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The Road to the NDAA

by JOANNE MARINER

More than two weeks after the bill’s passage, President Barack Obama signed the National Defense Authorization Act (NDAA) into law last Saturday in the late afternoon.  His decision to sign the bill at a moment unconducive to press attention was probably intentional; the NDAA has been the object of increasing critical scrutiny, with the president himself publicly acknowledging some of the bill’s flaws.

In a statement that accompanied his signature, President Obama said that even though the bill had been revised in congressional negotiations, he still had “serious reservations” about NDAA provisions that regulate the detention, interrogation and prosecution of suspected terrorists.  He explained that he had signed the more than 500-page defense bill because of its military funding provisions, despite these continuing concerns.

Obama’s signature brings an official end to a legislative process that began last March, when Representative Buck McKeon and Senator John McCain introduced bills designed to shift counterterrorism responsibilities from law enforcement to the military.  (My previous column explains the legislative history of the NDAA’s detention provisions in greater detail.) These bills were grafted onto the NDAA, and revised, under threat of a presidential veto, in House and Senate committees.

But while the president’s signing statement includes several references that suggest that the new law, if interpreted broadly, might threaten core American values, Obama himself arguably helped open the door for this legislation earlier this year with his executive order on the indefinite detention of prisoners at Guantanamo.

When future historians inquire into how the practice of indefinite military detention without trial became formally entrenched in a country with such strong constitutional safeguards and stringent criminal justice guarantees, they will find that it did not happen all at once, but rather via a series of incremental steps.  President Obama is now responsible for three of them.

The first was to justify indefinite detention in litigation opposing the release of detainees held at Guantanamo; the second was to issue an executive order on indefinite detention, and the third was to sign the NDAA.

The Road to the NDAA

It was President George W. Bush, together with Vice-President Dick Cheney, Defense Secretary Donald Rumsfeld, and a host of other senior Bush administration officials who took the most radical and important steps toward establishing indefinite detention without trial as a mainstay of the US approach to fighting terrorism.  But the Bush administration, preferring to act unilaterally, did not even bother to seek congressional sanction for its indefinite detention schemes.  It established Guantanamo on its own, held American citizens without charge in the absence of a legislative mandate to do so, and fought judicial oversight tooth and nail.

Obama entered office as a reformer, promising to close Guantanamo within a year.  Yet, disappointingly, the first signs of flagging commitment to reform came early.  Ina filing submitted to a federal district court on March 13, 2009 in litigation over indefinite detention at Guantanamo, the Obama administration adopted the Bush administration’s position that persons allegedly involved in terrorism were participating in a war and could be held indefinitely without trial.  While the court papers emphasized that the administration’s newly-articulated views were subject to change, that change never occurred.

Indeed, the indefinite detention rules codified in the NDAA owe a clear debt to the administration’s March 13 filing.  Section 1021 of the NDAA, the law’s key provision on indefinite detention, uses language that closely mirrors and is substantively identical to the language of the March 13 brief.  It establishes that not only may members of Al Qaeda, the Taliban and “associated forces” be subject to indefinite detention, but so may persons who “substantially supported” those forces.

Over the past three years, the Obama administration has aggressively litigated its power to continue to hold detainees indefinitely at Guantanamo, even in cases of detainees like Mohamedou Ould Slahi—people who are terrorists, if the administration’s allegations are correct, but who have no connection to traditional armed conflict.  Still, even given the administration’s court filings, its decision in March 2011 to issue an executive order on indefinite detention was disappointing. Although the March 7 order only applied to prisoners already in detention at Guantanamo, not future suspects, and it expressly disavowed any intention of creating new legal authority for detention, it still formally established indefinite detention without trial as a long-term Obama administration policy.  It made prospects for detention reform seem ever more remote.

The motivations behind the March 7 order may have been praiseworthy. Facing pressure from congressional Republicans like John McCain to rely more extensively on indefinite military detention, the administration no doubt hoped in March that it could preempt legislative action by taking the initiative.

That strategy obviously failed.

And Representative Peter King, a conservative Republican who heads the House Committee on Homeland Security, understood the situation all too well when he gloated: “The bottom line is that [the executive order] affirms the Bush Administration policy that our government has the right to detain dangerous terrorists until the cessation of hostilities.” By formally embracing the indefinite detention framework, the Obama administration ceded the moral high ground necessary to effectively oppose further expansion of the policy.

Days after the executive order was issued, several Republicans announced that they would seek to introduce military detention legislation; it was these detention provisions that ended up in the NDAA.

The Indefinite Detention of American Citizens

The most controversial element of the NDAA is its supposed application to US citizens.  The New York Times warned in an editorial that the law could “give future presidents the authority to throw American citizens into prison for life without charges or a trial.”

Congressional supporters of the NDAA have argued that these claims are wildly overblown. Representative Mac Thornberry, for example, a member of the House Armed Services Committee from Texas, complained bluntly of “misinformation” about the bill.

