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Op-Ed

NDAA FAQ: A Guide for the Perplexed

Robert M. Chesney and Benjamin Wittes

The volume of sheer, unadulterated nonsense zipping around the internet about the National Defense Authorization Act (NDAA) boggles the mind. There was a time–only a few months ago–when the NDAA detention provisions were the obscure province of a small group of national security law nerds. Now, however, this bill has rocketed to international notoriety. The added attention to it is a good thing. It’s an important subject and warrants genuine debate and discussion. The trouble is that much of the discussion is the intellectual equivalent of the “death panel” objections to the health care bill. While certain journalists have done a good job covering the controversy, it’s much easier to get bad information than good. The reader who wants answers to simple questions faces a confusing array of conflicting information.

Here then, as a public service, is an NDAA FAQ–a simple attempt to
lay out the key questions people are asking about the NDAA and answer
them as simply and neutrally as we can. Many of the answers here we have
discussed in greater depth elsewhere on the blog. We will link to those
posts for readers who want greater depth. This is an overview, a Guide
for the Perplexed.

What exactly does the NDAA do?

The NDAA
is a spending authorization bill for the military for fiscal year 2012.
At more than 1,000 pages, it does a great many things. Almost all of
the controversy about it, however, deals with a single portion of the bill: “Subtitle D–Counterterrorism.” This subtitle contains a number of provisions related
to military detention of terrorism suspects and the interaction between
military detention and the operation of the criminal justice system.
Broadly speaking, the controversy relates entirely to the following
provisions:

  • Section 1021 codifies the Obama administration’s claimed authority
    to detain Al Qaeda and Taliban fighters and those from allied forces by
    “affirm[ing] that the authority of the President to use all necessary
    and appropriate force pursuant to the Authorization for Use of
    Military Force . . . includes the authority for the Armed Forces of the
    United States to detain covered persons . . . pending disposition under
    the law of war.” The bill defines “covered person” as either “A person
    who planned, authorized, committed, or aided the terrorist attacks that
    occurred on September 11, 2001, or harbored those responsible for those
    attacks” or “A person who was a part of or substantially supported
    al-Qaeda, the Taliban, or associated forces that are engaged in
    hostilities against the United States or its coalition partners,
    including any person who has committed a belligerent act or has
    directly supported such hostilities in aid of such enemy forces.” It
    defines “disposition under the law of war” to include (1) “Detention
    under the law of war without trial until the end of the hostilities,”
    (2) trial by military commission, (3) trial by “an alternative court
    or competent tribunal having lawful jurisdiction,” and (4) “Transfer to
    the custody or control of the person’s country of origin, any other
    foreign country, or any other foreign entity.”  Note that this third
    option–trial by an “alternative court”–encompasses a civilian criminal
    prosecution, thus making trial in federal court, legally speaking, into a
    “disposition under the law of war.”
  • Section 1022 purports not merely to authorize but to require
    military custody for a subset of those who are subject to detention
    under Section 1021. In particular, 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. It
    requires the administration to promulgate procedures to make sure its
    requirements do not interfere with basic law enforcement functions in
    counterterrorism cases. And it insists that “Nothing in this section
    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.”
  • Section 1023 requires minor adjustments to the President’s executive order setting up a review mechanism for detainees held at Guantanamo Bay.
  • Section 1024 mandates the creation of new–and quite
    generous–procedures for determining the status of detainees held in
    military custody. The provision requires that, regardless of where
    detainees are held, the procedures “shall provide . . . in the case of
    any unprivileged enemy belligerent who will be held in long-term
    detention under the law of war”: a hearing before a military judge, who
    will make his status determination, and representation by military
    counsel in that proceeding if the detainee so chooses. These procedures
    can be applied as a matter of discretion where habeas is available–if,
    for example, you imagine a new detainee brought to Guantanamo or at any
    hypothetical facility in the United States. At Bagram and elsewhere, by
    contrast, they would seem to require a significant enhancement
    of process for detainees slated for long-term detention.
  • Sections 1026 and 1027 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. It effectively continues 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 shutter Guantanamo.
  • Section 1028 prevents overseas transfers of Guantanamo detainees in
    the absence of a rigorous certification by the Secretary of Defense that
    they will not pose a danger. Such a requirement under current law has
    effectively ground to a halt efforts to resettle certain Guantanamo
    detainees. This version’s certification requirement allows slightly more
    flexibility, though it’s not clear whether that difference will be
    meaningful in practice.

Does the NDAA expand the government’s detention authority?

Nope. Under current law, the Obama administration claims the authority to detain:

persons that the President determines planned,
authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001, and persons who harbored those responsible for
those attacks. The President also has the authority to detain persons
who were part of, or substantially supported, Taliban or al-Qaida forces
or associated forces that are engaged in hostilities against the United
States or its coalition partners, including any person who has
committed a belligerent act, or has directly supported hostilities,
in aid of such enemy armed forces.

