Summarizing the National Defense Authorization Act: Rendition, Detaining Americans, the Reality?

Maggie’s Notebook
December 26

The huge 1000-page National Defense Authorization Act of 2012 (NDAA) passed handily after being submitted late, with little time for Congress to read it. The bill funds all facets of the military. The bill was late being submitted. There was little time to read it. I remember hearing Senator Rand Paul say he would not sign it, even if he agreed with it, because he was not given the time to read it thoroughly. Senator Jim Inhofe says this is the third year in a row that the legislation has been submitted for vote long after the proper deadline for submission has passed, which this year was October 1st. To semi-quote New Jersey Governor Chris Christie, “what the hell are we paying” Congress for? The bill has been on Obama’s since December 15th. If he has signed it before leaving for Hawaii, I don’t see it reported, but I do see Holder announcing that Obama will add a Signing Statement (think “regulations”) to the legislation. See information about Signing Statements at the end of this article.

The following are some of the concerns about the NDAA 2012:


We are assured by both the U.S. House and the U.S. Senate that there is nothing in this bill that expands the governments power over what it already has. 

The House legislation affirmed this:

The committee supports the Executive Branch’s interpretation of the Authorization for Use of Military Force, as it was described in a March 13, 2009, filing before the U.S. District Court for the District of Columbia. While this affirmation is not intended to limit or alter the President’s existing authority pursuant to the Authorization for Use of Military Force, the Executive Branch’s March 13, 2009, interpretation remains consistent with the authorities provided by Congress.

On the Senate side, Senator Jim Inhofe’s website statement assures that language was put in the NDAA to prevent any special powers granted to anyone, that were not already law:

Terrorist Detainee Provision – The bill provides a statutory framework for military detention of terrorists.  The language in this bill protects Americans and the homeland from terrorists while upholding the Constitutional rights of Americans and legal resident aliens.  There is simply no provision included in this bill that would allow U.S. citizens to be arrested by the military in the United States.

To make this even more clear, Inhofe supported an amendment on the Senate floor that states “Nothing in this bill 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.”

Additionally, in order to address the concerns of the FBI, Inhofe supported language in conference that states nothing in this bill “shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.”

We are told that the bill defers to the guidance for terrorist detainees as set out in the Authorization of Use of Military Force (AUMF) 2001 and 2009. The AUMF requires: 

Congress affirms that—

(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;

(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 15 1541 note);

(3) the current armed conflict includes nations, organization, and persons who—

(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or

(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and

(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 3 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Benjamin Wittes at LawFare writes that the word “belligerents” in (4) above, “strongly implies a “belligerent” is a target.

FLASHBACK: Go back to April 2010 when Senator John McCain in his S. 3081 titled Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010. S. 3081, which did not become law, proposed this:


An individual, including a citizen of the United States, determined to be an unprivileged enemy belligerent under section 3(c)(2) in a manner which satisfies Article 5 of the Geneva ConventionRelative to the Treatment of Prisoners of War may be detained without criminal charges and without trial for the duration of hostilities against the United States or its coalition partners in which the individual has engaged, or which the individual has purposely and materially supported, consistent with the law of war and any authorization for the use of military force provided by Congress pertaining to such hostilities.

Does the NDAA allow for the detention of American citizens suspected of terrorism, and does it enable our government to hold such Americans indefinitely or until the “hostile” actions an American is suspected of supporting,  have ended?

The LawFare blog has issued a new FAQ and says this:

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 rather than a definite ‘no,’ we have a maybe. The Bush administration arrested Jose Padilla in Chicago. The Second Circuit Court of Appeals decided the AUMF did not give authority to arrest a U.S. citizen suspected of being a supporter of al-Qaeda. The Supreme Court insisted that the case go through the Fourth Circuit Court where Padilla was taken into custody. A district court judge came to the same conclusion of the Second Court of Appeals, but the Fourth Circuit Court of Appeals held that Padilla could be lawfully held, because it was “factually” assumed that he had been on the battlefield in Afghanistan, although he was arrested on American soil. Padilla went through the civilian courts, was convicted and is serving prison time.

However Wittes notes in the AUMF guidance, Nos. 3 and 4 uses the words “includes:” No. 3, the current armed conflict includes nations, organization, and persons who substantially supports al-Qaeda and the Taliban. No. 4 – includes the authority to detain belligerents. Wittes offers the possibility that those guilty of “mere support,” not “significant” support could fall under the AUMF guidelines. He makes it clear, however, that he thinks “mere support” will not be considered, but…

About the word “includes,” Wittes says:
While I don’t think it is necessary to read [Congressman] McKeon’s language as authorizing force against mere supporters, a reading that places a great deal of weight on the word “includes,” it is not a ridiculous reading either. So if the goal is really to enshrine, rather than expand, the administration’s current understanding of its authority, the language should probably be tightened to clarify two points: that “part of, or substantially supporting,” is the standard for detention, not targeting, and that “all necessary and appropriate force” is authorized against enemy groups and those nations that–in the language of the original AUMF–harbor, not merely support, them.

