The Internets have been all atwitter (SWIJDT?) about the National Defense Reauthorization Act with the wilder rumors arguing that it allows Obama to detain citizens and I’ve even read where some think it could authorize hit squads. I’ve been swamped with finals and papers to post on it, so instead I’ll link to this FAQ on the NDAA from the invaluable website for law and the Long War on Terrorism — Lawfare posted by Benjamin Wittes of the Brookings Institute and the Hoover Institute.
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 to it 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. The reader who wants answers to simple questions faces a confusing array of conflicting information.
Here then, as a public service, is an NDAA FAQ–a simple attempt to lay out the key questions people are asking about the NDAA and answer them as simply and neutrally as we can. Many of the answers here we have discussed in greater depth elsewhere on the blog. We will link to those posts for readers who want greater depth. This is an overview, a Guide for the Perplexed.
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.
The confusion associated with the NDAA’s treatment of the citizenship issue is understandable. First, the NDAA’s text relevant to this question changed quite a bit over time. Second, the relationship of the NDAA to pre-existing detention authority is difficult to follow if one does not keep up with this area regularly. So let’s begin with an overview of that pre-existing authority, before turning to the NDAA itself.
During the administration of George W. Bush, the government used its detention authority under the AUMF (described above) in two instances involving U.S. citizens. The first involved Yaser Hamdi, who was captured by Northern Alliance forces in Afghanistan in late 2001 and then later turned over to U.S. forces. He was at GTMO when the government determined he had a claim to US citizenship by virtue of having been born in Louisiana, and accordingly the government moved him to a military facility within the United States. A habeas proceeding followed, and ultimately went all the way to the Supreme Court. In 2004, the Court held that (i) the government’s authority to detain under the AUMF at least included armed members of the Taliban captured in Afghanistan (at least so long as fighting continued there), (ii) citizenship was no bar to detention in that circumstance, and (iii) citizenship did, however, entitle a detainee to a fair opportunity to contest the factual claims asserted by the government in support of detention.
Meanwhile, the government had arrested a suspected al Qaeda member–and U.S. citizen–named Jose Padilla, taking him into custody at O’Hare Airport in Chicago. He eventually ended up in military custody, and he too brought a habeas proceeding. To make a long story very short, his case first proceeded through the Second Circuit Court of Appeals, a panel of which concluded that detention authority under the AUMF did not apply to a citizen suspected of being an al Qaeda member and captured in the U.S. After the Supreme Court required the petition to be refiled and relitigated in the Fourth Circuit (because that is where Padilla actually was held), a district court judge took the same position, but on appeal a Fourth Circuit panel held that Padilla could lawfully be detained after all–though in so holding, the panel focused on the factual assumption that Padilla had, like Hamdi, been on the battlefield in Afghanistan previously. The case was then set to go before the Supreme Court, but before it could weigh in on the merits, Padilla was shifted into civilian custody for a criminal trial (he was convicted, and is now in prison).
The government has not asserted authority to detain a citizen under the AUMF since this time, so the question of citizen detention has remained unsettled ever since. Which brings us at last to the NDAA.
An earlier version of the NDAA in the Senate contained language that strongly implied, without quite saying it, that citizens were included within the general grant of detention authority discussed above (see Bobby’s contemporaneous assessment here). This generated much debate and criticism, and eventually a group of senators offered an amendment to state explicitly that citizens could not be detained under the NDAA’s restatement of detention authority. That amendment was rejected, and at that point, Senator Feinstein offered a compromise, fall-back amendment stating simply that nothing in the NDAA should be taken to address this issue one way or the other. The explicit idea was to preserve the unsettled status quo described above, leaving it to the courts to determine if detention authority extends to citizens should the government ever again attempt to assert it (see here and here). That is the position on which the NDAA has now settled (here).
A final note: As Steve points out here, the courts may in the end adopt a “clear statement” requirement in relation to the citizen detention question. That is, they may hold that Congress must explicitly grant such authority before a statute like the AUMF or the NDAA can be read to grant it. If that occurs, of course, that likely will be the end of the matter, particularly in light of the explicit effort in the NDAA to remain agnostic rather than take sides on the question.
There’s a lot more at the link. For all the legal field’s problems sometimes it does take an expert to break things down. Laws are so (some might say too) interconnected that taking a sentence out of context without tying together all of the tangents can lead to a lot of needless consternation. There are many reasons to distrust government — rounding us up in the name of the GWOT is not one of them. Some of you will add “yet” to that — that is your choice of course.