Summary of Detainee Provisions in Public Law 112-81, the National Defense Authorization Act for Fiscal Year 2012, As Enacted

Tuesday, January 10, 2012

Section 1021:   Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force.

  • Section 1021 reaffirms the military’s existing authority to detain individuals captured in the course of hostilities in accordance with the law of war.  The authority extends to any person who:  (1) planned, authorized, committed, or aided the the terrorist attacks on September 11, 2001; or (2) was part of or substantially supported al Qaeda, the Taliban, or associated forces in hostilities against the United States.  This provision codifies detention authority that has been adopted by two Administrations, has been upheld in the courts, and has a centuries-long foundation in the law of war.  Unlike the bill passed by the House of Representatives, section 1021 does not expand the 2001 Authorization for Use of Military Force (AUMF).  Subsection 1021(d) states that the provision does not expand the authority of the President or the scope of the AUMF.  Subsection (e) states that nothing in the provision “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.”

Section 1022:  Military Custody for Foreign al Qaeda Terrorists.

  • Section 1022 provides for a narrowly-defined group of people – foreign al Qaeda terrorists who are captured in the course of planning or conducting attacks against us – to be held in military custody. The provision is subject to waiver by the executive branch.  The provision also specifically exempts United States citizens. It also does not apply to lawful resident aliens inside the United States, except to the extent permitted by the Constitution.  The procedures for determining who is covered by the provision are left up to the Executive Branch to establish. Those procedures are to include procedures for determining how and when such persons (i.e., foreign al Qaeda terrorists) would be transferred from civilian law enforcement to military custody, and to ensure that such determinations do not interfere with ongoing intelligence, surveillance, or interrogations.  The provision expressly authorizes the transfer of detainees for trial in civilian courts.  Subsection (d) states that nothing in the provision “shall be construed to affect the existing criminal enforcement and national security authorities” of the FBI or any other domestic law enforcement agency.  

Section 1023:  Procedures for Periodic Detention Review of Individuals Detained at United States Naval Station, Guantanamo Bay, Cuba.

  • Section 1023 requires DOD to issue procedures implementing the Executive Order issued by the President in 2011 addressing ambiguities in the process for periodic status reviews established for Guantanamo detainees.  The periodic reviews are to determine whether a detainee no longer represents a continuing threat to the security of the United States and therefore can be released from detention.  Unlike the bill passed by the House of Representatives, section 1023 does not overturn the Obama Executive Order, but provides for its implementation.

Section 1024:  Procedures for Status Determinations.

  • Section 1024 requires DOD to establish procedures for determining the status of detainees – i.e., whether or not we have legal authority to detain them.  These procedures include, for the first time, a military judge and a military lawyer for any detainee who will be held in long-term military custody.


Section 1025:  Requirement for National Security Protocols Concerning Detainee Communications.

  • Section 1025 would require the Secretary of Defense to report to Congress on policies and procedures governing communications to and from Guantanamo detainees.  Unlike the bill passed by the House of Representatives, section 1025 does not establish any statutory limitations on such communications.

Section 1026:  Prohibition on Use of Funds to Construct or Modify Facilities in the United States to House Detainees Transferred from United States Naval Station, Guantanamo Bay, Cuba.

  • Section 1026 continues for another year the restriction that has been included in past authorization and appropriations Acts signed by the President, precluding the use of DOD funds to build facilities inside the United States to house Guantanamo detainees.  This provision does not require the closure of Guantanamo, it applies only to DOD funds, and it does not prohibit the use of Department of Justice funds that might be needed in connection with the transfer of a Guantanamo detainee for trial.   

Section 1027:  Prohibition on the Use of Funds for the Transfer or Release of Individuals Detained at United States Naval Station, Guantanamo Bay, Cuba.

  • Section 1027 continues for another year the restriction that has been included in past authorization and appropriations Acts signed by the President, precluding the transfer or release of GITMO detainees inside the United States.

Section 1028:  Requirements for Certifications Relating to the Transfer of Detainees at United States Naval Station, Guantanamo Bay, Cuba, to Foreign Countries and other Foreign Entities.

  • Section 1028 continues for another year conditions on the transfer of GITMO detainees to foreign countries which have a track record of being unable to prevent released detainees from returning to battle against us.  The provision continues the requirement that the Secretary of Defense certify that appropriate steps have been taken to reduce the risk of renewed terrorist activities by detainees who are released.  Section 1028 is less restrictive than provisions included in previously enacted legislation signed by President Obama, because it includes for the first time a national security waiver.  

Section 1029:  Requirement for Consultation Regarding Prosecution of Terrorists.

  • Section 1029 requires the Attorney General to consult with the Secretary of Defense before prosecuting a foreign al Qaeda terrorist who was captured in the course of planning or conducting an attack against the United States, or any other person who is held in military custody outside the United States, on whether the more appropriate forum for trial is a federal court or a military commission and whether the individual should be held in civilian or military custody pending trial.  This provision makes it clear that the Attorney General, not the Secretary of Defense, is responsible for prosecution decisions regarding detainees who are held in military custody.  Unlike the bill passed by the House of Representatives, it would not prohibit civilian trials for any category of detainees.

Section 1030:  Clarification of Right to Plead Guilty in Trial of Capital Offense by Military Commission.

  • Section 1030 clarifies the procedures for guilty pleas in trials by military commissions.  The provision requires a separate trial on the penalty with a unanimous verdict needed to impose the death penalty.  The Supreme Court has held that defendants in the federal courts have a right to plead guilty in capital cases.  The omission of this provision would leave defendants in military commission cases without a similar right.