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While I agree that much of he public discussion of the NDAA provisions has been hyperbolic, I also think there’s much to be worried about in this bill and, therefore, I’m glad the debate has escaped beyond the confines of Washington’s national security law nerds. However, in reading the FAQ, I came away with the basic impression that the NDAA more or less codifies the status quo. Well, I wanted to work within the FAQ format to offer a slightly different perspective. Let’s start with the bill’s detention authority. Does the NDAA expand the government’s detention authority? Ben and Bobby say “Nope.” I say “Yup” (though I sincerely hope they are correct). What’s the basis for the difference in perspective? Well, Ben and Bobby do not choose as their baseline any federal statute, but instead the executive branch’s claimed authority to detain individuals under the 2001 AUMF. I’ll explain in a moment why choosing this baseline is incredibly problematic, but first it’s worth noting that even if it were appropriate to compare the NDAA to the Obama administration’s claimed detention authority, the March 2009 brief to which they cite is not necessarily a sound comparison point. Here’s why. The March 2009 brief was filed in the context of the Guantanamo habeas litigation, before the Obama administration had the opportunity to conduct a comprehensive detention policy review. It was a brief specifically designed to address the uniquely messy problem of how to deal with the Guantanamo detainees and it was certainly not designed to constitute the Obama administration’s considered view of what its forward-looking detention policy would be. Indeed, the brief specifically disclaimed that it was doing anything other than articulating the standard upon which Guantanamo detainees could be detained. From the brief: “[The government’s] position is limited to the authority upon which the Government is relying to detain the persons now being held at Guantanamo Bay. It is not, at this point, meant to define the contours of authority for military operations generally, or detention in other contexts. A forward-looking multi-agency effort is underway to develop a comprehensive detention policy with respect to individuals captured in connection with armed conflicts and counterterrorism operations, and the views of the Executive Branch may evolve as a result.” Although we can’t know for certain, we have reason to believe that as the government prepared a more considered view of it’s claimed detention authority, it was not necessarily prepared to stand by everything laid out in the March 2009 brief. As Charlie Savage reported in relation to the Bensayah case, the administration was not prepared to defend the AUMF-based detention of a Guantanamo detainee on mere grounds that he “supported” al Qaeda because there remained significant disagreement regarding whether such a basis for detention was consistent with international law. However, even if the standard laid out in the March 2009 brief were the considered view of the administration’s forward-looking detention policy, it does not follow that it is the appropriate baseline for comparison. The simple reason is that one might not agree with the administration’s view of its detention authority under the AUMF, as regulated by international law. Moreover, the consequences of codifying such a view into law could be much more impactful than putting a stamp of approval on the status quo. As Bobby and Ben point out, the administration’s view of detention authority has not been signed off on by the Supreme Court, and has received at best tentative support in the D.C. Circuit. Thus, the status quo ante was one in which, in the words of Justice Jackson’s concurring opinion in Youngstown, the President “can only rely upon his own independent powers.” Now, because the NDAA (unlike the 2001 AUMF) authorizes the detention of members and “substantial supporters” of not only al Qaeda but its “associated forces,” the President’s authority to indefinitely detain such individuals “is at its maximum,” to again quote from Justice Jackson’s concurring opinion in Youngstown. I also don’t think it’s obvious that the D.C. Circuit has approved a standard that is “broader” than what was codified in the NDAA. While it’s certainly possible that “material” support provides for broader detention authority than “substantial” support, it isn’t clear to me that this makes a difference in practice (though I hope it does). Importantly, at least the D.C. Circuit provided for a scienter requirement – that the individual “purposefully” provide support. The NDAA does not set forth any such requirement and although scienter requirements are typically implied in criminal statutes, that’s not necessarily the case with civil detention laws. I would hope that any future administration would follow the lead of the Obama administration and insist on such a requirement, but that’s far from certain. In summary, if the question is whether the NDAA goes further than any statute-based detention authority upheld by our nation’s highest court, I think the answer is undoubtedly yes. Similarly, if the question is whether the NDAA strengthens any future administration’s hand in detaining members of “associated forces” or supporters of al Qaeda and affiliated groups, I think one has to answer in the affirmative. Does the NDAA authorize the indefinite detention of citizens? Ben and Bobby’s take: “No, though it does not foreclose the possibility either.” My take: “Yes, though ultimately a court will decide whether detaining a citizen pursuant to the AUMF is lawful depending on the circumstances.” I actually don’t think I am too far away from Ben and Bobby here. Part of the problem I had with Ben and Bobby’s original analysis had to do with conflation of the detention authority’s application to U.S. citizens with the geographic scope of the detention authority. As Ben and Bobby very thoughtfully laid out in their recent paper on Guantanamo habeas jurisprudence, these are two distinct (though related) concepts. First, with respect to citizenship, I think it’s pretty clear as a general matter that Section 1021 is designed to reach U.S. citizens. First, as Ben and Bobby point out, the detention of a U.S. citizen pursuant to the AUMF has already been upheld in Hamdi. Second, judges read statutes as a whole when construing the meaning of specific provisions, and it’s telling that Section 1022 specifically exempts U.S. citizens from its detention requirements while Section 1021 does not. Third, an amendment carving out U.S. citizens from the detention authority failed on the Senate floor and was not included in the conference report, creating bad (or good, depending on your perspective) legislative history on this point. Fourth, although a Feinstein amendment preserving the status of existing law was included in the final bill, it only applied to domestic captures, as Bobby pointed out in this blog post. That brings me to the question of geographic scope of the detention authority, and whether the detention authority reaches into the United States. Here I would agree that it’s an open question, both generally and because of the Feinstein amendment. However, I certainly don’t think the NDAA helps in this respect from the perspective of those who hope the detention authority won’t be read to reach into the United