NDAA FAQ: A Guide for the Perplexed

[ProSense]

NDAA FAQ: A Guide for the Perplexed

by Benjamin Wittes

<...>

Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either. Congress ultimately included language in the NDAA expressly designed to leave this question untouched–that is, governed by pre-existing law, which as we explain below is unsettled on this question.

<...>

So if it doesn’t significantly expand the government’s detention authority, doesn’t authorize detention of citizens, doesn’t really mandate the military detention of other terrorist suspects, and doesn’t do more to prevent the closure of Gitmo than does current law, what’s all the fuss about? Is it even important?

The final bill is, indeed, far less consequential than earlier versions would have been. Much of the fuss is overblown. That said, the bill has several important elements:

• The codification of detention authority in statute is a significant development, not because it enables anything that Congress had previously forbidden but because it puts the legislature squarely behind a set of policies on which it had always retained a kind of strategic ambiguity–a tolerance for detention without a clear endorsement of it of the sort that would make members accountable. Congress has now given that endorsement, and that is no small thing.
  
  
• The transfer restrictions will continue to have negative effects on administration management of detainee affairs, reducing flexibility and agility and compelling the continued detention of people the administration does not want to detain, in a status the administration does not wish to use, and at a facility it would prefer to vacate. That this is no change from current law–indeed, that the NDAA offers slightly more flexibility than does current law–does not make these restrictions any less troublesome.
  
  
• The rump mandatory detention provision remains a bit of a wild card that could have mischievous effects in practice. Though it ends up requiring very little, it does impose–as we have described–a default option of military detention for certain categories of cases. And this option might prove politically difficult to jettison.

Is there anything in the NDAA about which human rights groups and civil libertarians ought to be pleased?

Yes, actually, there is. Section 1024 of the bill, as we’ve noted, requires that people subject to long-term military detention in circumstances not already subject to habeas corpus review–think the Detention Facility in Parwan, Afghanistan–henceforth shall have the right to a military lawyer and a proceeding before a military judge in order to contest the government’s factual basis for believing them to be subject to detention. This is an extraordinary and novel development. Detainees in Afghanistan currently have access to the Detainee Review Board process, which as described in this article already provide a relatively robust screening mechanism, particularly compared to years past. The DRB process does not include lawyers and judges, however, and human rights advocacy groups have criticized them on this ground. Requiring lawyers and judges to staff out the screening process is a pretty remarkable shift in the direction of accomodating those concerns.

- more -

http://www.lawfareblog.com/2011/12/ndaa-faq-a-guide-for-the-perplexed/

[phleshdef]

1. Not enough Greenwald style hysteria.

[great white snark]

7. You think Greenwald's continued mistaken conclusions are arrived at in good faith?

Pfffffft bwahahaha oh my hahahaha oh dear I busted a gut.

Sorry, just wanted to see if I could type that without breaking out into laughter.

[phleshdef]

10. Hehe, I'm not really sure if they are or not.

But I guess it was somewhat a rhetorical question.

[fascisthunter]

14. have proof he is mistaken and being dishonest intentionally?

I don't think you do...

[TheWraith]

2. Oh good--I'm NOT the only person on the planet who's actually READ the language.

It's not exactly a great bill, but a lot of people are using it as an excuse for hysterical trouser-crapping instead of factual discussion.

[dawg]

3. Before the revisions, it apparently would have *required* the President to detain U.S. citizens ...

without trial. With the revision, it is at his or her discretion.

Of course, I believe the practice to be illegal on its face. Nothing short of a constitutional amendment will convince me otherwise.

[TheWraith]

6. US citizens were exempted. Problem was, it would have required ANYONE be detained by the military.

Which is basically contrary to the entire successful strategy of the last ~2.5 years.

[dawg]

9. I dont' think it's accurate to say U.S. citizens are exempted.

It's my understanding that both the Bush and Obama Administrations have asserted the right to detain US citizens without trial under certain circumstances. From what I can parse from the weasel-words in the NDAA, nothing has changed.

The change in wording, as I read it, serves only to clarify that the President has the right *not* to detain such individuals if that is his choice.

[FarLeftFist]

11. The ONLY circumstances are if said individual is found to be working for Al-Qaeda or planning an

Attack on the U.S. or one of it's coalition forces.

