Understanding the NDAA

The NDAA seems to reaffirm law that was already put in place with a few disconcerting changes that may give more flexibility and rights to accused terrorists and increased culpability to US citizens. 

Section 1021 expands the President’s authority beyond anything that current law or court precedent now gives him. While the AUMF may imply the authority of the President to indefinitely detain US citizens accused of perpetrating or facilitating an act of terror in the context of war, the definition of those who can be detained is very narrow and lucid, targeting two kinds of people–those who helped with the 9/11 attacks and those who harbored people who did.

Section 1021 targets the same people pending disposition under the law of war and then adds an entirely new category: those who were 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.

It goes on to say that “Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force” and that “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.” If this were true, why did they feel the need to add those extra ambiguous words to the definition of covered persons? Why wouldn’t the AUMF be sufficient? This is very confusing.

One of the reasons the President decided to sign the recent version of the bill was because it authorized him to grant a waiver issuing an exemption to military detention for a particular prisoner so he could be brought to trial in a civilian court. The original version of the 2012 NDAA prohibited the use of civilian courts in prosecuting Al Qaeda suspects. It allowed for the use of exceptions to military detention, requiring approval by the President, the Secretary of Defense, Secretary of State, and the Director of National Intelligence. However, President Obama insisted this provision be changed to allow the President to issue these national security waivers on his own. So the President can now decide unilaterally whether a suspected terrorist should be held in civilian custody or military custody. US citizens are exempt from mandatory military detention since the requirement only applies to a particular subset of covered persons, which includes members of al Qaeda or its associated forces; however, they are not precluded from the possibility. Under the definition of “covered persons” anyone suspected can potentially be detained by the armed forces pending disposition under the law of war. However this requirement is not so mandatory since the President can issue waivers for exemption that no longer need the approval of other departments.

Disposition under the law of war can include: detention under the law of war without trial until the end of the hostilities, a trial by military commission, trial by “an alternative court such as civilian trial, or competent tribunal having lawful jurisdiction,” or be transferred to another country.  Theoretically, a US citizen accused of committing a belligerent act, whatever that may be, can be deported to another country.

Section 1024 grants additional rights to any unprivileged enemy belligerent held in long-term military detention and who is not already subject to habeas corpus review, such as those detainees in Afghanistan, by affording them the right to a military lawyer and a proceeding before a military judge to contest their grounds for detention. They already have access to the Detainee Review Board screening process, which is quite sufficient. Now lawyers and judges have been included in the list of benefits for those who attack Americans with human shields.

The NDAA continues to uphold the prohibition on the transfer of detainees to the US and forbids the use of any funds toward building an alternate site. Any Guantanamo detainees that may be freed must be transferred to other countries.

Essentially the NDAA empowers the President by officially granting him the authority he always claimed to have had but technically didn’t under law. This congressional affirmation could open the door to vulnerabilities down the road and may be an invitation for abuse.