National Defense Authorization Act for Fiscal Year 2012

 

 

The National Defense Authorization Act (NDAA) for Fiscal Year 2012 was signed into United States law on December 31, 2011, by President Barack Obama.

The Act authorizes $662 billion in funding, among other things "for the defense of the United States and its interests abroad." In a signing statement, President Obama described the Act as addressing national security programs, Department of Defense health care costs, counter-terrorism within the U.S. and abroad, and military modernization. The Act also imposes new economic sanctions against Iran (section 1045), commissions appraisals of the military capabilities of countries such as Iran, China, and Russia, and refocuses the strategic goals of NATO towards "energy security." The Act also increases pay and healthcare costs for military service members and gives governors the ability to request the help of military reservists in the event of a hurricane, earthquake, flood, terrorist attack or other disaster.

The most controversial provisions to receive wide attention were contained in Title X, Subtitle D, entitled "Counter-Terrorism." In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism. The controversy was to their legal meaning and potential implications for abuse of Presidential authority. Although the White House and Senate sponsors maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress "affirms" this authority and makes specific provisions as to the exercise of that authority. The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU), the Bill of Rights Defense Committee, and some media sources which are concerned about the scope of the President's authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces.

The bill passed the House 283 to 136.

In May 2012 federal court issued a preliminary injunction which temporarily blocked the indefinite detention powers of the NDAA for American citizens (section 1021) on the grounds of unconstitutionality. On August 6, 2012 federal prosecutors representing President Obama and Defense Secretary Leon Panetta filed a notice of appeal with the 2nd US Circuit Court of Appeals hoping to eliminate the ban. The following day, arguments from both sides were heard by Judge Forrest during a hearing to make her injunction permanent. On September 13, 2012, Judge Forrest affirmed her earlier ruling, making the block permanent. The permanent block was appealed by the Obama Administration on September 14, 2012.

Indefinite detention without trial: Section 1021

Detainees upon arrival at Camp X-Ray, January 2002. In May 2006, the UN Committee against Torture condemned prisoners' treatment at Guantánamo Bay, noting that indefinite detention constitutes per se a violation of the UN Convention Against Torture.

The detention sections of the NDAA begin by "affirm[ing]" that the authority of the President under the AUMF, a joint resolution passed in the immediate aftermath of the September 11, 2001 attacks, includes the power to detain, via the Armed Forces, any person (including U.S. citizens) "who was 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", and anyone who commits a "belligerent act" against the U.S. or its coalition allies in aid of such enemy forces, under the law of war, "without trial, until the end of the hostilities authorized by the [AUMF]". The text authorizes trial by military tribunal, or "transfer to the custody or control of the person's country of origin", or transfer to "any other foreign country, or any other foreign entity".

Addressing previous conflict with the Obama Administration regarding the wording of the Senate text, the Senate-House compromise text, in sub-section 1021(d), also affirms that nothing in the Act "is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force". The final version of the bill also provides, in sub-section(e), 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." As reflected in Senate debate over the bill, there is a great deal of controversy over the status of existing law.

An amendment to the Act that would have replaced current text with a requirement for executive clarification of detention authorities was rejected by the Senate.

According to Senator Carl Levin, "the language which precluded the application of section 1031 to American Citizens was in the bill that we originally approved in the Armed Services Committee and the Administration asked us to remove the language which says that US Citizens and lawful residents would not be subject to this section". The Senator refers to section 1021 as "1031" because it was section 1031 at the time of his speaking.

Legal challenges to indefinite detention

Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint January 13, 2012, in the Southern U.S. District Court in New York City on the behalf of Chris Hedges against Barack Obama and Secretary of Defense Leon Panetta to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31. Additionally plaintiffs were also included into the suit such as Noam Chomsky, Daniel Ellsberg, Naomi Wolf, and Cornel West.

The federal court in New York City issued an order blocking the indefinite detention powers of the NDAA for American citizens after finding it unconstitutional. On May 16, 2012, in response to the lawsuit filed by journalist Chris Hedges, Noam Chomsky, Naomi Wolf and others, US District Judge Katherine B. Forrest ruled in a 68-page opinion that Section 1021 of the NDAA was unconstitutional because it violates the 1st and 5th Amendments. Judge Forrest struck down language in the law that she said gave the government the ability to incarcerate people based on what they said or wrote. “At the hearing on this motion, the government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under [Section] 1021,” Judge Forrest noted. “Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years.” Judge Forrest therefore issued a preliminary injunction which prevents the US government from enforcing section 1021 of the NDAA's "Homeland Battlefield" provisions pending further order of the court or an amendment to the statute by US Congress.