That claim of authority is based on the Authorization for Use of Military Force (“AUMF”)
passed by Congress shortly after the September 11 attacks, as informed
by the law of war.  The Bush Administration previously claimed very
similar authority, albeit invoking not just the AUMF but also the
inherent power of the President under Article II of the Constitution. In
any event, such claims have been subjected to judicial challenge
repeatedly, most commonly in the context of the Guantanamo detainee
habeas litigation. As we explain below, the courts have had a decidedly
mixed reaction in the pair of cases involving persons
captured within the United States, but as for persons captured abroad,
they have largely endorsed the government’s position.  The
D.C. Circuit, in fact, has tentatively adopted a definition of the
class detainable under the AUMF that is, if anything, broader than what
the administration seeks. While the administration–and now
Congress–would detain only on the basis of “substantial support,” the
D.C. Circuit has articulated a standard which would permit detention of
those who “purposefully and materially support” the enemy, even if not
substantially.

In light of all this, a law that writes the administration’s
successful litigating position into statute cannot reasonably be said to
expand the government’s detention authority. In fact, to the extent
that the new statutory language will preempt the arguably broader D.C.
Circuit definition, it may actually narrow it–if only very slightly.  So
let’s compare the language of the administration’s claimed
authority (quoted above) to the language of the NDAA:

(1) A person who planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, or harbored
those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda,
the Taliban, or associated forces that are engaged in hostilities
against the United States or its coalition partners, including any
person who has committed a belligerent act or has directly supported
such hostilities in aid of such enemy forces.

They are almost verbatim the same. The NDAA is really a codification
in statute of the existing authority the administration claims. It puts
Congress’s stamp of approval behind that claim for the first time, and
that’s no small thing. But it does not–notwithstanding the widespread
belief to the contrary–expand it. Nobody who is not subject to detention today will become so when the NDAA goes into effect.

The one area in which the NDAA could theoretically be said to expand
detention authority involves people held on the basis not of membership
in an enemy group but mere support for one. As noted above, the
government has long claimed this authority already, and the DC Circuit
has in fact endorsed a slightly broader formulation. But so far, anyway,
it has done so in dicta only–that is, not in any case where the fact
pattern actually depended on the resolution of that issue.  In theory,
then, the circuit (or the Supreme Court) might at some point have
concluded that support alone is insufficient to support a detention. 
The NDAA will ensure that this does not happen by making clear that
independent support does count as a ground for detention (or at least it
will do so as a matter of statutory interpretation; in theory, the door
would remain open to some form of constitutional challenge, though it
is difficult to see how that would work). So even as it marginally
narrows the detainable class, the NDAA also tends to ensure that courts
will not narrow the scope of that class further.

Does the NDAA authorize the indefinite detention of citizens?

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.

The confusion associated with the NDAA’s treatment of the citizenship
issue is understandable.  First, the NDAA’s text relevant to this
question changed quite a bit over time.  Second, the relationship of the
NDAA to pre-existing detention authority is difficult to follow if one
does not keep up with this area regularly.  So let’s begin with an
overview of that pre-existing authority, before turning to the NDAA
itself.

During the administration of George W. Bush, the government used its
detention authority under the AUMF (described above) in two instances
involving U.S. citizens.  The first involved Yaser Hamdi, who was
captured by Northern Alliance forces in Afghanistan in late 2001 and
then later turned over to U.S. forces.  He was at GTMO when the
government determined he had a claim to US citizenship by virtue of
having been born in Louisiana, and accordingly the government moved him
to a military facility within the United States.  A habeas proceeding
followed, and ultimately went all the way to the Supreme Court.  In
2004, the Court held that (i) the government’s authority to detain under
the AUMF at least included armed members of the Taliban captured in
Afghanistan (at least so long as fighting continued there), (ii)
citizenship was no bar to detention in that circumstance, and (iii)
citizenship did, however, entitle a detainee to a fair opportunity to
contest the factual claims asserted by the government in support of
detention.

Meanwhile, the government had arrested a suspected al Qaeda
member–and U.S. citizen–named Jose Padilla, taking him into custody at
O’Hare Airport in Chicago.  He eventually ended up in military custody,
and he too brought a habeas proceeding.  To make a long story very
short, his case first proceeded through the Second Circuit Court of
Appeals, a panel of which concluded that detention authority under the
AUMF did not apply to a citizen suspected of being an al Qaeda
member and captured in the U.S.  After the Supreme Court required the
petition to be refiled and relitigated in the Fourth Circuit (because
that is where Padilla actually was held), a district court judge took
the same position, but on appeal a Fourth Circuit panel held that
Padilla could lawfully be detained after all–though in so holding, the
panel focused on the factual assumption that Padilla had, like Hamdi,
been on the battlefield in Afghanistan previously.  The case was then
set to go before the Supreme Court, but before it could weigh in on the
merits, Padilla was shifted into civilian custody for a criminal trial
(he was convicted, and is now in prison).

