be held. However, it does not specifically prohibit the detention of said citizens. At best, this is a serious error in drafting.

  72. Jon says:

    Folly of someone using “a number of could, potentially and mights” aside, this bill is dangerous in its wording. You don’t see how American Citizens can be locked away indefinitely without trial from this law? Look at the wording (contained in many sections): “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.” As it says, it does not extend the *requirement* to detain, but it likewise does not specifically prohibit detention.

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  74. Euclid says:

    If NDAA becomes law, then any terrorist, tyrant or persons trying to destroy the Constitution must be detained in a place chosen by the people of these United States. In the case of the Kenyan Trojan Horse, the maximum penalty should be immediate execution.

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  76. Matt says:

    Levin, Bush, Obama are the new Terrorist. NDAA is foul.

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