National Defense Authorization Act for Fiscal Year 2012
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The National Defense Authorization Act (NDAA) for Fiscal Year 20121) is a controversial bill that has been passed 2) by both houses of Congress separately, and a final version approved by the Senate on 15 December 2011 3)4)5). Though the White House 6) and Senate sponsors 7) maintain that the Authorization for Use of Military Force Against Terrorists (AUMF) already grants presidential authority for indefinite detention, the Act legislatively codifies 8) the President's authority to indefinitely detain terrorism suspects, including American citizens, without trial as defined in Title X, Subtitle D, SEC 1031(a-e) of the bill 9). Because those who may be held indefinitely include U.S. citizens arrested on American soil, and because that detention may be by the military, the Act has received critical attention by the American Civil Liberties Union (ACLU) and media sources 10) 11) 12)13)14).
Indefinite Detention: Section 1031
Pursuant to the AUMF passed in the immediate aftermath of the September 11, 2001 attacks, the NDAA text affirms the President's authority to detain, via the Armed Forces, any person “who was part of or substantially supported al-Qaeda, the Taliban, or associated forces,” under the law of war, “without trial, until the end of hostilities.” The text also authorizes trial by Military tribunal, or “transfer to the custody or control of the person's country of origin,” or transfer to “any other foreign country, or any other foreign entity” 15). An amendment to the Act that would have explicitly forbidden the indefinite detention of American citizens, without trial, was rejected 16).
Addressing previous conflict with the Obama Administration regarding the wording of the Senate text, the Senate-House compromise text also affirms that nothing in the Act “is intended to limit or expand the authority of the President or the scope of the Authority for Use of Military Force.”
Requirement for Military Custody: Section 1032
All persons arrested and detained according to the provisions of section 1031, including those detained on U.S. soil, whether detained indefinitely or not, are required to be held by the United States Armed Forces. The requirement does not extend to U.S. citizens. Lawful resident aliens may or may not be required to be detained by the Armed Forces, “on the basis of conduct taking place within the United States.”
Views from the White House and Senate
The White House had previously threatened to veto the Senate version of the Act17), arguing that “the authorities granted by the Authorization for Use of Military Force Against Terrorists, including the detention authority, are essential to our ability to protect the American people… Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk.” The White House also argued that provisions requiring military detention of terrorism suspects on American soil were “inconsistent with the fundamental American principle that our military does not patrol our streets.” After a Senate-House compromise text explicitly ruled out any limitation of the President's authorities, and removed the requirement of military detention for terrorism suspects arrested in the United States, the White House issued a statement saying that it would not veto the bill 18).
During debate within the Senate and before the Act's passage, Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of U.S. Citizens 19); the amendment was rejected by a vote of 38-60 20). Udall subsequently voted for the Act in the joint session of congress that passed it, and though he remained “extremely troubled” by the detainee provisions, he promised to “push Congress to conduct the maximum amount of oversight possible”21).
A later amendment to preserve current law concerning U.S. citizens, lawful resident aliens, and others captured within the United States, sponsored by Senator Dianne Feinstein, was accepted 99 to 1 22). Senator Feinstein has argued that current law does not allow the indefinite detention of American citizens, while the Obama Administration, Senators Carl Levin, John McCain, Lindsey Graham, Mike Lee, Rand Paul and others like Congressional Representatives Dennis Kucinich, Ron Paul and Justin Amash have argued that it does 23).
See also
- Clinger-Cohen Act, part of the National Defense Authorization Act for Fiscal Year 1996
