The NDAA: The Good, the Bad, and the Laws of War–Part I

By Marty Lederman and Steve Vladeck*

Editorial pages and blogs have been overrun in the past couple of weeks with analyses and speculation about the detainee provisions in the National Defense Authorization Act, which the President has just signed into law.  One of the major disputes concerns whether and how the NDAA might alter the status quo.  In this post, we’ll try to synthesize the competing views offered by David Cole and Raha Wala, who remain quite critical of the provisions because of the changes they possibly presage, with those of Bobby Chesney and Ben Wittes, who argue that the NDAA doesn’t do nearly as much as its critics claim to affect the Executive’s current authorities and practices.  As we explain, there’s considerable merit to both sets of arguments.  Perhaps the most important impact of the NDAA, however, may be with respect to a question that has received comparatively little attention–namely, the effect of the laws of war on the Executive’s military detention authority.  In a companion post, we take a closer look at that important question.

The Bad

David Cole is surely correct that Subtitle D (“Counterterrorism”) of the NDAA contains some very troubling provisions—especially sections 1026 and 1027, which continue the deeply unfortunate and counterproductive authorities in current law prohibiting the use of funds to build a facility in the U.S. to house GTMO detainees and to transfer any such detainees to the U.S. for any reason, including criminal trial; and section 1028, which continues the current statutory requirement that the Secretary of Defense must make onerous certifications regarding the receiving nation’s security measures before any GTMO detainee can be transferred to another country.  These provisions will continue to prevent the closure of the detention facility at Guantánamo, notwithstanding the President’s view, which we share, that “the prison at Guantánamo Bay undermines our national security, and our nation will be more secure the day when that prison is finally and responsibly closed.”

Moreover, and as David further notes, section 1022 purports to establish a presumption in favor of indefinite military detention, rather than criminal arrest and prosecution, for some future foreign al-Qaeda suspects.  In the President’s words, it is in this respect “ill-conceived and will do nothing to improve the security of the United States,” and “is unnecessary and has the potential to create uncertainty.”  Fortunately, amendments adopted late in the legislative process—particularly a change to the section 1022 waiver provision and the addition of a new provision that “[n]othing in [section 1022] 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”—will, we think, ensure that section 1022 is mostly hortatory, and will in practice allow the President to adhere to his commitments that “suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be”; that “our military does not patrol our streets or enforce our laws—nor should it”; and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As the President wrote today, he will construe section 1022 to afford “the full and unencumbered ability to waive any military custody requirement, including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.”  (We would also note that, under a plain-language reading, section 1022 would not even cover persons apprehended in the U.S. by the FBI or other law-enforcement officials:  That provision applies only to a person “who is captured in the course of hostilities authorized by the AUMF”—and in the case of a domestic FBI or other law-enforcement arrest, presumably neither the arresting entity nor the individual would be engaged in “hostilities authorized by the AUMF.”  On this reading—which which is fortified by the language clarifying that 1022 does not affect FBI authorities—the statute could only apply in the first instance to someone captured by a U.S. agency acting pursuant to the AUMF, which in effect would mean apprehensions by the armed forces overseas.)

Even so, enactment of section 1022, ambiguous and potentially toothless though it may be, is not without costs.  It might well convey to the world that the American legislature views military detention as an unremarkable, even preferred, option in some terrorism cases, thereby blurring the important message the President has been endeavoring to convey, through word and practice, that “[t]he strong preference of this Administration is to accomplish [incapacitation of persons who are threats to the American people] through prosecution.”  Moreover, as Raha Wala points out, the very existence of section 1022 might give a future Administration a slight measure of political cover if it decides to reverse President Obama’s policy and begin to detain in military custody persons such as another Abdulmutallab, who are captured in the United States.  All in all, then, section 1022 is an unwelcome provision, even if it will (as we hope) have little or no practical impact on executive practice.

The Good

It is also worth emphasizing, however, that the Obama Administration, civil liberties and human rights organizations, and some members of Congress worked tirelessly and quite effectively to improve the final bill dramatically from the versions the Senate and (especially) the House had earlier passed. Because of those efforts, Subtitle D of the NDAA is not nearly as problematic as many critics have suggested.  Indeed, the final bill actually contains a handful of provisions that improve upon current law, and one—which will be our focus here—that helps to resolve an important interpretive debate about whether the Executive’s detention authority under the 2001 Authorization for Use of Military Force (AUMF) should be informed and limited by the laws of war.

The New York Times editorial on the NDAA is, unfortunately, representative of many of the false alarms being sounded about the legislation.  The Times complains that the NDAA “ban[s] . . . spending any money for civilian trials for any accused terrorist,” “strip[s] the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists,” and “give[s] future presidents the authority to throw American citizens into prison for life without charges or a trial.”

If this were an accurate description of the final legislation, it would be even more extreme than the House-passed version, which the President’s senior advisers recommended that he veto.  But the bill the President just signed does none of these things.  (For a comprehensive run-down of what the bill includes, see this post from Bobby Chesney and Ben Wittes.)  Yes, the House-passed bill would have comprehensively prohibited expenditures for criminal trials of terrorism suspects; but the Administration successfully insisted that the conferees strip that provision from the final bill.  As for law enforcement authorities, the conferees added the provision quoted above, expressly confirming that “[n]othing in [section 1022] 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.”  Therefore the bill cannot possibly be read to “strip the F.B.I., federal prosecutors and federal courts of all or most of their power to arrest and prosecute terrorists.”

