The NDAA for 2012: What it means for us

Part 4 of 5

In Part 3 of this series, Church analyzed the critical element of the NDAA, Section 1021, which many critics see as disastrous. This week, he continues that analysis and examines other significant sections.

1. Section 1021 (continued) — As for Prof. David Cole’s worry over whether the National Defense Authorization Act (NDAA) would permit detention of “mere supporters” of al-Qaeda and other enemy forces in ways not consistent with the laws of war, Lederman and Vladeck “think it is fair to assume that Congress has now ratified [the Department of Justice’s] understanding that in construing the Authorization for Use of Military Force’s (AUMF) detention authority, it may be necessary to look to permissible detention practices that would be ‘appropriately analogous...in a traditional international armed conflict.’”

What kinds of “support” to al-Qaeda would justify military detention in light of “long-standing law-of-war principles”? The Department of Justice said in a 2009 brief that those who provide unwitting or insignificant support are not subject to AUMF detention authority. And there are likely significant detention limits with respect to persons who provide medical support to enemy forces while “permanently and exclusively engaged as a medic.”

On the other hand, perhaps substantial supporters of enemy forces who are apprehended while accompanying such forces can be detained on roughly the same terms as the forces themselves, just as they can be in an international conflict. And Professor Ryan Goodman suggested in “The Detention of Civilians in Armed Conflict” for the American Journal of International Law that perhaps the AUMF could be construed to permit the United States to detain, in an internment capacity, civilians whose support for al-Qaeda makes such detention “absolutely necessary,” or for “imperative reasons of security,” akin to the permissible detentions of protected civilians in international conflicts under articles 42 and 78 of the Fourth Geneva Convention, as was done in the Iraq war. But for the most part, the “contours” of the “substantial support” basis for detention would have to be developed by the Executive branch and by the habeas courts in discrete application to concrete facts in individual cases. If any such cases arise, they “may require the identification and analysis of various analogues from traditional international armed conflicts.”

Although there may be disagreement about how that approach cashes out in individual cases, “the larger point going forward is the central role that such law-of-war analysis should play...when the Executive and the courts construe what detention authority the AUMF confers upon the president.”

2. Section 1022 — As Benjamin Wittes and fellow national security law analyst (and Lawfare Blog co-founder) Professor Robert Chesney explained last Dec. 19, this section purports not merely to authorize but to require military custody for a subset of those detainable under Section 1021. It requires that the military hold a “covered person” pending disposition under the law of war if that person is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and is participating in an attack against the United States or its coalition partners.

The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. And it insists that: “Nothing in this section 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 with regard to a covered person, regardless of whether such covered person is held in military custody.”

3. Section 1024 — According to Wittes and Chesney (whose opinions will be relied upon and possibly quoted throughout this treatment of NDAA sections), this mandates the creation of new and quite generous procedures for determining the status of detainees held in military custody. Regardless of where the detainee is held, the procedures provide a hearing before a military judge who will make a status determination; the detainee shall be represented by military counsel if he so chooses. These procedures can be applied as a matter of discretion where habeas is available, as in Guantanamo. For Bagram and elsewhere where habeas is not available, these provisions “seem to require a significant enhancement of process for detainees slated for long-term detention.”

4. Sections 1026 and 1027 — These prevent the use of federal funds for building detention facilities in the United States, or transferring Guantanamo detainees to domestic facilities or releasing them into the United States, effectively continuing a Congressional policy of preventing more Article III criminal trials of Guantanamo detainees and preventing the construction of alternative facilities that would enable President Obama to fulfill his promise to close Guantanamo.

5. Section 1028 — This prevents overseas transfers of Guantanamo detainees absent a rigorous certification by the Secretary of Defense that they will not pose a danger. Wittes and Chesney note that such a requirement under existing law has effectively halted efforts to resettle certain Guantanamo detainees, but the new certification requirement seems to allow slightly more flexibility.

The next column will make an overall assessment of where the NDAA leaves us.

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