Judge Forrest was requested by the Obama administration to undo her ruling. In a footnote of the request, the Administration claimed "The government construes this Court’s Order as applying only as to the named plaintiffs in this suit".

In an opinion and order filed June 6, 2012, Judge Forrest clarified her statement, saying that her injunction applies not just to the named plaintiffs in the suit, contrary to government's narrow interpretation. She wrote, “Put more bluntly, the May 16 order enjoined enforcement of Section 1021(b)(2) against anyone until further action by this, or a higher, court — or by Congress...This order should eliminate any doubt as to the May 16 order’s scope”. The detention provision is not blocked for any persons connected to the September 11 attacks.

The U.S. government appealed Judge's Forrest preliminary injunction which prevents the U.S. government from enforcing section 1021 of the National Defense Authorization Act's "Homeland Battlefield" provisions on August 6, 2012. The Manhattan U.S. Attorney's office, which represents the government in this case, along with named defendants Obama and Defense Secretary Leon Panetta filed its notice of appeal with the 2nd U.S. Circuit Court of Appeals. The federal government argues in its appeal that in cases dealing with “militants” and those offering “substantial support” to them indefinite detention without due process is appropriate. According to Reuters the US government believes they are justified to have the authorization to lock alleged belligerents up indefinitely because cases involving militants directly aligned against the good of the US government warrants such punishment.

In a court hearing chaired by Judge Forrest on August 7, 2012 the plaintiffs were asking the court for a permanent injunction of the indefinite detention powers of the NDAA. During this hearing Assistant U.S. Attorney Benjamin Torrance admitted that the government doesn't specify whether detainees are held under the NDAA provisions or under the Authorization for the Use of Military Force. Consequently, the government was continuing to detain people covered by the challenged provisions in spite of the court's injunction. One of the plaintiff's attorneys, Carl Mayer, said later that he and his colleagues were considering bringing contempt of court charges over what he called an apparent disregard for the court injunction. Judge Forrest closed the hearing with a promise that she had not yet made her mind up i.e. that she had not yet reached a decision regarding making her preliminary injunction permanent.

On August 9th, 2012 Tangerine Bolen, one of the plaintiffs in the trial, reported that the attorneys for the US government were unwilling or unable to answer whether or not the US government has complied with Judge Forrest's court order: "in this hearing, Obama’s attorneys refused to assure the court, when questioned, that the NDAA’s provision – one that permits reporters and others who have not committed crimes to be detained without trial -- has not been applied by the US government anywhere in the world -- AFTER Judge Forrest’s injunction. In other words, they were saying to a US judge that they could not or would not state whether Obama’s government had complied with the legal injunction that she had lain down before them. To this, Judge Forrest responded that if the provision has indeed been applied, the United States government itself will be in contempt of court."

