The NDAA for 2012: what it means for us

Part 5 of 5

In Part Four of this series, Church analyzed various sections of the National Defense Authorization Act. In this final part, he evaluates how well President Obama acquitted himself with the NDAA, and expresses his own grave concerns for when succeeding administrations take over.

So where does all this leave us?  Not terribly far from where we were:

1. Detention authority — The National Defense Authorization Act for Fiscal Year 2012 (NDAA) is really a codification of the existing authority the administration claims. “It puts Congress’s stamp of approval behind that claim for the first time, and that’s no small thing. But it does not — notwithstanding the widespread belief to the contrary — expand it. Nobody who is not subject to detention today will become so when the NDAA goes into effect ...,” Wittes and Chesney say.

2. Indefinite detention of citizens — They also tell us that the NDAA does not authorize such detention, but it does not foreclose it either. Congress ultimately included language expressly designed to leave the question untouched, that is, governed by pre-existing law, which is unsettled on the question.

3. Does the NDAA mandate military detention of terrorism suspects? — “Not really, though both supporters and critics seem quite sure that it does,”  say Wittes and Chesney. Rather, the NDAA sets military detention as a quasi-default position for a subset of detainable persons (members — not independent supporters — of al-Qaeda or its associated forces, but not the Taliban or its associated forces).  

The government can nonetheless elect the civilian prosecution option as its preferred disposition “under the law of war,” and the statute provides a “waiver” mechanism that simply turns the mandatory detention requirement off altogether, on a written certification by the president or his designee that a waiver is in the best interests of national security.  Either of these elections will be a visible, discrete act that can be the basis for political criticism.

4.  Closure of Guantanamo Bay detention facility — The NDAA in Sections 1026 and 1027 does three things that makes it impossible, at least during fiscal year 2012, for President Obama to fulfill his promise to close the detention facility. It forbids him to spend any money readying an alternative site to house detainees in the United States; it forbids transfers of detainees to the United States; and it makes it difficult — though a little less difficult than it has been, note Wittes and Chesney — to transfer detainees to third countries.

5.  Does it prevent civilian criminal trials of terrorism suspects? — Yes and no, Wittes and Chesney tell us. The restriction on transfer to the United States of Guantanamo detainees prevents civilian trials for anyone there. (Think, most notoriously, of Khalid Sheikh Mohammed, the alleged 9/11 mastermind).  But the NDAA does not prevent civilian criminal trials for new captures, though it does authorize military detention as an alternative and in some cases as a default option.

Perhaps, given the extravagant claims about the NDAA, I should add that, no, it does not repeal the Bill of Rights, as the aforementioned BenjaminWittes and Robert Chesney agree.  To the extent that any provision is found to conflict with any provision in the Bill of Rights, it will not survive constitutional scrutiny.  

And human rights groups and civil libertarians should be pleased about Section 1024, which as noted requires that people subject to long-term military detention for which habeas corpus review is not available — think of the Detention Facility in Parwan,  Afghanistan — henceforth shall have the right to a military lawyer and a proceeding before a military judge to contest the factual basis for his detention.

How well did Barack Obama acquit himself? Given the final vote tallies in the Senate and the House, the two-thirds majorities in both houses required by Article I, Section 7 of the Constitution for overriding a presidential veto would have been available, absent some later vote flipping.  And it is never easy to veto a defense authorization bill.  Hence, doing what he did — negotiating to change the worst aspects then signing the bill — was at least a highly defensible course.

But that is not to say that the NDAA is not a cause for worry. Most vitally, presidential signing statements do not bind subsequent chief executives.  When Barack Obama says that his “administration will not authorize the indefinite military detention without trial of American citizens,” I take that very seriously.  

But what of the future?

As the aforementioned Scott Horton explained: “If you’ve watched any of the recent G.O.P. presidential debates, then you know that all of the contenders (excepting Ron Paul and possibly Jon Huntsman) embrace torture techniques like waterboarding, would expand Guantanamo, believe that military prisons are the alternative to an ineffective criminal justice system, would revive extraordinary renditions and CIA black sites, and generally rush to characterize anyone who thinks differently about the world as un-American or worse ... The question therefore becomes not what Barack Obama’s Justice Department would do with the NDAA, but what a Rick Santorum or Mitt Romney Justice Department would do.”

When I consider that, I tremble for the republic.

Charles R. Church is an attorney practicing in Salisbury who for years has studied Guantanamo Bay detention, torture, habeas corpus and related issues.