5-11-2012By Raha Wala
Law and Security
The annual National Defense Authorization Act (NDAA) is once again being considered by Congress for the fiscal year (FY) 2013. Last year’s bill, for the fiscal year 2012, contained provisions related to the detention of terrorism suspects. Here’s an FAQ on how the current version of the NDAA violates the rule of law.
Under the detention provisions in the defense authorization bill, who can be detained indefinitely by the military without charge or trial?
The FY 2012 NDAA permits the military to indefinitely detain without charge or trial individuals determined to be members or substantial supporters of al Qaeda, the Taliban, or associated forces. The law does not define “associated forces” or what it means to provide substantial support.
Are American citizens or other individuals apprehended within the United States subject to indefinite military detention under the FY 2012 NDAA?
American citizens can be detained under the FY2012 NDAA because the bill codifies into federal statute existing authorities, which allow the military to detain U.S. citizens. The law is less straightforward for individuals, including citizens, apprehended in the United States. Although an amendment was added making clear that the FY 2012 NDAA is not intended to “affect existing law or authorities” relating to the detention of U.S. citizens or others picked up on U.S. soil, existing law is not clear on this point. For example, the Bush administration held two individuals apprehended in the United States – José Padilla (a U.S. citizen) and Ali al-Marri (a legal resident) – in military custody for years under the legal authorities that are now codified in the FY 2012 NDAA. If this or a future administration were to use the military to detain an individual apprehended on U.S. soil, it would pose serious legal issues, which would be decided by a court. President Obama has stated that he will not place an American citizen in indefinite military detention.
Aren’t citizens afforded special rights under the Constitution that protect against the kind of indefinite military detention contemplated in the FY 2012 NDAA?
When it comes to fundamental liberty and due process guarantees, the Constitution affords protections to all individuals within the United States, irrespective of citizenship. These protections include the right to due process and equal protection under the law.
Does the FY 2012 NDAA suspend habeas corpus? Doesn’t habeas corpus ensure against indefinite detention without charge or trial?
In codifying the authority of the military to hold terror suspects without charge or trial, the FY 2012 NDAA did not suspend habeas corpus or purport to overturn any other constitutional rights. However, habeas corpus, though an incredibly important right, has not prevented the government from holding individuals indefinitely without charge or trial. Habeas corpus, in this context, means that for individuals in the United States, or at Guantanamo, the government only needs to prove to a federal judge that it’s more likely than not that the person in question is a “member” or “substantial supporter” of al Qaeda, the Taliban, or an “associated force”. It’s not clear what these vague terms mean, and in a habeas proceeding the government often presents classified information, the content of which is presumed by the judge to be accurate and reliable. Importantly, habeas corpus in this context does not guarantee a jury trial, at which the individual must be found guilty of crimes beyond a reasonable doubt, or ensure that the government only arrest people when it has probable cause.
Does the FY 2012 NDAA force the administration to place terror suspects into military custody?
In addition to codifying the military’s detention authority, the FY 2012 NDAA requires the military to take initial custody of a category of foreign terrorism suspects, absent a presidential waiver. Specifically, the law mandates military custody for foreign terror suspects determined to be 1) part of al Qaeda or an associated force, and 2) involved in a terror plot against the U.S. or its allies. The President issued a policy directive substantially limiting the instances in which mandatory military custody applies, though it leaves open the possibility that it could apply to foreign terrorism suspects arrested in the United States on terrorism charges.
Won’t holding terrorism suspects in military rather than civilian custody make us safer by denying suspects a right to a lawyer and other essential due process requirements?
No. The criminal justice system has produced large amounts of invaluable counterterrorism intelligence information precisely because it provides incentives for suspects to cooperate. Many criminal suspects apprehended cooperate with authorities, whether or not they are read Miranda rights. Intelligence gathered through the criminal justice process includes telephone numbers and email addresses used by al Qaeda and other terrorist groups, al Qaeda communications methods and security protocols, al Qaeda recruiting and financing methods, the location of al Qaeda training camps and safe houses, information on al Qaeda weapons programs, the identities of operatives involved in past attacks, and information about future plots to attack U.S. interests. Holding individuals in indefinite military detention with little to no prospect for release does not provide incentives for cooperation.
Does the FY 2012 NDAA ban civilian terrorism trials? Does it require that suspected terrorists be tried by military commission?
In general, terrorism suspects can be tried either in civilian courts or military commissions under the FY 2012 NDAA. However, the FY 2012 NDAA does block the transfer of Guantanamo detainees to the United States for prosecution in civilian courts. Even detainees subject to initial mandatory military custody can be tried in civilian courts. While the FY 2012 NDAA preserves the option of civilian terrorism trials in many cases, it also politicizes prosecutorial decisions. For example, a provision in the FY 2012 NDAA requires the Attorney General to consult with the Secretary of Defense and Director of National Intelligence before moving forward with certain terrorism-related prosecutions.
Does the FY 2012 NDAA prevent Guantanamo from being closed?
Yes, at least for the foreseeable future. The FY 2012 NDAA contains within it transfer restrictions that limit the Obama administration’s flexibility to transfer detainees out of Guantanamo. These restrictions are in effect until the end of the 2012 fiscal year (September 30, 2012). Despite these restrictions, the Obama administration can, and should, work to fulfill its pledge to close Guantanamo by transferring as many detainees as possible to foreign countries that will accept them.