U.S. District Judge Katherine Forrest granted the the plaintiffs request for a permanent injunction of the indefinite detention powers of the NDAA on September 12, 2012. Forrest issued a permanent injunction barring the government from relying on the defense authorization law to hold people in indefinite military detention on suspicion that they “substantially supported” Al Qaeda or its allies — at least if they had no connection to the Sept. 11 attacks. The Judge said the law is unconstitutionally vague and violates rights guaranteed by the First, Fifth and 14th Amendments to the U.S. Constitution. "First Amendment rights are guaranteed by the Constitution and cannot be legislated away," Forrest said in her new ruling. "This Court rejects the Government's suggestion that American citizens can be placed in military detention indefinitely, for acts they could not predict might subject them to detention." "When the government was asked by the court what the words 'substantially supported' mean, it was unable to provide a definition; the same was true for 'directly supported,'" she wrote in her new order, which makes the preliminary injunction permanent. "There can be no doubt, then, these terms are vague." That vagueness does not put citizens on notice, in violation of the due process clause of the Fifth Amendment, she ruled. Forrest also rejected the US government's position that federal courts should provide habeus corpus, rather than judicial, review to military detainees as "without merit" and "dangerous" and refused to "abdicate" her duty to protect constitutional rights out of deference for executive power. "Courts must safeguard core constitutional rights," she wrote. "A long line of Supreme Court precedent adheres to that fundamental principle in unequivocal language. Although it is true that there are scattered cases -- primarily decided during World War II -- in which the Supreme Court sanctioned undue deference to the executive and legislative branches on constitutional questions, those cases are generally now considered an embarrassment." The military detentions of Fred Korematsu, in a Japanese internment camp, and Nazi saboteur Richard Quirin, who was executed by a war court, provide two such examples, Forrest said. "The court is mindful of the extraordinary importance of the government's efforts to safeguard the country from terrorism. In light of the high stakes of those efforts as well as the executive branch's expertise, courts undoubtedly owe the political branches a great deal of deference in the area of national security," the order states. "Nevertheless, the Constitution places affirmative limits on the power of the Executive to act, and these limits apply in times of peace as well as times of war. Heedlessly to refuse to hear constitutional challenges to the Executive's conduct in the name of deference would be to abdicate this court's responsibility to safeguard the rights it has sworn to uphold." Forrest declared that the NDAA cannot be used to hold people in indefinite military detention on suspicion of having "substantially supported" al-Qaeda or its allies. "The law of war has never been, and should not be, part of the domestic laws in the United States," she wrote. "The law of war is vague by necessity -- it needs flexibility. It is therefore ill-suited to domestic application and it would be ill-advised to make it a part of domestic law."

The U.S. appealed Judge Forrest September 12, 2012 ruling Lawyers because lawyers from the office of U.S. Attorney Preet Bharara in Manhattan filed papers on September 14, 2012 seeking review of Forrest's September 12, 2012 ruling on the law.

States calling for ban on indefinite detention

Nine states have introduced bills aiming to adjust or repeal the detainment provisions of the 2012 NDAA. In June, Rhode Island passed a resolution calling on Congress to repeal Sections 1021 and 1022. In mid June, Michigan began considering a block against any state cooperation with federal officials who wish to detain Americans under sections 1021 and 1022. In July, the Clark County Republican Party Central Committee of Nevada unanimously passed a resolution denouncing the 2012 NDAA, and requesting the Sheriff act against it immediately. The group called sections 1021 and 1022 “blatant attacks on the United States Constitution, specifically Amendments 4, 5, 6, and 8 of our Bill of Rights”.

Requirement for military custody: Section 1022

All persons arrested and detained according to the provisions of section 1021, including those detained on U.S. soil, whether detained indefinitely or not, are required to be held by the United States Armed Forces. The law affords the option to have U.S. citizens detained by the armed forces but this requirement does not extend to them, as with foreign persons. Lawful resident aliens may or may not be required to be detained by the Armed Forces, "on the basis of conduct taking place within the United States."

During debate on the senate floor, Levin stated that "Administration officials reviewed the draft language for this provision and recommended additional changes. We were able to accommodate those recommendations, except for the Administration request that the provision apply only to detainees captured overseas and there's a good reason for that. Even here, the difference is modest, because the provision already excludes all U.S. citizens. It also excludes lawful residents of U.S., except to extent permitted by the constitution. The only covered persons left are those who are illegally in this country or on a tourists/short-term basis. Contrary to some press statements, the detainee provisions in our bill do not include new authority for the permanent detention of suspected terrorists. Rather, the bill uses language provided by the Administration to codify existing authority that has been upheld in federal courts."

Actions from the White House and Senate leading to the vote

The White House threatened to veto the Senate version of the Act, arguing in an executive statement on 17 November 2011 that while "the authorities granted by the Authorization for Use of Military Force Against Terrorists, including the detention authority... are essential to our ability to protect the American people... (and) Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk."

The statement furthermore objected to the mandate for "military custody for a certain class of terrorism suspects," which it called inconsistent with "the fundamental American principle that our military does not patrol our streets." The White House may now waive the requirement for military custody for some detainees following a review by appointed officials including the Attorney General, the secretaries of state, defense and homeland security, the chairman of the military’s Joint Chiefs of Staff and the director of national intelligence.

