On Wednesday, December 14, 2011, the National Defense Authorization Act (NDAA) was signed into law by President Obama after passing both houses of Congress. The Defense Authorization Act is the name of a defense spending bill that has been enacted for each of the past 48 years to specify the budget and expenditures of the United States Department of Defense. The Obama Administration initially came out against the National Defense Authorization Act with a veto threat, out of concern regarding provisions included in early versions of the bill that included the following:
The detention provisions in the Senate version of the defense spending bill authorize the indefinite military detention of American citizens, and requires that any non-citizen terrorism suspect be held in military custody. It also forces the Secretary of Defense to personally approve transfers of detainees out of Gitmo*. When the bill was introduced, it created a rare moment of consensus between former Bush administration officials and civil liberties advocates who warned against constraining the president’s “flexibility” in counterterrorism operations.
After changes were made to the legislation regarding the indefinite detention language, the White House backed off its veto threat. The nature of the changes to the bill have become a point of great contention, which is entirely justified. Adam Serwer of Mother Jones has been doing tremendous work in terms of researching the language of the bill and determining what it actually says:
So what exactly does the bill do? It says that the president has to hold a foreign Al Qaeda suspect captured on US soil in military detention—except it leaves enough procedural loopholes that someone like convicted underwear bomber and Nigerian citizen Umar Abdulmutallab could actually go from capture to trial without ever being held by the military. It does not, contrary to what many media outlets have reported, authorize the president to indefinitely detain without trial an American citizen suspected of terrorism who is captured in the US. A last minute compromise amendment adopted in the Senate, whose language was retained in the final bill, leaves it up to the courts to decide if the president has that power, should a future president try to exercise it. But if a future president does try to assert the authority to detain an American citizen without charge or trial, it won’t be based on the authority in this bill.
So it’s simply not true, as the Guardian wrote yesterday, that the the bill “allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay.” When the New York Times editorial page writes that the bill would “strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists and hand it off to the military,” or that the “legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial,” they’re simply wrong.
In spite of these efforts, there still exists a great discrepancy in terms of the public’s understanding of the effects of the National Defense Authorization Act. A dear friend of mine and soon to be contributor to this site, Sam Sero, has done a yeoman’s job of working to better understand exactly what is contained in the National Defense Authorization Act. Thanks to his efforts, we now have responses on the record from two United States Senators, Sen. Barbara Boxer (D-California) and Sen. Bob Casey (D-Pennsylvania), explaining the contents of the bill. The responses from both senators are published in their entirety below, in an effort to further the dialogue regarding the National Defense Authorization Act.
A few important things to note related to the National Defense Authorization Act is that the bill apparently contains a pay raise for the troops requested by President Obama, important improvements to military health care benefits, and that the Senate is currently working on a piece of legislation entitled the Due Process Guarantee Act of 2011, which would “clarify that an authorization to use military force, a declaration of war or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States.”
First, the response from Sen. Barbara Boxer:
Dear Mr. Sero:
Thank you for writing to me about provisions in the National Defense Authorization Act (NDAA) concerning the military detention of enemy combatants. I appreciate hearing from you on this important issue.
I was deeply disappointed that the final version of the NDAA did not include important language authored by Senators Mark Udall (D-CO) and Dianne Feinstein (D-CA) regarding detainees that would have protected civil liberties while helping to keep us safe. During floor consideration of the NDAA, I voted for an amendment offered by Senator Udall that would have replaced the detainee provisions in the bill with a requirement for the Administration to report to Congress on detention authorities. Unfortunately, this amendment failed by a vote of 38-60.
I also voted for an amendment offered by Senator Feinstein that would have clarified that mandatory military detention would apply only to terrorist suspects captured outside the United States. This amendment also failed by a vote of 45-55.
I have now agreed to be a co-sponsor of S.2003, the Due Process Guarantee Act. This important bipartisan legislation would protect American citizens arrested within the United States from being held indefinitely by the U.S. military.
I strongly oppose any expansion of military detention authority that erodes our civil liberties. However, I voted for the National Defense Authorization Act because it includes a number of provisions for our troops and their families, including a pay raise requested by President Obama and important health care benefits.
Again, thank you for writing. Please feel free to contact me again about this or other issues of concern to you.
United States Senator
And the response from Sen. Bob Casey:
Dear Mr. Sero:
Thank you for taking the time to contact me about the detention provisions in the National Defense Authorization Act for Fiscal Year 2012. I appreciate hearing from you about this issue.
The National Defense Authorization Act (NDAA) authorizes policy and annual expenditures for the Department of Defense. The House of Representatives and the Senate recently passed the final version of the 2012 NDAA with broad bipartisan support. It is currently awaiting the President’s signature before it becomes law.
The Department of Defense is responsible for overseeing the United States Armed Forces and ensuring that our Nation is able to effectively respond to threats. It is critical that Congress provides the Department of Defense with sufficient funding to protect American lives, defend our Nation and support our servicemembers and their families. While our overseas military engagements continue, it is particularly important to provide the resources our servicemembers need to successfully conduct operations and ensure their own safety.
As your United States Senator, I am committed to ensuring the safety and security of all Americans. Since 2001, United States counterterrorism efforts have helped to ensure our national security. Our brave servicemembers and intelligence personnel work tirelessly to protect our nation against the threat of terrorism. However, it is essential that the executive branch operate with transparency and ensure that our counterterrorism efforts do not infringe on the civil liberties of American citizens. We must not sacrifice our fundamental values and ideals in the face of this critical threat.
