The NDAA for 2012: What it means

Part 3 of 5

In Part 2 of this series, Church described the mistaken denunciations of the NDAA and President Obama and more moderate criticisms raising justifiable concerns. This segment will analyze Section 1021, the most critical aspect of the NDAA.

With this background, let us examine what the NDAA will do, and what real concerns there might be:

1. Section 1021—According to Lederman and Vladeck, the national security law experts mentioned last week (whose opinions are relied upon and sometimes quoted throughout this discussion of Section 1021), contrary to the predictions of many critics, this provision will not affect the unresolved question of whether the 2001 Authorization for Use of Military Force (AUMF) — the basis for detention authority recognized by the Supreme Court — would authorize a future president to place a U.S. citizen or resident who is apprehended in the United States into long-term military detention.

Such surely will not happen during President Obama’s tenure.  As the president said in his Signing Statement, “my administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation. (delete one of two periods)”

The section “affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority for the Armed Forces of the United States to detain covered persons...pending disposition under the law of war”—a disposition that may include trial of the person, or transferring him to his own nation or another country, or “[d]etention under the law of war without trial until the end of the hostilities authorized by the [AUMF].”

The aforementioned New York Times editorial calls this “an unneeded expansion of the authorization for the use of military force in Afghanistan,” which “make[s] indefinite detention and military trials a permanent part of American law.”  Happily, the section does neither.  Section 1021 expressly provides that “[n]othing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].”  Detention of enemy forces until the end of hostilities and military trials are already part of our law—the NDAA will not expand or prolong those authorities, let alone make them “permanent.”

Human rights lawyer Prof. David Cole, again in “A Bill of Rights for Some” at NYR Blog, raises an extremely important question about Section 1021.  “Thus far, the lower federal courts have upheld detention of al Qaeda and Taliban members,” but have not yet upheld the detention of “mere supporters.”  There is “much dispute about whether the laws of war [would] permit detention in those circumstances.”  He fears that “[u]nless this and future administrations construe these provisions as limited by the laws of war, they risk authorizing detention that the laws of war would not.”

Lederman and Vladeck agree that the relationship between the AUMF detention authority and the laws of war indeed has the potential to be a very important question.  In fact, it’s the one important substantive issue that has engendered an interpretative dispute among the judges on the D.C. Circuit, the court that decides all Guantanamo habeas cases.

In short, the Obama Administration has advanced the view that the AUMF detention authority should be construed as limited and informed by the laws of war—a reading that is supported by the rulings of most habeas judges.  But two judges on the D.C. Circuit have insisted that it would be “both inapposite and inadvisable” for courts to look to the laws of war when construing the Executive’s detention authority under the AUMF—and this has caused some confusion in recent habeas cases.

But Section 1021, although it does not “limit or expand” the president’s detention authority, is best read to clarify Congress’s understanding of how the existing AUMF authority should be construed — namely as limited and informed by the laws of war, as the Supreme Court’s governing opinion in Hamdi v. Rumsfeld  instructs and as the Executive branch has been arguing since 2009.

Section 1021 (c)(1) specifically refers to the military detention at issue as “[d]etention under the law of war without trial until the end of the hostilities authorized by the [AUMF].”  Section 1024(b) likewise refers to “long-term detention under the law of war pursuant to the [AUMF].”  And Section 1023(b)(1), discussing the President’s “periodic review process” for GTMO detainees, refers to the detainee’s “law of war detention.”  These statutory references should be sufficient to clarify Congress’s intent that the AUMF authority be construed with reference to that body of international law.

And they are bolstered by the NDAA’s legislative history, which is replete with references to military detention “under the law of war.”  Lederman and Vladeck therefore conclude: “Importantly, this construction should govern not only habeas cases going forward, but also the detention practices for future administrations.”  And President Obama’s Signing Statement reaffirmed that “[m]y Administration will interpret Section 1021 in a manner that ensures that any detention complies with the Constitution, the laws of war, and all other applicable law.”

The next column will examine Section 1021 further, and more aspects of what the NDAA will do.

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