The NDAA for 2012: what it means for us

Charles R. Church has written before for The Lakeville Journal, on drone warfare and national security, but will now write a more regular column. Church conducts an appellate law and alternative dispute resolution practice in Salisbury with the Law Office of Charles R. Church LLC. He is a Senior Fellow at the Center for Policy and Research, Seton Hall Law School, Newark, N.J., where he consults on Guantanamo Bay and Abu Ghraib detention and related issues. He also consults on detention, torture, habeas corpus and related issues for Human Rights First, New York, N.Y., and Washington, D.C. His article “Sparks Fly Between the Supreme Court and the D.C. Circuit as Indefinite Guantanamo Detentions Continue,” appeared in the August/September 2011 issue of “Connecticut Lawyer.”

When President Barack Obama — despite his threat to veto earlier incarnations — signed the final bill for the National Defense Authorization Act for Fiscal Year 2012, Benjamin Wittes, the Brookings Fellow and well-known national security law analyst, wrote at the invaluable law blog (www.lawfareblog.com), which he co-founded:

“The volume of sheer, unadulterated nonsense zipping around the Internet about the NDAA boggles the mind. There was a time — only a few months ago — when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety.

The added attention is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the ‘death panel’ objections to the health-care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good....”

Most of us heard over recent months about the showdown that was looming as the 2012 version of the military spending authorization bill was coming together. At more than 1,000 pages, it does a great many things. Almost all the controversy about it deals with a single portion: “Subtitle D — Counterterrorism.” The subtitle contains a number of provisions related to military detention of terrorism suspects and the interaction between military detention and the operation of the criminal justice system, and President Obama was threatening to veto the measure.

Previous attempts by Congress to control such matters have not come to a good end. A provision in the Detainee Treatment Act of 2005 (DTA) sought to strip the courts of jurisdiction to hear petitions for habeas corpus filed by aliens detained at Guantanamo. Relying on this provision, the government moved to dismiss the habeas petition in Hamdan v. Rumsfeld, a case brought by a Yemeni national to challenge a conspiracy charge in a military commission. With Justice Stevens writing, the Supreme Court held that the jurisdiction-stripping provision of the DTA applied only to habeas petitions filed after its effective date and denied the motion. Further, the military commission convened to try Hamdan lacked power to proceed because its structure and procedures violate the Uniform Code of Military Justice and the Geneva Conventions.

Congress sought to cure the limitation imposed by Hamdan on the habeas jurisdiction-stripping of the DTA by enacting the Military Commissions Act of 2006 (MCA). The MCA made plain that courts would have no jurisdiction to entertain habeas petitions filed by Guantanamo detainees, whether pending or filed after its enactment. The Supreme Court responded by finding in Boumediene v. Bush that the MCA violated the Suspension Clause of the Constitution, which allows habeas suspension only “when in Cases of Rebellion or Invasion the public Safety may require it.” If the privilege of habeas corpus is to be denied to petitioners, Congress must act in accordance with the requirements of that Clause. This it failed to do.

President Obama lifted his NDAA veto threat only after some of the worst aspects of the bill had been eliminated. But as Prof. David Cole, a highly regarded human rights lawyer who teaches at Georgetown Law, wrote in “A Bill of Rights for Some” at NYR Blog on Dec. 16, Congress in the final bill created a presumption in favor of military detention for foreign al-Qaeda suspects, and imposes this presumption even for foreigners caught within the United States. While the president may waive that, the presumption is still wrong; given its inconsistency with basic principles of due process, indefinite military custody should be the last, not the first resort.

The law puts Congress’s stamp on a dubious and untested interpretation of military detention authority. And, most disturbingly, the law effectively prevents President Obama from closing Guantanamo. He can’t use any funds to build or modify a facility in the United States to house Guantanamo detainees, and he cannot transfer any Guantanamo detainee to the United States, even to face criminal trial. He cannot release any detainee to another country without meeting onerous certification requirements regarding that country’s security measures that probably cannot be met. The military, after careful review of all remaining Guantanamo detainees, has determined that more than half don’t need to be there.

This series on the 2012 NDAA  will continue with four more installments. Next, Church will discuss the reactions to the president’s signing the NDAA into law.