A Guide to the National Defense Authorization Act
There was a time–only a few months ago–when National Defense Authorization Act (NDAA) detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety.
October 2015 | by David Delaney
The added attention to it is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the “death panel” objections to the health care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good. The reader who wants answers to simple questions faces a confusing array of conflicting information.
Here then, as a public service, is an NDAA FAQ–a simple attempt to lay out the key questions people are asking about the NDAA and answer them as simply and neutrally as we can. Many of the answers here we have discussed in greater depth elsewhere on the blog. We will link to those posts for readers who want greater depth. This is an overview, a Guide for the Perplexed.
What exactly does the NDAA do?
The NDAA is a spending authorization bill for the military for fiscal year 2012. At more than 1,000 pages, it does a great many things. Almost all of the controversy about it, however, deals with a single portion of the bill: “Subtitle D–Counterterrorism.” This subtitle contains a number of provisions related to military detention of terrorism suspects and the interaction between military detention and the operation of the criminal justice system. Broadly speaking, the controversy relates entirely to the following provisions:
Section 1021 codifies the Obama administration’s claimed authority to detain Al Qaeda and Taliban fighters and those from allied forces by “affirm[ing] that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.” The bill defines “covered person” as either “A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks” or “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.”
Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person 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 is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits.
Section 1023 requires minor adjustments to the President’s executive order setting up a review mechanism for detainees held at Guantanamo Bay.
Section 1024 mandates the creation of new–and quite generous–procedures for determining the status of detainees held in military custody. The provision requires that, regardless of where detainees are held, the procedures “shall provide . . . in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war”: a hearing before a military judge, who will make his status determination, and representation by military counsel in that proceeding if the detainee so chooses. These procedures can be applied as a matter of discretion where habeas is available–if, for example, you imagine a new detainee brought to Guantanamo or at any hypothetical facility in the United States. At Bagram and elsewhere, by contrast, they would seem to require a significant enhancement of process for detainees slated for long-term detention.
Sections 1026 and 1027 prevent the use of federal funds for building detention facilities in the United States or transferring Guantanamo detainees to domestic facilities or releasing them into the United States. It effectively continues a congressional policy of preventing more Article III criminal trials of Guantanamo detainees and preventing the construction of alternative facilities that would enable President Obama to fulfill his promise to shutter Guantanamo.
Section 1028 prevents overseas transfers of Guantanamo detainees in the absence of a rigorous certification by the Secretary of Defense that they will not pose a danger. Such a requirement under current law has effectively ground to a halt efforts to resettle certain Guantanamo detainees. This version’s certification requirement allows slightly more flexibility, though it’s not clear whether that difference will be meaningful in practice.