Does the NDAA give the President the right to transfer enemy combatants back to their country of origin for punishment (or whatever) – known as “rendition.” 

Under Subtitle D — Counterrorism SEC. 1021 (c)(4):

(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:

(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

Is the Military mandated to detain terrorists?

The LawFare Blog FAQ linked above says “not really,” then explains that there is a subset of offenders who are subject to “mandatory [military] detention.” The subset is limited to al-Qaeda “or its associated forces,” (but not the Taliban or its associated forces), and then only if the detainee is associated with a specific terrorist attack. The example given is UnderWear Bomber, Umar Farouk Abdulmutallab. He could have been sent home, but wisely was not. Can you imagine the outrage? Abdulmutallab entered a guilty plea in our civilian court system and is awaiting sentencing in a New York prison.

If an American citizen can be considered a belligerent, who makes that determination? What powers do the Department of Defense have in the determination?

The New American article linked below posits that Obama’s Signing Statement will answer this question, and that the likely arbiter will be the FBI.

Here are those Congressmen/women and Senators who voted ‘no’ for the legislation.

The House vote passed 283 – 136 on December 14, 2011. In the House voting nay: Amash, Bucshon, Burgess, Burton (IN), Campbell, Chaffetz, Coffman (CO), DesJarlais, Duncan (SC), Duncan (TN), Flake, Forbes, Garrett, Goodlatee, Gosar, Gowdy, Graves (GA), Griffith, Harris, Huelskamp, Huizenga (MI), Hurt, Johnson (IL), Jones, Labrador, Lummis, Mack, Mcclintock, Mulvaney, Pence, Posey, Ribble, Roe (TN), Rohrabacher, Rokita, Royce, Schweikert, Simpson, Stutzman, Tipton, Todd, Walberg, Walsh (IL), and Woodall.

In the House not voting: Bachmann, Coble, Diaz-Balart,  LaTourette, Paul, Pitts,  Myrick, Young (FL)

The legislation passed in the Senate 93-7 on December 1, 2011. Three Republicans voted nay: Lee, Paul, and Coburn.

New American on Signing Statements (read what NA believes Obama will change here):

A presidential signing statement is a pronouncement that the President appends to a bill he signs into law. Nowadays, this executive addendum sets forth the President’s understanding of the law and gives guidance to the myriad departments under the executive branch umbrella on how to carry out the requirements of the new legislation.
Signing statements change the laws, revoking parts of them or adding provisions to them, at the same time redefining the Constitution and nullifying its checks and balances. Using them, the President assumes all power — executive, legislative, and judicial — unto himself and does so in a manner that is beyond question, beyond debate, beyond vote, and thus beyond the reach of the American people. Constitutionally speaking, if a President does not like a piece of legislation, the only recourse allowed him is a veto. Modern Presidents, however, have two self-perpetuating habits that obviate the use of veto: engorging themselves with power not delegated to them by the Constitution and disregarding the Constitution altogether…
Presidential signing statements amount to “cherry-picking” the parts of a law that Presidents wish to follow or ignore. The uses that signing statements have been put to since they began to flourish in earnest during the Reagan administration show that no matter the “getting things done” tenor used to pronounce them by an ostensibly frustrated President, their clear intent is to subvert the law and slam the weighty wrecking ball of “executive discretion” into the paper barricades that divide the three provinces of power.

After days of research and an interest in detaining Americans for more than a year, I don’t know the answers to the above, and I don’t know any of the above are valid arguments for or against. We have only opinions, and an Attorney General we cannot trust.

I am looking for the day when all legislation not submitted in time for every Congressperson to read it, makes the legislation null and void without a vote. I count on those representing me in Washington, D.C. to clearly understand what they are voting on. I look forward to a Conservative House and Senate which will make Signing Statements illegal. I look forward to a Congress which will respect our Constitution, and Representatives and Senators who will get to a microphone each and every time either Chamber tries to abuse that power. We the People often have no way to know that our Founding documents are being bloodied and bruised by the vote of the person we send to the Hill.  It was not necessary to included the detention of Americans, or foreign terrorists, in this piece of legislation. We should fund our troops without any other considerations. I want accountability.

UPDATE 12-26-11 – Some Montana citizens have started a petition to recall Senators Max Bacus and Jonathan Tester due to their vote for the NDAA 2012.

See a significant news roundup at Grumpy Opinions, and many thanks for linking this story.

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