During debate within the Senate and before the Act's passage, Senator Mark Udall introduced an amendment interpreted by the ACLU and some news sources as an effort to limit military detention of American citizens indefinitely and without trial. The amendment proposed to strike the section "Detainee Matters" from the bill, and replace section 1021 (then titled 1031) with a provision requiring the Administration to clarify the Executive's authority to detain suspects on the basis of the 2001 Authorization for Use of Military Force Against Terrorists. The amendment was rejected by a vote of 60-38 (with 2 abstaining). Udall subsequently voted for the Act in the joint session of Congress that passed it, and though he remained "extremely troubled" by the detainee provisions, he promised to "push Congress to conduct the maximum amount of oversight possible."

The Senate later adopted by a 98 to 1 vote a compromise amendment, based upon a proposal by Senator Dianne Feinstein, which preserves current law concerning U.S. citizens and lawful resident aliens detained within the United States. After a Senate-House compromise text explicitly ruled out any limitation of the President's authorities, but also removed the requirement of military detention for terrorism suspects arrested in the United States, the White House issued a statement saying that it would not veto the bill.

In his Signing Statement, President Obama explained: “"I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed . . . I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists."

Controversy over indefinite detention

American and international reactions

Section 1021 and 1022 have been called a violation of constitutional principles and of the Bill of Rights. Internationally, the UK-based newspaper The Guardian has described the legislation as allowing indefinite detention "without trial [of] American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay;" Al Jazeera has written that the Act "gives the US military the option to detain US citizens suspected of participating or aiding in terrorist activities without a trial, indefinitely." The official Russian international radio broadcasting service Voice of Russia has been highly critical of the legislation, writing that under its authority "the US military will have the power to detain Americans suspected of involvement in terrorism without charge or trial and imprison them for an indefinite period of time;" it has furthermore written that "the most radical analysts are comparing the new law to the edicts of the 'Third Reich' or 'Muslim tyrannies.'" The Act was strongly opposed by the ACLU, Amnesty International, Human Rights First, Human Rights Watch, The Center for Constitutional Rights, and The Council on American-Islamic Relations, and was criticized in editorials published in The New York Times and other news organizations.

Americans have sought resistance of the NDAA through successful resolution campaigns in various states and municipalities. The state of Rhode Island, the Colorado counties of Wade, El Paso, and Fremont, as well as the municipalities of Northampton, MA. and Fairfax, CA, have all passed resolutions rejecting the indefinite detention provisions of the NDAA. The Bill of Rights Defense Committee has launched a national campaign to mobilize individuals at the grassroots level to pass local and state resolutions voicing opposition to the NDAA. Campaigns have begun to grow in New York City, Miami and San Diego, among other cities and states.

Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint January 13, 2012, in the Southern U.S. District Court in New York City on the behalf of Chris Hedges against Barack Obama and Secretary of Defense Leon Panetta to challenge the legality of the Authorization for Use of Military Force as embedded in the latest version of the National Defense Authorization Act, signed by the president Dec. 31.

Views of the Obama Administration

On December 31 and after signing the National Defense Authorization Act for Fiscal Year 2012 into law, President Obama issued a statement on it addressing "certain provisions that regulate the detention, interrogation, and prosecution of terrorism suspects". In the statement Obama maintains that "the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF". The statement also maintains that the "Administration will not authorize the indefinite military detention without trial of American citizens", and that it "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". Referring to the applicability of civilian versus military detention, the statement argued that "the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost."

On February 28, 2012, the Obama Administration announced that it would waive the requirement for military detention in "any case in which officials [believe] that placing a detainee in military custody could impede counterterrorism cooperation with the detainee’s home government or interfere with efforts to secure the person’s cooperation or confession". Application of military custody to any suspect is determined by a national security team including the attorney general, the secretaries of state, defense and homeland security, the chairman of the Joint Chiefs of Staff, and the director of national intelligence.

