The NDAA – A Dangerous Precedent Even With the Signing Statement

Tuesday, January 3rd, 2012

(Editor’s Note – this is an updated version of our previous post on the NDAA, which we have revised to incorporate a discussion of President Obama’s statement accompanying his signing of that legislation)

As we noted recently, over the next few weeks Winning Progressive will be featuring a series of posts regarding the erosion of civil liberties in the US. Today’s post focuses on the National Defense Authorization Act of 2012 (“NDAA”) and its disturbing provisions regarding indefinite detention of individuals under the guise of the “war on terror.” The NDAA has been the subject of much debate in the progressive blogosphere, with some seeing it as simply affirming existing law and others seeing it as mandating military detention of US citizens suspected of ties to terrorism. Neither position is fully accurate, but our overall read is that the NDAA detention provisions set a dangerous precedent that should have been vetoed by President Obama. While President Obama’s signing statement, issued on December 31, 2011, confirms that the Obama Administration is not going to use the NDAA to indefinitely detain US citizens, that statement does nothing to limit the ability of future Administrations to use the detention authority provided in the NDAA. And that is what worries us.

Leaving aside for now the issue of Guantanamo, which Congress has stymied President Obama’s efforts to close, the NDAA includes two sections that address detention. Addressing the second section first, in Section 1022, the NDAA mandates military detention for individuals who are members of “Al-Qaeda or an associated force” and that “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” (NDAA Sec. 1022(a)(2)). US citizens, however, are expressly exempted from that requirement. (NDAA Section 1022(b)(1)). As such, contrary to what some critics have said, the NDAA does NOT mandate military detention of US citizens. In addition, Section 1022 allows the President to waive the required military detention upon certifying that “such a waiver is in the national security interests of the United States.” (NDAA Section 1022(a)(4)). As a supporter of civil liberties, Winning Progressive finds disturbing the prospect of indefinite military detention of any person arrested on US soil, as we firmly believe that a government should be required to prove that a person is guilty of a crime subject to the protections offered by the Constitution and Bill of Rights. However, the specific exemption for US citizens means that Section 1022 is not the absolute civil liberties nightmare that some have made it out to be.

The same cannot be said of Section 1021, in which Congress “affirms” that the powers granted to the President under the 2001 Authorization for Use of Military Force (“AUMF”) includes the power of the military to “detain covered persons.” (NDAA Section 1021(a)). In defining “covered persons” who can be detained, the NDAA identifies people involved in the Sept. 11, 2001 attacks using the same language as was used in the AUMF. (NDAA Section 1021(b)(1)). The NDAA, however, then proceeds to identify as a second category of persons:

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.

(NDAA Section 1021(b)(2)). This language is quite problematic as the terms “substantially supported,” “belligerent act” and “directly supported such hostilities in aid of” can be read broadly to cover individuals who have, at most, a very tangential link to “al-Qaeda, the Taliban, or associated forces.”

The broadness of the language in Section 1021(b)(2) is especially problematic given that the NDAA then proceeds to allow for military detention without trial. In particular, the NDAA identifies four possible dispositions of detained persons: (1) detention “without trial until the end of the hostilities authorized by the” AUMF, (2) trial by a military commission, (3) transfer for trial by a court, or (4) transfer to any other foreign country or entity. (NDAA Section 1021(c)). Detention without trial or transfer to another country means that the basis for that detention would never be tested, and even trial by a military commission would not provide anything close to the type of challenge to one’s detention is required by the Constitution and the Bill of Rights. In other words, these provisions combined would allow a President to detain virtually anyone without ever having the basis for that detention reviewed, without the government being required to prove that person’s guilt, and without the person who was detained having an opportunity to confront the evidence against them. That is a radical departure from the constitutional norms that are supposed to govern the determinations of guilt and innocence in our nation, and any supporter of civil liberties should find those provisions abhorrent.

Section 1021 is tempered somewhat by an 11th hour amendment offered by Senator Diane Feinstein (D-CA) that provides:

Nothing in this section 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.

(NDAA Section 1021(e)). What that provision does, essentially, is to kick the question of whether the military should be able to indefinitely detain US citizens to the federal courts. But that provides little solace, as the US Supreme Court in the Hamdi case has already ruled that US citizens arrested oversees as part of the “war on terror” can be indefinitely detained, and the U.S. Court of Appeals for the Fourth Circuit held the same with regards to US citizens arrested in the US in the Padilla case. While the Padilla case never reached the Supreme Court because the W. Bush Administration transferred Padilla to the judicial system, we here at Winning Progressive do not feel very secure leaving the question of indefinite military detention of US citizens up to a future Supreme Court, especially after Congress has authorized such detentions and the President signed such authorization (even with reservations).

