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Some Thoughts on the New NDAA and the Smith-Amash Amendment

Benjamin Wittes
Wednesday, May 16, 2012, 10:31 AM
I have largely refrained from commenting on the machinations over this year's NDAA--in part because I'm still a little worn out from last year's NDAA, and in part because the issue seems to me a bit of tempest in a teapot.

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I have largely refrained from commenting on the machinations over this year's NDAA--in part because I'm still a little worn out from last year's NDAA, and in part because the issue seems to me a bit of tempest in a teapot. But with debate on the bill set to begin tonight, I thought I should set out my thoughts both on the bill's current language and on the proposed Smith-Amash amendment. I fully agree with Steve that the bill's current language (see Sec. 1033 on page 366) is completely inconsequential. Indeed, I would go a step further than Steve did and say that its very purpose is to be inconsequential. House Republicans were not prepared for the sagebrush rebellion that developed in the conservative world against the NDAA's detention provisions--and for the resulting pressure Republican members have come under from their constituents on this issue. This pressure has produced a strong desire on the part of some members to appear to be changing things. At the same time, Buck McKeon and many of his colleagues don't really want to change last year's NDAA, which was, please remember, rather less detention-happy than what they had originally proposed. The result is a bill consciously designed to appear to shift gears--and thereby calm conservatives down--yet actually change nothing at all. How do you do this? Reiterate a right that already exists:
Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81) shall be construed to deny the availability of the writ of habeas corpus in a court ordained or established by or under Article III of the Constitution for any person who is detained in the United States pursuant to the Authorization for Use of Military Force (Public 25 Law 107–40; 50 U.S.C. 1541 note).
I find this approach a little cowardly but, as a policy matter, pretty harmless--a little like Congress’s declaring that nothing in the NDAA shall be interpreted to deny that the earth is round. There's a lot of legislation I would like to see Congress consider vis a vis detention and habeas. Reiterating that habeas is, in fact, available for the null-set of domestic detainees--a point that has gone unquestioned for decades--is pretty low down on my list. At the same time, I don't have to keep angry constituents in check, and members of Congress do. So a provision that does no harm, well, does no harm. Enough said. This brings us to the amendment by HASC ranking member Adam Smith and Republican Justin Amash, which actually would affect substantive changes to the NDAA detention authority. To be precise, as Bobby has explained, it would make two changes--one of which is, in my judgment, unquestionably a good idea, and the other of which is a more complicated proposition. For reasons I will explain, I tend to agree with Trevor that the Smith-Amash amendment is, on balance, sensible policy--though I have a mild concern about its specific language. The easy part of the Smith-Amash amendment, in my view, is its repeal of Section 1022 of last year's NDAA--the so-called mandatory detention provision. As Bobby and I have repeatedly explained, there's nothing very mandatory about the final language of this provision, and the administration's interpretive guidance renders it something of a nullity in operational terms. That said, the provision remains offensive on a symbolic level, standing for the proposition that the default option for handling domestic Al Qaeda operatives is military detention and requiring high-level consultations in order to deviate from that default. While I do not believe the law, as interpreted by the administration, will cause on-the-ground operational problems, I do think this is a bad message for Congress to send. And repealing it would thus be a healthy exercise in civic hygiene. The harder question is the bill's other provision, which would preclude military detention "In the case of a covered person who is detained in the United States” and would require in such situations that “disposition under the law of war shall occur immediately upon the person coming into custody of the Federal Government and shall only mean the immediate transfer of the person for trial and proceedings by a court established under Article III of the Constitution of the United States or by an appropriate State court.” It also requires that “No person detained, captured, or arrested in the United States, or a territory or possession of the United States, may be transferred to the custody of the Armed Forces for detention” under the NDAA. The universe of people to whom this provision would apply is, as a preliminary matter, zero—at least for the foreseeable future. The Obama administration has said it means to use only the criminal justice system domestically, so the fact that the NDAA neither authorizes nor precludes domestic military detention does not mean such detention is likely under current law. I doubt very much that a Romney administration will be any keener than is the Obama administration to create new Padilla or Al Marri cases—that is, to indulge in the long-term military detention of someone captured domestically. So the issue is something of a hypothetical one—and I agree with Steve that is far less important than a raft of questions related to the detention rules for the hundreds of people we actually are detaining abroad. But domestic detention authority has special resonance, as the NDAA debate shows. So for what it’s worth, here’s what I think. I am not opposed to having a domestic detention statute. In fact, I proposed one in my book Law and the Long War, and I continue to think that a carefully drawn bill to deal with those very rare Padilla-like cases may be worthwhile. At the same time, I am cognizant of the fact that the tiny universe of such cases may not justify the significant legislative effort it would require to produce such law. And I do not like the idea of simply permitting law of war detention for domestic captures on the same terms as we permit it for overseas captures. So while I would prefer a statute requiring that any domestic non-criminal counterterrorism detentions be conducted according to specified procedures, the question we face has become more binary: Do we want raw military detention available domestically or do we not? As a strong defender of the propriety of military detention in the counterterrorism context, I would prefer—given that binary choice—to force all domestic detention cases into the criminal justice system. The even-theoretical availability of detention powers domestically gives rise to legitimacy problems for detention more broadly. As a practical matter, I can envision very few cases in which the executive would—under current law—test its power to detain an Al Qaeda persons domestically outside of the criminal justice system again; the behavior of both the late Bush administration and the Obama administration have demonstrated great reluctance on this score. And our intelligence and law enforcement forces are today far-better-positioned to handle the Padillas and Al Marris in the federal courts than they were a decade ago. The result is that the amendment may have zero practical impact—merely requiring the course that the government would pursue anyway. My only real concern about this amendment is that I think it might inadvertently preclude the closure of Guantanamo. As readers know, I personally don’t care whether Guantanamo stays or goes. But it’s worth noting that the bill, at least as drafted, would seem to turn any detainee brought from Guantanamo to some new detention facility in the United States into “a covered person who is detained in the United States.” It would thus require “the immediate transfer of the person for trial.” The perverse consequence of this would be to ensure that all detention of people captured abroad would take place abroad—thus burying once and for all any chance of Guantanamo’s closure. I doubt very much that’s what Rep. Smith means to do. If it’s not, he might tinker with his language slightly to make that clear.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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