Authors

The government has not asserted authority to detain a citizen under
the AUMF since this time, so the question of citizen detention has
remained unsettled ever since.  Which brings us at last to the NDAA.

An earlier version of the NDAA in the Senate contained language that
strongly implied, without quite saying it, that citizens were included
within the general grant of detention authority discussed above (see
Bobby’s contemporaneous assessment here). 
This generated much debate and criticism, and eventually a group of
senators offered an amendment to state explicitly that citizens could
not be detained under the NDAA’s restatement of detention authority. 
That amendment was rejected, and at that point, Senator Feinstein
offered a compromise, fall-back amendment stating simply that nothing in
the NDAA should be taken to address this issue one way or the other. 
The explicit idea was to preserve the unsettled status quo described
above, leaving it to the courts to determine if detention authority
extends to citizens should the government ever again attempt to assert
it (see here and here).  That is the position on which the NDAA has now settled (here).

A final note: As Steve points out here,
the courts may in the end adopt a “clear statement” requirement in
relation to the citizen detention question.  That is, they may hold that
Congress must explicitly grant such authority before a statute like the
AUMF or the NDAA can be read to grant it.  If that occurs, of course,
that likely will be the end of the matter, particularly in light of the
explicit effort in the NDAA to remain agnostic rather than take sides on
the question.

Does it mandate military detention of terrorist suspects?

Not really, though both supporters and critics seem quite sure that it does.

As we describe above, the NDAA clarifies that the government possesses detention authority as an option in
cases involving members and non-member supporters of al Qaeda, the
Taliban, and “associated forces.”  The NDAA then goes on to impose
certain requirements in cases involving a subset of that detainable
group.  The important questions are: Who is in this subset? When must
that categorization decision be made? What exactly is mandatory when a
person does turn out to be covered? And can the government still find a
way to use the civilian trial option instead? The answers to all of
these questions make the mandatory detention provision a lot less
mandatory than it used to be, and a lot less mandatory than people
think.

Who is covered? Not all detainable persons are subject to the
so-called “mandatory detention” provision.  Rather, it only applies to
the subset of detainable persons who are (i) members (not independent
supporters) of (ii) al Qaeda or its associated forces (not the Taliban
or its associated forces). Even then, it applies only in the subset of
circumstances in which the person is linked to a specific terrorist
attack.  The paradigm here is someone like Umar Farouk Abdulmutallab,
the AQAP member who tried to set off a bomb in his own underwear on a
flight inbound for Detroit.

When must a categorization decision be made? Once the government
determines that a captured person is in this special class, it is
mandatory to hold him or her in military custody pending the selection
of one of several disposition options enumerated in the statute. Of
course, prior to the point in time that the categorization
decision is made, this mandate does not kick in. Since we can readily
imagine circumstances in which it is, in fact, quite hard to say whether
a person was a member of al Qaeda or an associated force, or whether
the person’s linkage to some terrorist plot suffices to satisfy that
dimension of the covered person definition, it is easy to imagine that
in some instances it will take a very long time to make this threshold
determination and that in others, the determination won’t actually be
possible at all.  The NDAA, interestingly, does not impose any
particular deadline on this decision-making process, nor does it impose
conditions as to who must act as the ultimate decisionmaker, what
standard of proof that person must employ, and so forth.  Rather, the
NDAA calls for the White House to promulgate procedures to flesh out its
decision-making process in whatever way it sees fit.  So, there is room
for a fair amount of flexibility here.

What exactly is required for persons who are covered? Once the
government determines that a captured person is covered, it must hold
the person in military detention . . . but only pending disposition
“under the law of war.”  Now, at first blush, that just sounds like a
reference to more military detention, or perhaps also a trial by
military commission. But the NDAA, as we noted above, provides an
interesting definition of what counts as a disposition “under the law of
war.”  Yes, both long-term military detention and trial by military
commission are on the list, but so too are transfers to third-country
custody and, most notably, trial by an alternative tribunal–and as the
congressional debate made clear on many occassions, that last bit of
language includes the option of a civilian criminal trial.

Can the government avoid having to use military detention in such
cases?  Yes.  First, as explained above, the government does not have to
use military detention until it determines that the person
qualifies, which may take a great deal of time.  Second, if the
government is prepared to select the civilian prosecution option as its
prefered disposition “under the law of war,” it can in theory make that
determination simultaneously with its determination that the person
is covered to begin with, leaving no moment when the person must be
shifted over to military custody.  Third, even if the government for
some reason is unwilling to make such a contemporaneous determination,
the statute expressly provides a “waiver” mechanism that simply turns
that mandatory detention requirement off altogether, upon a written
determination by the president–or some lower-level designee–that a
waiver is in the interests of national security.