Our confidence on this point is further eroded by the fact that various efforts to remove the provisions authorizing indefinite detention of US citizens were defeated by the US Senate. For example, Sen. Feinstein offered an amendment to make clear that only US citizens arrested overseas could be indefinitely detained by the military. That amendment failed 45-55. Senator Rand Paul, joined by five Democratic Senators (Leahy, Wyden, Merkley, Gillibrand, and Manchin), proposed an amendment to repeal the AUMF. That amendment failed 30-67. And Senator Mark Udall (D-CO), joined by six Democratic Senators (Durbin, Leahy, Webb, Feinstein, Wyden, and Franken) and Senator Rand Paul (R-KY), proposed an amendment to remove the detention provisions from the NDAA. That amendment failed 38-60. That vote total, however, does suggest that the Senate may not have been able to override a veto had the President issued one.

Congressional authorization for the President to have the military indefinitely detain US citizens is a dangerous blow to our Constitutional rights. In signing the NDAA, President Obama did express “serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists.” In his signing statement, President Obama clarified his interpretation of, and expressed his reservations regarding, portions of the NDAA. Most relevant to the detention of American citizens issue, the signing statement explained with regards to Section 1021 of the NDAA that:

Two critical limitations in section 1021 confirm that it solely codifies established authorities. First, under section 1021(d), the bill does not “limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.” Second, under section 1021(e), the bill may not be construed to affect any “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.” My Administration strongly supported the inclusion of these limitations in order to make clear beyond doubt that the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. Indeed, I believe that doing so would break with our most important traditions and values as a Nation. My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law.

This is certainly a helpful and reassuring statement for as long as the Obama Administration is in the White House. But the Administration is simply wrong when it claims that Section 1021 does nothing more than confirm existing authorities. In particular, Section 1021 represents the first time that Congress has clearly stated that it supports the President having the authority to indefinitely detain US citizens, and such statement could impact how the Supreme Court would rule on such detention.

More importantly, President Obama’s signing statement is not binding on anyone including future Administrations. And future Administrations are the biggest concern here. We have little doubt that President Obama does not intend to have the military indefinitely detain US citizens without trail, but Congressional authorization of such power is a ticking time bomb just waiting for a future reactionary President to use it. If you think the NDAA is not problematic in the hands of President Obama, ask yourself whether you would feel comfortable with President Romney, Santorum, or Gingrich having that same authority. If not, call the White House – 202-456-1111 – and let them know what you think of the detention provisions in the NDAA, and then support the organizations listed below that are fighting to protect our civil liberties.

* ACLU – the flagship organization defending civil liberties in the US since 1920 - BlogFacebookLocal Affiliates

* Bill of Rights Defense Committee – an organization formed in 2001 to defend the Bill of Rights against over-broad national security and anti-terrorism efforts – BlogFacebook - Take Action

* Center for Constitutional Rights – a legal and educational advocacy organization that seeks to protect and promote the rights guaranteed by the US Constitution and the Universal Declaration of Human Rights – Get InvolvedFacebook

Civil Liberties Part 2 – the NDAA and Indefinite Detention

Tuesday, December 27th, 2011

As we noted yesterday, over the next few weeks we will be featuring a series of posts regarding the erosion of civil liberties in the US.  Today’s post focuses on the National Defense Authorization Act of 2012 (“NDAA”) and its disturbing provisions regarding indefinite detention of individuals under the guise of the “war on terror.”  The NDAA has been the subject of much debate in the progressive blogosphere, with some seeing it as simply affirming existing law and others seeing it as mandating military detention of US citizens suspected of ties to terrorism.  Neither position is fully accurate, but our overall read is that the NDAA detention provisions set a dangerous precedent that should have been vetoed or, at the minimum, vociferously objected to by President Obama.

Leaving aside for now the issue of Guantanamo, which Congress has stymied President Obama’s efforts to close, the NDAA includes two sections that address detention.  Addressing the second section first, in Section 1022, the NDAA mandates military detention for individuals who are members of “Al-Qaeda or an associated force” and that “participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.” (NDAA Sec. 1022(a)(2)).   US citizens, however, are expressly exempted from that requirement. (NDAA Section 1022(b)(1)).  As such, contrary to what some critics have said, the NDAA does NOT mandate military detention of US citizens.  In addition, Section 1022 allows the President to waive the required military detention upon certifying that “such a waiver is in the national security interests of the United States.”  (NDAA Section 1022(a)(4)).  As a supporter of civil liberties, Winning Progressive finds disturbing the prospect of indefinite military detention of any person arrested on US soil, as we firmly believe that a government should be required to prove that a person is guilty of a crime subject to the protections offered by the Constitution and Bill of Rights.  However, the specific exemption for US citizens means that Section 1022 is not the absolute civil liberties nightmare that some have made it out to be.