In a blog post dated December 16, Thornberry asserted that not only does the legislation not allow the indefinite detention of US citizens, it improves on existing law by extending citizens explicit new protections. To support this claim, he cites section 1022(b)(1) of the NDAA, which provides: “The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”

“If words have meaning,” he insists, “that is about as clear as English can get.”

Words have meaning, but they can also be taken out of context.  The provision that Thornberry cites only exempts American citizens from being covered by section 1022 of the new law, which creates a new presumption of military detention for certain terrorist suspects.  Notably, section 1022(b)(1) does not exempt American citizens from the more important provisions in section 1021, which allow the military detention of broad categories of terrorist suspects.  It does not, therefore, improve on the status quo by extending any new protections to Americans.

Moreover, the specific exemption for American citizens in section 1022 could be understood as suggesting, by negative implication, that American citizens are covered by section 1021.  Potentially reinforcing this view is the fact that an effort to amend section 1021 to exempt citizens failed in the Senate.  If, in the future, judges decide to refer to the statute’s legislative history to help ascertain its scope, the lack of such an exemption may be determinative.

Another provision that Thornberry cites is equally unhelpful to his claim.  Subsection 1021(e) says that section 1021 does not change existing law “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.”

On its face, it should be obvious that this provision does not specifically protect citizens; in fact, the reference to citizens is entirely superfluous. (The provision might just as well have specified “redheads, AARP members, and any other persons who are captured or arrested in the United States.” If it had not been written with future political maneuvering in mind, it would simply have referred to “the detention of persons who are captured or arrested in the United States.”)

One way in which the language of the provision is meaningful, however, is in its specific reference to captures and arrests that occur “in the United States.” To whatever extent the provision serves to curb the law’s scope, it clearly does not stop the law from strengthening and expanding the government’s legal authority to detain indefinitely persons arrested outside of the United States—whether US citizens or non-citizens, and whether the arrests take place in Pakistan or in Paris. In short, the relevant line is not one of citizenship, but of location.

Moreover, the provision’s reference to “existing law” begs far too many questions.  It is precisely the scope of existing law that is subject to vociferous debate and continuing litigation.  Under the Bush administration, the law was interpreted to allow the indefinite detention of both citizens and non-citizens arrested anywhere in the world, including the United States.

While the Supreme Court upheld the military detention of an American citizen captured as part of the armed conflict in Afghanistan, it has  yet to hear an indefinite detention case involving anyone—citizen or non-citizen—picked up in the United States.  Nor has it handled a case involving a terrorist suspect, as opposed to a participant in a traditional armed conflict.  With these fundamental questions still in play, it is disingenuous to say that the law could not be used to detain Americans deemed to be involved in terrorism.

A Fair Reading of the NDAA

A fair reading of the new law would acknowledge a couple of basic points.

First, the NDAA at minimum reinforces and strengthens governmental authority to hold indefinitely terrorist suspects arrested outside of the United States, including American citizens arrested outside of the United States.  By giving the practice an explicit statutory grounding—and one that is broadly worded—the NDAA makes the practice of indefinite military detention less vulnerable to legal challenge.  With two branches of government now firmly behind the practice of indefinite detention, the Supreme Court will be hesitant to strike down as unconstitutional even the most aggressive assertions of the detention power.

Second, the law puts great pressure on the president to rely more extensively on indefinite military detention and military commission trials. While it does not actually make military detention mandatory for any category of suspect, given the existence of waivers and other loopholes, it provides Congress with ample grounds for post-hoc criticism of the president’s every detention decision.

In a politically-charged situation like the Abdulmutallab case (the case of the so-called “underwear bomber”), the NDAA could make it much more difficult for the president to keep the suspect in the civilian justice system.  Particularly if a terrorist attack were successful or close to successful, members of Congress would line up to appear on Fox News to assert that the NDAA’s provisions had been improperly applied.

This would likely be true whether or not the suspect was a citizen.

In his signing statement last Saturday, President Obama sought to assuage fears as follows:  “I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.”  The public should bear in mind, however, that President Obama’s promise does not bind any future president.

A Question of Values

In his signing statement, President Obama said that his administration would interpret the NDAA’s more problematic provisions “in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.” The statement also promised that the Obama administration would “seek the repeal of any provisions that undermine the policies and values that have guided my Administration throughout my time in office.”

While the president’s emphasis on flexibility is consistent with his administration’s practice of relying on both criminal justice and military detention options in fighting terrorism, he is mistaken if he thinks that this approach conforms to US constitutional values.

Rejecting indefinite detention without trial is a matter of fundamental constitutional principle. Not only should President Obama seek the repeal of the NDAA’s detention provisions, he should renew his stated goal of closing Guantanamo.

Joanne Mariner is the director of Hunter College’s Human Rights Program. She is an expert on human rights, counterterrorism, and international humanitarian law.  

This column previously appeared on Justia’s Verdict.

JOANNE MARINER is a human rights lawyer living in New York and Paris.

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