Tuesday, December 20, 2011
There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does. (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.) On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens. Glenn Greenwald does a nice job setting out the case at salon.com. On the other side, supporters say that it only codifies the government's authority under existing law. Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.
It turns out, both sides are right. In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF. Here are some of the highlights:
- Indefinite Detention. Section 1021(c)(1) says that "[t]he disposition of a person under the law of war as described in subsection (a) may include . . . [d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force." (Emphasis added.) This is the definition of indefinite detention. But it's also an authority that President Obama claimed from the early days of the administration. In fact, the definition of a "covered person" in Section 1021(b)(2) almost exactly tracks the administration's proposed definition of a "detainable person" under the AUMF in its March 13, 2009, filing in a Guantanamo habeas case in the D.C. District. (More below.) So while this authority in the NDAA is significant for representing clear congressional support for indefinite detention, and while it's deeply troubling, it also merely reflects the administration's long-standing position.
- Detainable Persons. Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces." This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks." Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners." (Section 1022 covers a subset of detainable persons in Section 1021. U.S. citizens and resident aliens are excepted from the requirement; more below.) In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners. But again, this is an authority that the administration claimed from its early days. Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases. And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban." So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.
- Detainability of U.S. Citizens. Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States. This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens. The Act is deliberately ambiguous on this point and seems to punt to the courts. But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.
- Guantanamo Transfers. Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States. This restriction means that the administration can't transfer detainees for civilian criminal trials. The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.
- Civilian Trials. In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.
These provisions in the NDAA represent significant and explicit congressional approval of government detention authority. But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches. In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.