The same cannot be said of Section 1021, in which Congress “affirms” that the powers granted to the President under the 2001 Authorization for Use of Military Force (“AUMF”) includes the power of the military to “detain covered persons.”  (NDAA Section 1021(a)).  In defining “covered persons” who can be detained, the NDAA identifies people involved in the Sept. 11, 2001 attacks using the same language as was used in the AUMF. (NDAA Section 1021(b)(1)).  The NDAA, however, then proceeds to identify as a second category of persons:

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.

(NDAA Section 1021(b)(2)). This language is quite problematic as the terms “substantially supported,” “belligerent act” and “directly supported such hostilities in aid of” can be read broadly to cover individuals who have, at most, a very tangential link to “al-Qaeda, the Taliban, or associated forces.”

The broadness of the language in Section 1021(b)(2) is especially problematic given that the NDAA then proceeds to allow for military detention without trial.  In particular, the NDAA identifies four possible dispositions of detained persons: (1) detention “without trial until the end of the hostilities authorized by the” AUMF, (2) trial by a military commission, (3) transfer for trial by a court, or (4) transfer to any other foreign country or entity.  (NDAA Section 1021(c)).  Detention without trial or transfer to another country means that the basis for that detention would never be tested, and even trial by a military commission would not provide anything close to the type of challenge to one’s detention is required by the Constitution and the Bill of Rights.  In other words, these provisions combined would allow a President to detain virtually anyone without  ever having the basis for that detention reviewed, without the government being required to prove that person’s guilt,  and without the person who was detained having an opportunity to confront the evidence against them.  That is a radical departure from the constitutional norms that are supposed to govern the determinations of guilt and innocence in our nation, and any supporter of civil liberties should find those provisions abhorrent.

Section 1021 is tempered somewhat by an 11th hour amendment offered by Senator Diane Feinstein (D-CA) that provides:

Nothing in this section 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.

(NDAA Section 1021(e)).  What that provision does, essentially, is to kick the question of whether the military should be able to  indefinitely detain US citizens to the federal courts.  But that provides little solace, as the US Supreme Court in the Hamdi case has already ruled that US citizens arrested oversees as part of the “war on terror” can be indefinitely detained, and the U.S. Court of Appeals for the Fourth Circuit held the same with regards to US citizens arrested in the US in the Padilla case.  While the Padilla case never reached the Supreme Court because the W. Bush Administration transferred Padilla to the judicial system, we here at Winning Progressive do not feel very secure leaving the question of indefinite military detention of US citizens up to a future Supreme Court, especially after Congress has authorized such detentions and the President signs such authorization.

Our confidence on this point is further eroded by the fact that various efforts to remove the provisions authorizing indefinite detention of US citizens were defeated by the US Senate.  For example, Sen. Feinstein offered an amendment to make clear that only US citizens arrested overseas could be indefinitely detained by the military.  That amendment failed 45-55.  Senator Rand Paul, joined by five Democratic Senators (Leahy, Wyden, Merkley, Gillibrand, and Manchin), proposed an amendment to repeal the AUMF.  That amendment failed 30-67.  And Senator Mark Udall (D-CO), joined by six Democratic Senators (Durbin, Leahy, Webb, Feinstein, Wyden, and Franken) and Senator Rand Paul (R-KY), proposed an amendment to remove the detention provisions from the NDAA.  That amendment failed 38-60.

Congressional authorization for the President to have the military indefinitely detain US citizens is a dangerous blow to our Constitutional rights that President Obama should not sign.  Unfortunately, the Administration has withdrawn its veto threat, which was never stated as being based on civil liberties concerns to begin with, and is expected to sign the legislation soon.  While the White House has signaled that it plans to include a signing statement addressing some of the concerns with the detention provisions of the NDAA, such statement is not binding on anyone including future Administrations.  And future Administrations are the biggest concern here.  We have little doubt that President Obama does not intend to have the military indefinitely detain US citizens without trail, but Congressional authorization of such power is a ticking time bomb just waiting for a future reactionary President to use it.  If you think the NDAA is not problematic in the hands of President Obama, ask yourself whether you would feel comfortable with President Perry, Gingrich, or Bachmann having that same authority.  If not, call the White House – 202-456-1111 – and let them know what you think of the detention provisions in the NDAA, and then support the organizations listed below that are fighting to protect our civil liberties.

* ACLU – the flagship organization defending civil liberties in the US since 1920 - BlogFacebookLocal Affiliates

* Bill of Rights Defense Committee – an organization formed in 2001 to defend the Bill of Rights against over-broad national security and anti-terrorism efforts – BlogFacebook - Take Action

* Center for Constitutional Rights – a legal and educational advocacy organization that seeks to protect and promote the rights guaranteed by the US Constitution and the Universal Declaration of Human Rights – Get InvolvedFacebook