The custody and detention provisions in the NDAA are the result of thorough consideration and bipartisan agreement. These provisions, including Sections 1021 and 1022, will allow the United States to deal effectively with the threat posed by al Qaeda, a terrorist group that has inflicted devastating harm on our Nation and continues to seek to attack our citizens, our allies, and our interests both here at home and around the world.
Section 1021 of the NDAA does not expand the executive branch’s authority to detain suspected terrorists. This section states explicitly that it is not intended to limit or expand the authority that Congress granted the President in the 2001 Authorization for Use of Military Force (AUMF). The definition of a “covered person” in this section is “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.” This is the position that has been adopted by the Obama Administration and upheld in U.S. courts since 2001. In addition, it requires the executive branch to brief Congress regularly on the individuals and groups to whom this authority is being applied.
It is important to note that Section 1021 does not create any “new” or “unprecedented” presidential power, nor does it create any “permanent” detention power. The legislation explicitly states that Section 1021 shall not “affect existing law or authorities 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.”
Section 1022 of the NDAA requires that persons who are members of al Qaeda and have participated in planning or carrying out an attack against the United States or its allies be held in military custody. However, the executive branch can exercise a waiver of this requirement if the President certifies to Congress that holding a particular suspect in civilian custody will better serve U.S. national security interests. In addition, this provision applies only to non-US citizens and non-lawful resident aliens who are al Qaeda operatives and who plan or carry out attacks against the United States. It explicitly does not apply to American citizens and those who reside here lawfully.
Senator Dianne Feinstein of California proposed an amendment which would have limited the requirement of military custody in Section 1022 to suspected terrorists captured abroad. This proposal was rejected in the Senate by a vote of 55 to 45. I voted against this amendment because the waiver provision provides flexibility to the executive branch to determine whether a suspected al Qaeda operative captured on U.S. soil should be transferred to civilian custody.
Senator Mark Udall of Colorado offered an amendment to remove the detention provisions in Section 1021 from the bill altogether. This amendment would have essentially allowed the executive branch to continue to engage in existing detention practices without codification in law. By codifying the detention practices already in use, Congress is exercising its critical responsibility to oversee and create a legal framework for executive branch action. For this reason, I joined a majority of Senators in voting against this amendment.
Senator Feinstein also offered an amendment to explicitly prohibit the indefinite detention of American citizens. I voted in favor of this amendment out of concern that authorizing the government to indefinitely detain U.S. citizens was at odds with fundamental American values. Unfortunately, this amendment was rejected by a vote of 55 to 45. Finally, Senator Feinstein proposed an amendment to clarify that nothing in the bill “shall be construed to affect existing law or authorities, 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.” I also voted for this measure, which passed the Senate by a vote of 99 to 1 and was included in the final version of the bill.
On December 15, 2011, Senator Feinstein introduced S. 2003, the Due Process Guarantee Act of 2011. This legislation would clarify that an authorization to use military force, a declaration of war or any similar authority shall not authorize the detention without charge or trial of a citizen or lawful permanent resident of the United States. S. 2003 would also require Congress to make a “clear statement” about the limitations on authority to detain U.S. citizens and lawful permanent residents. This legislation has been referred to the Committee on the Judiciary, of which I am not a member. Please be assured that I will examine this legislation closely.
Nothing in the NDAA authorizes the U.S. military to patrol our streets, detain ordinary Americans in their homes or conduct any law enforcement functions inside the United States. Section 1022 says only that a specific group of persons, narrowly defined as those who are “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” should be subject to military custody, unless the executive branch determines that civilian custody is more appropriate in a particular case. The NDAA does not address when or where a person may be captured, and does not authorize the military to exercise unprecedented powers on U.S. soil.
In addition, the NDAA will not disrupt ongoing interrogations, intelligence gathering functions and surveillance activities, and it does not require military commissions in terrorist prosecutions. The administration raised concerns that certain provisions would limit its ability to collect vital information and limit its prosecutorial options. In response, the Senate Armed Services Committee clarified that no such limitations would be placed on the President’s authority.
The NDAA absolutely does not authorize torture of detainees, irrespective of citizenship. Senator Kelly Ayotte of New Hampshire proposed S. Amdt. 1068 to the NDAA to authorize certain enhanced interrogation techniques. However, the U.S. Constitution prohibits “cruel and unusual punishments,” and we must not tolerate the use of torture under any circumstances. I believe strongly that the United States has a moral obligation to uphold its commitments under the Geneva Convention regarding the treatment of prisoners. We must, therefore, hold all executive branch officials accountable for alleged violations of these commitments. I am pleased that S. Amdt. 1068 was not included the final version of the NDAA that passed the Senate. Please be assured that I support efforts to prohibit the use of “enhanced interrogation” practices, and that no such practices have been endorsed in this bill.
The NDAA also does not change the fundamental, constitutional right of habeas corpus review. The writ of habeas corpus is a legal doctrine that allows individuals to challenge their detention in a court of law. The U.S. Constitution explicitly provides this right to American citizens, and the U.S. Supreme Court has repeatedly upheld its applicability, even with respect to suspected terrorists. Any American citizen or lawful permanent resident held in U.S. custody will have the right to habeas corpus review. Similarly, the courts have established that persons detained under the Authorization of the Use of Military Force, including those held at Guantanamo Bay, have the right to such review. Nothing in the NDAA undermines this critical right.
Again, thank you for sharing your thoughts with me. Please do not hesitate to contact me in the future about this or any other matter of importance to you.
If you have access to the Internet, I encourage you to visit my web site, http://casey.senate.gov. I invite you to use this online office as a comprehensive resource to stay up-to-date on my work in Washington, request assistance from my office, or share with me your thoughts on the issues that matter most to you and to Pennsylvania.
United States Senator