[dawg]

15. You mean "accused" of doing those things, planning those things.

I can accuse someone of anything. So can you. So can the President.

I actually trust this President not to abuse this power, believe it or not. But Obama isn't going to be the last president we have. And no Adminstration should have this much power.

[ProSense]

12. No,

"It's my understanding that both the Bush and Obama Administrations have asserted the right to detain US citizens without trial under certain circumstances. From what I can parse from the weasel-words in the NDAA, nothing has changed. "

The administration never asserted that. The Statement of Policy issued before the changes were made is clear.

<...>

Detainee Matters: The Administration objects to and has serious legal and policy concerns about many of the detainee provisions in the bill. In their current form, some of these provisions disrupt the Executive branch's ability to enforce the law and impose unwise and unwarranted restrictions on the U.S. Government's ability to aggressively combat international terrorism; other provisions inject legal uncertainty and ambiguity that may only complicate the military's operations and detention practices.

Section 1031 attempts to expressly codify the detention authority that exists under the Authorization for Use of Military Force (Public Law 107-40) (the “AUMF”). The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces, and have enabled us to confront the full range of threats this country faces from those organizations and individuals. Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk. After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country. While the current language minimizes many of those risks, future legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people.

The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President's authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets. We have spent ten years since September 11, 2001, breaking down the walls between intelligence, military, and law enforcement professionals; Congress should not now rebuild those walls and unnecessarily make the job of preventing terrorist attacks more difficult. Specifically, the provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests. The waiver provision fails to address these concerns, particularly in time-sensitive operations in which law enforcement personnel have traditionally played the leading role. These problems are all the more acute because the section defines the category of individuals who would be subject to mandatory military custody by substituting new and untested legislative criteria for the criteria the Executive and Judicial branches are currently using for detention under the AUMF in both habeas litigation and military operations. Such confusion threatens our ability to act swiftly and decisively to capture, detain, and interrogate terrorism suspects, and could disrupt the collection of vital intelligence about threats to the American people.

Rather than fix the fundamental defects of section 1032 or remove it entirely, as the Administration and the chairs of several congressional committees with jurisdiction over these matters have advocated, the revised text merely directs the President to develop procedures to ensure the myriad problems that would result from such a requirement do not come to fruition. Requiring the President to devise such procedures concedes the substantial risks created by mandating military custody, without providing an adequate solution. As a result, it is likely that implementing such procedures would inject significant confusion into counterterrorism operations.

http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf

The administration wanted the provision removed.

[dawg]

13. The lengthy passage you cite doesn't say what you claim.

What it does say is this:

" The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces"

Which explicitly says that the administration feels the AUMF is sufficient to grant them detention authority.

The NDAA, on the other hand, would have *required* military detention under certain circumstances. That, they felt, would have tied their hands and forced military detention even in cases where the administration would rather handle things through the civilian authorities.


My position is that indefinite detention of US citizens, without due process, is illegal based on the 5th amendment. And no fig leaf, whether the AUMF, NDAA, Patriot Act, or anything short of a constitutional amendment, will change my mind about that.

[ProSense]

18. No

"" The authorities granted by the AUMF, including the detention authority, are essential to our ability to protect the American people from the threat posed by al-Qa'ida and its associated forces"

Which explicitly says that the administration feels the AUMF is sufficient to grant them detention authority. "

...it doesn't say what your implying, which is, from your previous comment, that the "Obama Administrations have asserted the right to detain US citizens without trial under certain circumstances"

The administration did not do that. In fact, the rest of the statement clearly states their opposition to that.

As for the AUMF, yes it include a detention authority, but the reason this debate is ongoing is because some Senators (Graham and others) claim that the existing law grants that authority. Others disagree.

It's the ambiguity that prompted the call for definitive language.

[dawg]

19. Show me a simple quote where the President says ...

"I don't believe we have the right to detain US citizens without due process" or something to that effect, and I'll believe you.

A page and a half of word salad legalese, that I interpret differently from you, is not convincing. The reason two rational people are able to interpret the legalese differently is because it was made that way - intentionally vague.

It seems clear to me, from what you posted, that the administration claims detention authority from the AUMF. Does that extend to US citizens? Show me where it does not.

[ProSense]

21. You know

"It seems clear to me, from what you posted, that the administration claims detention authority from the AUMF. Does that extend to US citizens? Show me where it does not."

