The NDAA for 2012: what it means

Part 2 of 5

In his last column, Church described the uproar following Barack Obama’s signing of the bill for the National Defense Authorization Act, with its “Subtitle D — Counterterrorism.” President Obama lifted his veto threat only after some of the worst aspects of the bill had been eliminated. Nonetheless, legitimately troubling aspects remained.

The ACLU denounced the ultimate signing of the bill in near-apocalyptic terms. “President Obama’s action today is a blight on his legacy because he will forever be known as the president who signed indefinite detention without charge or trial into law,” bellowed its Executive Director, Anthony Romero, at aclu.org on Dec. 31.  “Any hope that the Obama administration would roll back the constitutional excesses of George Bush in the war on terror was extinguished today.”

Even the New York Times editorial board on Dec. 15 thundered, under the rubric Politics Over Principle:

“This week, [President Obama] is poised to sign into law terrible new measures that will make indefinite and military trials a permanent part of American law.”  The Times called the signing “a complete political cave-in, one that reinforces the impression of a fumbling presidency.”

The Times complained that the NDAA “ban[s]...spending any money for civilian trials for any accused terrorist ... strip[s] the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists ... and give[s] future presidents the authority to throw American citizens into prison for life without charges or trial.”  

Fortunately, as national security law experts Professors Martin Lederman and Stephen Vladeck wrote in “The NDAA: the Good, the Bad, and the Laws of War” at Lawfare Blog on Dec. 31, the bill signed by the president does none of those things.

The Obama administration successfully insisted that the prohibition on expenditures for criminal trials of terrorism suspects be dropped.  As for the law enforcement authorities, the conferees added a provision expressly confirming that “nothing in [the bill] shall be construed to affect the existing criminal enforcement and national security authorities of the [F.B.I.] or any other domestic law enforcement agency ...”  

As to the lifetime detention of U.S. persons, “the bill by its very terms...confirms what would have been the proper reading anyway—namely, that its detention authorization provision...does not ‘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.’”  For good measure, the relevant section “states that its purported presumption of military detention ‘does not extend to citizens of the United States.’”

Perhaps with tongue in cheek, well-known human rights advocate Scott Horton wrote more moderately at Harpers.org on Jan. 3: “Obama Signs the NDAA, World Does Not End (Yet).”  So the NDAA, for all its flaws, is not the disaster for human rights that some claim it to be.

With all those wildly disparate and often extravagant opinions flying around, sometimes from sources we have reason to respect, what are we mere mortals to conclude about the NDAA?  I intend in this series of columns to answer that question.  In doing so, I will rely primarily on a number of contributors to Lawfare Blog — like Lederman and Vladeck, whom I mention above — who are recognized experts in national security law.  I have followed their work for a good while, and value their opinions very highly.

Let’s look first at what Barack Obama said when he signed the measure into law.  His signing statement recognized problems even with the final bill, expressing his “serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists,” and lamented that “some in Congress continue to insist upon restricting the options available to our counterterrorism professionals and interfering with the very operations that have kept us safe.”  

However, provisions in earlier versions “that otherwise would have jeopardized the safety, security, and liberty of the American people” were revised.  “Moving forward, [the Obama Administration] will interpret and implement [certain described] provisions... in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded.”

The next column will examine precisely 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.