Of course, there are genuine political costs associated with pursuing
either of these options. The NDAA for better or worse sets military
detention as a quasi-default position for covered persons, and selecting
a different option through either of these methods will be a visible,
discrete act that can then become the basis for criticism.

Does it prevent the closure of the detention facility at Guantanamo Bay?

Yes. The NDAA does three things that make it impossible, at least
during fiscal year 2012, for President Obama to fulfill his promise to
close the detention facility at Guantanamo Bay. It forbids him to spend
any money readying an alternative site to house detainees in the United
States. It forbids transfers of detainees to the United States. And it
makes it difficult–though a little less difficult than it is under the
current spending restrictions–to transfer detainees to third countries.
To close Guantanamo, the administration would have to transfer a bunch
of detainees to other countries, and it would have to move a bunch of
other detainees to some alternative facility. So as long as these
restrictions exist in U.S. law, Guantanamo is going nowhere.

These restrictions, it is worth noting, are already in current law.
So while they are (in our opinion) bad ideas, they are by no means new
the NDAA.

Does it prevent civilian criminal trials of terrorism suspects?

Yes and no. The restriction on transfer of Guantanamo detainees to
the United States prevents civilian trials for anyone there. And earlier
versions of the bill would have made it either difficult or impossible
(depending on which version) to bring new captures to trial. But final
version of the bill does not prevent civilian criminal trial for new
captures, though it does authorize military detention as an alternative
and, in some cases, as a default option.

Does it repeal the Bill of Rights?

No federal statute can repeal the Bill of Rights. To the extent any
provision of the NDAA is found to conflict with any provision of the
Bill of Rights, it will not survive constitutional scrutiny.

So if it doesn’t significantly expand
the government’s detention authority, doesn’t authorize detention of
citizens, doesn’t really mandate the military detention of other
terrorist suspects, and doesn’t do more to prevent the closure of Gitmo
than does current law, what’s all the fuss about? Is it even important?

The final bill is, indeed, far less consequential than earlier
versions would have been. Much of the fuss is overblown. That said, the
bill has several important elements:

  • The codification of detention authority in statute is a significant
    development, not because it enables anything that Congress had
    previously forbidden but because it puts the legislature squarely behind
    a set of policies on which it had always retained a kind of strategic
    ambiguity–a tolerance for detention without a clear endorsement of it of
    the sort that would make members accountable. Congress has now given
    that endorsement, and that is no small thing.
  • The transfer restrictions will continue to have negative effects on
    administration management of detainee affairs, reducing flexibility and
    agility and compelling the continued detention of people the
    administration does not want to detain, in a status the administration
    does not wish to use, and at a facility it would prefer to vacate. That
    this is no change from current law–indeed, that the NDAA offers slightly
    more flexibility than does current law–does not make these restrictions any less troublesome.
  • The rump mandatory detention provision remains a bit of a wild card
    that could have mischievous effects in practice. Though it ends up
    requiring very little, it does impose–as we have described–a default
    option of military detention for certain categories of cases. And this
    option might prove politically difficult to jettison.

Is there anything in the NDAA about which human rights groups and civil libertarians ought to be pleased?

Yes, actually, there is.  Section 1024 of the bill, as we’ve
noted, requires that people subject to long-term military detention in
circumstances not already subject to habeas corpus review–think the
Detention Facility in Parwan, Afghanistan–henceforth shall have the
right to a military lawyer and a proceeding before a military judge in
order to contest the government’s factual basis for believing them to be
subject to detention.  This is an extraordinary and novel development. 
Detainees in Afghanistan currently have access to the Detainee Review
Board process, which as described in this article already
provide a relatively robust screening mechanism, particularly compared
to years past.  The DRB process does not include lawyers and judges,
however, and human rights advocacy groups have criticized them on this
ground.  Requiring lawyers and judges to staff out the screening process
is a pretty remarkable shift in the direction of accomodating those
concerns.

What’s more, while human rights groups have decried the codification
of detention authority, the codification does preclude certain
interpretations of the AUMF that human rights groups hated. For example,
while the difference between the D.C. Circuit’s embrace of the
“purposefully and materially support” standard and the administration’s
language seems pretty slight, the D.C. Circuit language did–which the
NDAA now jettisons–keep critics up
at night. And the D.C. Circuit famously flirted in one case with the
notion that international law does not inform or limit detention
authority under the AUMF–a position that the explicit references to the
“law of war” in the NDAA seems to reject.

In short, the bill is a mixed bag–almost no matter what vantage point one examines it from.

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