...a lot of people have been claiming that the new bill authorizes indefinite detention of U.S. citizens; that the law gives the President the authority to arrest Americans on U.S. soil and hold them indefinitely without trial.

Now that it's clear that it's codifying existing law, specifically stating that nothing changes, suddenly the claim is that Obama has always asserted the right to indefinitely detain U.S. citizens in the manner above.

Here is the President's claim of authority

http://www.justice.gov/opa/documents/memo-re-det-auth.pdf

[dawg]

22. That link is to a 12 page document dealing with Gitmo.

I have never argued that the NDAA gives new authorization to detain US citizens indefinitely. That was someone else.

I believe that the Bush Administration, and now the Obama Administration too, claimed the right to do that based on existing law and precedent. The NDAA is a non-event, except that it is one more fig leaf that this and future adminstrations can use to justify this blatantly unconstitutional practice.

The reason you didn't respond with a simple quote from the President is probably that there hasn't been one. Because I believe he thinks his administration has this right. If so, I disagree with him.

It would be a very simple matter for the President to put this issue to rest.

[bigtree]

4. What do you think of Lawfare? What do you know about them?

I'm impressed by the detail, basically in agreement with the content. Wondering who I'm reading tho . . .

[saras]

5. What I'm reading here makes the bill look VILE, UTTERLY INAPPROPRIATE, and typical for Bush

Detention is clearly and unequivocally illegal under international law. A mediocre law would have closed the loophole, a good one would have required prosecutions for Bush-era violations.

Anything that helps dismantle and outlaw the current system in favor of respecting international law would be a vast improvement. This bill serves to strengthen current "there's no law stopping us, so we can do what we want" attitudes. A good law would allow nothing except for what was explicitly permitted.

They're still requiring the defense to use military lawyers working for the prosecution instead of neutral ones working for the defendant.

Comparing to the Reagan/Bush era as "years past" is disingenuous to say the least. Why not compare to the situation of NOT BREAKING ANY INTERNATIONAL LAW OR TREATY?

The sheer naivete of Lawfare suggesting the purpose of these laws is to "protect the nation" pretty much places them in the radical right fringe. NO ACKNOWLEDGEMENT WHATSOEVER of Bush's illegal reign, and a general attitude that everything the Bush administration set in place was normal, constitutional, acceptably written law that only existed for the overt stated purposes. That puts them pretty far out there in la-la-land.

[JDPriestly]

8. Problem is that by signing this law, Obama will be ratifying

the already existing vague, uncertain, bad law.

The Bush/Cheney cabal left a time bomb ready to blow up under some future president who lacks the calm and understanding of a guy like Obama.

The concept of the prison at Guantanamo is bad for our country. The Patriot Act is in many respects also badly written law however well intentioned it may or may not have been.

The fundamental question is just what is terrorism? Who is a terrorist? Who is not?

Is terrorism sort of like art? Something the president and the military know when they see it? Is the definition of terrorism to be determined by the eye of the beholder?

Is it a separate, specific crime, or is it really a crime or crimes already prohibited in our law? Is a street gang member who wants to harm a county prosecutor (elected to his office and therefore political) a terrorist? If not, why not?

Giving a president and the military and intelligence apparatus the authority to decide who is or is not a terrorist is no less dangerous just because it is arguably existing law. And unlimited detention for people arrested for vaguely defined conduct?

As for the right to counsel, will those who are accused of terrorism also have the right to confidentiality in their communications with their counsel? Will they have the right to confront witnesses against them? Will they have the right to know all the evidence against them?

This new law further calcifies the confusion in current law on this topic. That is tragic. In signing it, Obama passes up an opportunity to insist on certainty with regard to these issues which are very important to our nation.

[Octafish]

16. So whatever's in the USA PATRIOT Act goes?

That's the unnamed pre-existing law in all this. And not even our elected representatives can tell us what that is.

Ask Sen. Udall and Sen. Wyden:

http://crooksandliars.com/susie-madrak/despite-attempts-wyden-and-udall-secr

They want to, but they can't.

[JoePhilly]

17. Wow, a sober analysis!!!

Thanks.

[fascisthunter]

20. Sorry, you can put lipstick on a pig all you want

detaining anyone without a fair trial is unconstitutional and antithetical to freedom itself... and this vaguely written bill is vague enough to be misinterpreted for abuse of power.