Legal arguments that the legislation does not allow the indefinite detention of US citizens

Mother Jones has written that the Act "is the first concrete gesture Congress has made towards turning the homeland into the battlefield," arguing that "codifying indefinite detention on American soil is a very dangerous step." The magazine has nevertheless contested claims by The Guardian and The New York Times that the Act "allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay," writing that "they're simply wrong... It allows people who think the 2001 Authorization to Use Military Force against the perpetrators of the 9/11 attacks gives the president the authority to detain US citizens without charge or trial to say that, but it also allows people who can read the Constitution of the United States to argue something else." Legal commentator Joanne Mariner has noted in Verdict that the scope of existing detention power under the AUMF is "subject to vociferous debate and continuing litigation." In the years that followed the September 11 attacks, the AUMF was interpreted to allow the indefinite detention of both citizens and non-citizens arrested far from any traditional battlefield, including in the United States.

Other legal commentators argue that the NDAA does not permit truly "indefinite" detention, given that the period of detention is limited by the duration of the armed conflict. In making this claim, they emphasize the difference between (1) detention pursuant to the "laws of war" and (2) detention pursuant to domestic criminal law authorities. David Rivkin and Lee Casey, for example, argue that detention under the AUMF is authorized under the laws of war and is not indefinite because the authority to detain ends with the cessation of hostilities. They argue that the NDAA invokes "existing Supreme Court precedent . . . that clearly permits the military detention (and even trial) of citizens who have themselves engaged in hostile acts or have supported such acts to the extent that they are properly classified as 'combatants' or 'belligerents.'" This reflects the fact that, in their view, the United States is, pursuant to the AUMF, at war with al-Qaeda, and detention of enemy combatants in accordance with the laws of war is authorized. In their view, this does not preclude trial in civilian courts, but it does not require that the detainee be charged and tried. If the detainee is an enemy combatant who has not violated the laws of war, he is not chargeable with any triable offense. Commentators who share this view emphasize the need not to blur the distinction between domestic criminal law and the laws of war.

Legal arguments that the legislation allows indefinite detention

The American Civil Liberties Union has stated that "While President Obama issued a signing statement saying he had 'serious reservations' about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA." and, despite claims to the contrary, "The statute contains a sweeping worldwide indefinite detention provision... [without] temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield." The ACLU also maintains that "the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war."

Proposed legislative reforms

Following the passage of the NDAA, various proposals have been offered to clarify the detainee provisions. One example, H.R. 3676, sponsored by U.S. Representative Jeff Landry of Louisiana, would amend the NDAA "to specify that no U.S. citizen may be detained against his or her will without all the rights of due process." Other similar bills in the U.S. House of Representatives have been introduced by Representatives John Garamendi of California and Chris Gibson of New York.

Sanctions targeting the Iranian Central Bank

Main article: U.S. sanctions against Iran

As part of the ongoing dispute over Iranian uranium enrichment, section 1245 of the NDAA imposes unilateral sanctions against the Central Bank of Iran, effectively blocking Iranian oil exports to countries which do business with the United States. The new sanctions impose penalties against entities — including corporations and foreign central banks — which engage in transactions with the Iranian central bank. Sanctions on transactions unrelated to petroleum take effect 60 days after the bill is signed into law, while sanctions on transactions related to petroleum take effect a minimum of six months after the bill's signing. The bill grants the U.S. President authority to grant waivers in cases in which petroleum purchasers are unable, due to supply or cost, to significantly reduce their purchases of Iranian oil, or in which American national security is threatened by implementation of the sanctions. Following the signing into law of the NDAA, the Iranian rial fell significantly against the U.S. dollar, reaching a record low two days after the bill's enactment, a change widely attributed to the expected impact of the new sanctions on the Iranian economy. Officials within the Iranian government have threatened to close the Strait of Hormuz, an important passageway for Middle East oil exports, should the U.S. press forward with the new sanctions, as planned.

Military Pay and Benefits

Amendments made to the bill following its passage include a 1.6 percent pay increase for all service members, and an increase in military healthcare enrollment and copay fees. The changes were unanimously endorsed by the Senate Armed Services Committee.

See also

• Authorization for Use of Military Force Against Terrorists
• Enemy Expatriation Act
• Hamdan v. Rumsfeld
• Hamdi v. Rumsfeld
• Marbury v. Madison
• Military Commissions Act of 2006
• National Defense Authorization Act
• Posse Comitatus Act
• Ex parte Quirin
• Smith Act
• Unlawful combatant

External links

• Full Text of the Act (Public Law 112-81)