The Detainee Provisions in the National Defense Authorization Act for FY 2012

Tuesday, January 10, 2012

On Dec. 31, 2011, President Obama signed the National Defense Authorization Act for Fiscal Year 2012. This bill includes important funding for our troops and their families and for the nation’s defense, but most Americans have heard about only one small portion of the statute, one dealing with the handling of terrorism detainees. Unfortunately, much of what has been said and written about the detainee provisions is simply wrong. If this bill did what some people claim it does, I would have opposed it myself.

I’d like to lay out what these provisions actually do – and, just as important, what they don’t do. And I’d like to point you to some objective and accurate information about these provisions so you can make up your own mind on this important issue.

Let’s start with what the legislation actually does.  First, it affirms the Obama administration’s military detention policy for individuals captured in our fight against al Qaeda, a position upheld by the federal courts.  This provision will prevent future administrations from adopting more expansive and problematic interpretations of military detention authority. Second, it establishes a presumption of military detention in the case of one narrow category of individuals – foreign al Qaeda terrorists who are captured in the course of planning or conducting attacks against the United States. The executive branch can waive that presumption, and its ability to try detainees in civilian courts is protected. Third, it establishes new procedural rights, including access to a military judge and a military lawyer, for any individual who is to be held in long-term military detention.  I have attached a summary of the detainee provisions, explaining in a straightforward manner what each of the provisions actually does.

 Now, let’s turn to some common inaccurate statements about the legislation:

-- It prohibits civilian trials of terror suspects. False. In fact, the legislation specifically authorizes the use of civilian courts.

-- It strips the FBI and other federal law enforcement agencies of their anti-terrorism duties and hands those authorities to the military. False. The statute specifically preserves the role of civilian law enforcement, saying its provisions on detention of foreign al Qaeda terrorists shall not “be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to [terror suspects].” The military is not given any new authority to conduct investigations or make arrests inside the United States.

-- It allows military troops to make arrests on U.S. soil. False. Posse comitatus, the Civil War-era law that bars the military from civilian law enforcement functions, remains unchanged.

-- It gives presidents new authority to indefinitely hold U.S. citizens without charge or trial. False. The legislation does not change current law regarding U.S. citizens.  In fact, the bill specifically states that its provisions do 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.” While one provision establishes a presumption that foreign al Qaeda detainees will be held by the military, U.S. citizens are specifically exempted from this provision.

-- It allows indefinite detention of U.S. citizens without access to civilian courts. False. The law does not affect the right of habeas corpus – the right to petition a court to challenge detention before a judge.

Thanks for taking the time to learn more about this important issue. If you’re still curious about detention policy and the National Defense Authorization Act, you might read the work of two respected legal experts who have written extensively on these provisions. While they don’t always agree with the legislation, Benjamin Wittes and Robert Chesney have written a useful summary that counters what they call the “sheer, unadulterated nonsense zipping around the internet” about the detainee provisions.