States. Indeed, to the extent that the NDAA strengthens the President’s hands in detaining members and supporters of “associated forces” or anyone else not tied to 9/11 or the subsequent Afghan war (it does, as I previously explained), it also strengthens the President’s hands in justifying such detentions should these individuals happen to be picked up within the United States. While, as Steve Vladeck points out, the clear statement rule and other guidelines for statutory construction will inform the question of the detention authority’s geographic scope, it’s telling, and unfortunate in my opinion, that Section 1021 no longer limits detention authority to those “captured in the course of hostilities” (as it did in the original language that came out of the SASC mark-up). Incidentally, Section 1022 is limited to individuals “captured in the course of hostilities,” which could create a presumption that Section 1021 is not (though I hope it doesn’t). And it’s also worth noting that an amendment limiting Section 1022 to those captured “abroad” was rejected by the Senate and not included in the final bill. That’s relevant because Section 1022’s requirements are tied to the AUMF-based authority in Section 1021. In short, while the question of geographic scope remains an open one, public fears that this or a future President could subject someone apprehended within the United States to military detention are more than legitimate based on the bill’s legislative history, in my opinion. Does it mandate military detention of terrorist suspects? Ben and Bobby’s take: “Not really, though both supporters and critics seem quite sure that it does.” My take: “Very clearly under the expressed terms of the statute, though the President can waive the requirement or otherwise take actions to avoid mandatory military custody if he’s willing to take a political hit to do so.” I won’t go over the various requirements of this section of the bill, as I think Ben and Bobby admirably explain it in very clear and simple terms. What I will restate is the Section’s primary requirement and overall goal: Except [if the President waives the requirement in a submission to Congress], the Armed Forces of the United States shall hold a [foreign terrorism suspect] captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war. It’s certainly true that there are all kinds of ways that the Obama administration could have avoided shunting Umar Farouk Abdulmutallab (AKA the underwear bomber) or any other foreign terrorism suspect into military custody. But, as FBI Director Mueller stated to the Judiciary Committee, even with the revised requirements in the conference report, there is still likely to be confusion and uncertainly regarding under precisely what circumstances the requirement applies. That’s going to undermine our law enforcement’s counterterrorism efforts and generally make things confusing for the FBI agents on the ground, as Ryan J. Reilly points out. More broadly, Ben and Bobby hit the nail on the head when they say there will be “genuine political costs” associated with avoiding military custody in any case in which military custody would attach absent the waiver and requirements. (See the Warsame case for a trial balloon of what happens when a terrorism suspect is transferred from military to civilian custody.) This President may be willing to absorb those costs, but a future administration may not, and could even use this provision to claim that Congress supports the exclusive use of military detention for foreign terrorism suspects. That’s very unfortunate, and I think even with the revised waiver and requirements, this idea of mandatory military custody alone should have been enough for the President to veto the bill. Does it prevent the closure of the detention facility at Guantanamo Bay? I agree with Ben and Bobby that it does, at least for the 2012 Fiscal Year. That the President is yet again willing to sign these requirements into law seriously questions his commitment to close the offshore detention facility. The President needs to redouble efforts to clearly explain how the facility will be closed in the near term. Does it prevent civilian criminal trials of terrorism suspects? I generally agree with what Ben and Bobby say here (only civilian trials for detainees currently held at Guantanamo are blocked), though I think because of the mandatory military custody provision this bill goes further than any previously codified efforts to undermine civilian trials for terrorism suspects. Also, let’s not forget the new requirement, codified in Section 1029, that the Attorney General “consult” with the Secretary of Defense and the Director of National Intelligence before moving forward with a terrorism prosecution; more silliness and congressional meddling designed to undermine civilian trials. It’s true that worse outcomes – such as the Buchanan amendment, which would have required military commissions trials for all foreign terrorism suspects – were avoided. That’s a very good thing, and let’s hope that the Obama administration continues to exercise its preference for civilian trials for foreign terrorism suspects, despite whatever additional burdens were placed on this option. Does it repeal the Bill of Rights? I agree that it doesn’t. But again, pursuant to Justice Jackson’s concurrence in Youngstown, congressional authorization for actions that the President would otherwise have to undertake on his or her own could tip the constitutional balance. That’s very important to keep in mind. So if it significantly expands the government’s detention authority, authorizes the detention of citizens, mandates military custody of foreign terrorism suspects (unless the President is willing to take a political hit), and prevents the President from closing Guantanamo for the next fiscal year, why is the President prepared to sign it into law? Why did he back off his veto threat? Anyone’s guess is as good as mine, but I think the answer has to be that the President isn’t really willing to lead on these issues. I do think the engagement of the various agencies and departments at the highest levels shows that the President is at least prepared to fight against the most excessive congressional restrictions on executive authority. But the President has not personally and substantially engaged on these issues to fight for his policies since his speech at the National Archives in May of 2009. I hope we don’t see more counterproductive congressional meddling on these issues, but I fear that the President’s failure to veto will be seen as weakness and will invite more mischief. Is there anything in the NDAA about which human rights groups and civil libertarians ought to be pleased I agree that Section 1024 is a welcomed step in the right direction from a human rights perspective. Additional due process for detainees in Afghanistan is something we at Human Rights First have long called for. That said, much of the provision’s impact will derive from how the administration characterizes the subset of detainees considered “long-term” detainees, and what procedures accompany the proceeding in which the detainee and military lawyer/judge participate. Regarding the detention authority in Section 1021, I hope Ben and Bobby are correct that the language in that section means that international law governs the authority – we are certainly prepared to argue that this is the case.