Concerns Still Remain Over National Defense Act

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On December 21, 2011, Congress formally presented the National Defense Authorization Act, (“NDAA”) to President Obama’s desk. The bill is monolithic–spanning 565 pages in length–and primarily covers funding and support of the military. However, two sections of the bill have raised substantial concerns regarding the scope of executive authority to detain individuals indefinitely. Ironically, the Act was agreed to in both houses on December 15, the 220th anniversary of the passage of the Bill of Rights.

Introduced in the House in April, and approved by the Senate on December 15, the NDAA (H.R. 1540) contains a number of provisions that codify and explicitly grant the executive branch broader detention authority. Much of this language expands on earlier powers that were granted to the executive under the Authorization for Use of Military Force (“AUMF”), which was passed days after the September 11, 2001 attacks.{{1}} Under the AUMF, only members of the Taliban or Al Qaeda and “affiliated entities” are considered covered enemy combatants.{{2}} However, both the Bush and Obama administrations have interpreted the AUMF broadly, arguing that Congress implicitly (i.e., silently) granted the executive broad rights to detain and transfer individuals, including the right to indefinitely detain combatants.{{3}} In response to this ambiguity, Congress attempted to provide explicit guidance as part of the latest defense authorization bill.


Detainee Coverage and Military Tribunals

Once signed into law the NDAA will: 1) reaffirm the conflict with Al Qaeda; 2) place stronger conditions on the transfer or release of current Guantanamo detainees; and 3) require foreign nationals engaged in offenses against the United States to be tried by military commission.

The two sections of the bill that have raised the most scrutiny by critics cover the second and third points. The first, which governs the transfer or release of current and future Guantanamo detainees, grants explicit authority to the President

… to use all necessary and appropriate force pursuant to the [AUMF] … [which] includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.{{4}}

The act defines a “covered person” as “any person”:

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

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.{{5}}

The act also provides that “disposition under the law of war” may include “detention … without trial until the end of hostilities,” trial, or transfer to the detainee’s country of origin.{{6}}

Although earlier language in Section 1021 was written broadly to cover the possible indefinite detention of U.S. citizens, an amendment preserving the rights of U.S. citizens, lawful resident aliens, and others captured within the United States, was added in December.{{7}} It does not, however, extend protections to U.S. citizens or nationals arrested outside of the United States.{{8}}

The second aspect of the bill, Section 1022, requires that suspected Al-Qaeda terrorists or associates involved or participating in the “planning or carrying out an attack against the United States or its coalition partners” must be detained in military detention.{{9}} While language was amended to once again exempt U.S. citizens, the current incarnation of the bill does provide that detention of lawful resident aliens arguably may be permissible if it occurs abroad.{{10}} The law was also amended to provide that the President may seek a waiver of the military detention provisions in the interests of national security.{{11}}


Controversy Surrounding Bill

Initially, the Obama administration threatened to veto the bill, objecting to any provisions limiting executive authority to transfer detainees into the United States, and on the grounds that requiring military detention of terrorist subjects arrested on American soil were “inconsistent with the fundamental principle that our military does not patrol our streets.”{{12}} Congress, in turn amended the bill. In the current Senate-House compromise text, language limiting transfer authority powers was removed, as was the requirement of military detention of suspects arrested in the United States. Shortly thereafter, the Attorney General, Eric Holder, confirmed that President Obama would sign the bill, with caveats in the form of a presidential signing statement.{{13}}

Notwithstanding these amendments, many critics, including the American Civil Liberties Union, Human Rights Watch and commentators such as Glenn Greenwald have challenged that the bill remains overbroad and could potentially ensnare individuals based on the barest allegations of ties to terrorism. Additionally, both the ACLU and HRW argue that the NDAA represents the first time indefinite detention powers have been passed since the Internal Security Act of 1950.{{14}} Finally, the New York Times, in an editorial, raised concerns that since the NDAA codifies an executive declaration of authority, that “[t]he legislation could also give future presidents the authority to throw American citizens into prison for life without charges or a trial” based on the same reasoning.{{15}}

On December 31, President Obama signed the NDAA into law, and included a signing statement, expressing “serious reservations” over the legislation. “Moving forward, my administration will interpret and implement the provisions described below in a manner that best preserves the flexibility on which our safety depends and upholds the values on which this country was founded,” Obama said in the attached statement. He also clarified that the executive “[W]ill not authorize the indefinite military detention without trial of American citizens.”

Signing statements allow presidents to raise objections to legislation, and provide guidance on how the administration will enforce the law.


[[1]]Pub.L. 107-40, 115 Stat. 224, enacted September 18, 2001.[[1]]

[[2]]Under the AUMF, Congress authorized the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”[[2]]

[[3]]In a March 13, 2009 court briefing, the Obama administration claimed that “[t]he President has 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. (emphasis added)

See: In re Guantanamo Bay Detainee Litigation, Respondents’ Memorandum Regarding the Government’s Detention Authority Relative to Detainees Held at Guantanamo Bay, No. 08-0442, filed March 13, 2009 (D.D.C.) at: [[3]]

[[4]]H.R. 1540, Section 1021(a).[[4]]

[[5]]H.R. 1540, Section(b).[[5]]

[[6]]H.R. 1540, Section 1021(c).[[6]]

[[7]]H.R. 1540, as amended by Conf. Rept. H. Rept. 112-329, C.R. H8356-8726, Sec. 1021(e).  Available at:[[7]]

[[8]]Glenn Greenwald, “Three Myths about the Detention Bill,”, Dec. 16, 2011, at:[[8]]

[[9]]H.R. 1540, Section 1022(a).[[9]]

[[10]]H.R. 1540, Section 1022(b)(2) governing the applicability of the law to lawful resident aliens states that:

The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.[[10]]

[[11]]H.R. 1540, Sec. 1022(a)(4).[[11]]

[[12]]See  Exec. Office of the Pres., Statement of Administration Policy on H.R. 1540 (May 24, 2011), at:  (objecting in particular to section 1039 [barring transfer of detainees to the United States] as a “dangerous and unprecedented challenge to critical Executive branch authority to determine when and where to prosecute detainees, based on the facts and the circumstances of each case and our national security interests”).[[12]]

[[13]]Ryan J. Reilly, “Holder: Obama Will Issue Signing Statement With NDAA Detention Rules,” TPMMuckraker, Dec. 21, 2011 at:[[13]]

[[14]]Glenn Greenwald, “Three Myths about the Detention Bill,”, Dec. 16, 2011, at: See also: Ategah Khaki, “President Obama Should Listen to the American People–Not His Advisors–on the NDAA,” ACLU: Blog of Rights, Dec. 15, 2011 at:[[14]]

[[15]]“Politics Over Principle,” New York Times Editorial, Dec. 15, 2011 at:[[15]]

This post was written by:
- who has written 6 posts for Rock The Capital
Carey N. Lening, Esq. is a solo practitioner, writer, and lecturer who is devoted to legal issues relating to technology, security & privacy, social media, and intellectual property. She writes on areas ranging from business data privacy and security to the legislative changes affecting privacy, copyright, and trademark law. Ms. Lening received her Juris Doctorate from Pierce Law Center of Concord, NH. Prior to opening her practice, Ms. Lening was a journalist for BNA’s Patent, Trademark & Copyright Journal. - Email Carey Lening

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