And, as to lifetime detention of U.S. persons, the bill by its very terms (thanks to an amendment introduced by Senator Feinstein) confirms what would have been the proper reading anyway—namely, that its detention authorization provision (section 1021) does not “affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”  For good measure, section 1022 also provides that its purported presumption of military detention “does not extend to citizens of the United States.”

The NDAA therefore leaves open, and does not affect, the unresolved questions raised in the Padilla and al-Marri cases–i.e., whether the AUMF authorizes the long-term military detention of U.S. citizens and lawful resident aliens who are apprehended in the United States.  Those questions will not be raised as long as President Obama is in office, since “it is the firm position of the Obama Administration that suspected terrorists arrested inside the United States will—in keeping with long-standing tradition—be processed through our Article III courts, as they should be,” and that “when it comes to U.S. citizens involved in terrorist-related activity, whether they are captured overseas or at home, we will prosecute them in our criminal justice system.”  As he reaffirmed today, “my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.”  And if the actions of future Presidents ever raised these questions anew, we do not think enactment of the NDAA should or will affect how the courts resolve them.  (One of us has already posted some of his views on this question here.)

What is more, those robust efforts to improve the legislation resulted in several provisions that will be distinct improvements vis-a-vis the status quo.  The otherwise deplorable section 1028, for instance, will now permit the Secretary of Defense to waive the onerous certification requirements for GTMO transfers overseas—including the requirement that there not have been any earlier cases of recidivism in the receiving country—if he certifies that “alternative actions will be taken” that will “substantially mitigate” the risk that the individual will engage in future terrorist activities.  We hope this new provision will provide Secretary Panetta the flexibility necessary to allow resumption of the Administration’s efforts to transfer the dozens of GTMO detainees who were slated for such transfer in the GTMO Task Force process but whose transfers appear to have been blocked by transfer restrictions in earlier spending bills.  In addition, new section 1024 provides that a military judge must preside in proceedings to determine whether an individual will be placed in long-term military detention overseas (i.e., at Parwan), and that the individual may be represented by military counsel in such proceedings.  Reasonable people may disagree as to whether these developments are ideal, but they unquestionably are improvements over the law as it currently stands.

Section 1021–Affirming AUMF Detention Authority

Which brings us to the central, “authority” provision of Subtitle D, section 1021, in which Congress “affirms that the authority of the President to use all necessary and appropriate force pursuant to the [September 2001 AUMF] includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war”—a disposition that may include trial of the person, or transferring him to his own nation or another country, or “[d]etention under the law of war without trial until the end of the hostilities authorized by the [AUMF].”

The Times editorial calls this “an unneeded expansion of the authorization for the use of military force in Afghanistan,” which “make[s] indefinite detention and military trials a permanent part of American law.”  It does neither.  Section 1021 expressly provides that “[n]othing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.”  Detention of enemy forces until the end of hostilities and military trials are already part of our law—the NDAA will not expand or prolong those authorities, let alone make them “permanent.”

To be sure, as David Cole notes, the law will “put[] Congress’s stamp” on a particular interpretation of the Executive’s military detention authority.  But that is hardly surprising:  The AUMF interpretation reflected in section 1021 is the one the Obama Administration has been pressing upon the habeas courts since March 2009, namely, that the executive has the authority—to the extent consistent with, and as informed by, the laws of war—to militarily detain 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.”

The only context in which this standard has played out thus far in the GTMO habeas proceedings is in determining whether particular detainees can be held in military detention on the basis that they are “part of” al-Qaeda or the Taliban, or an “associated” force, or co-belligerent, of al-Qaeda or the Taliban that is likewise “engaged in hostilities against the United States or its coalition partners.”  As applied to such persons, judges across the jurisprudential spectrum have approved the DOJ standard, following the lead of the Supreme Court’s explanation in Hamdi v. Rumsfeld that the AUMF should be construed in light of “longstanding law-of-war principles” to authorize the detention of enemy forces “for the duration of the particular conflict in which they were captured,” for the purpose of preventing them “from returning to the field of battle and taking up arms once again.”

It is therefore not surprising that the political branches would affirm this well-established authority.  To be sure, as Raha Wala reminds us, the Supreme Court itself has not yet approved this reading of the AUMF detention authority for persons apprehended outside Afghanistan.  In that respect, it is true that the NDAA will resolve a question that technically remained open.  We think it is exceedingly unlikely, however, that a majority of the current Supreme Court would hold that the AUMF does not authorize detention of, for example, a GTMO habeas petitioner who was part of al Qaeda or the Taliban and had been turned over to the U.S. by allies outside of Afghanistan.

Raha also points out that the Administration’s “forward-looking detention policy” might include detention criteria narrower than those of the March 13^th definition that section 1021 would affirm.  This is true, and the Obama Administration has done so:  The President has determined, for example, that the detainees at GTMO themselves should continue to be held only if it “is necessary to protect against a significant threat to the security of the United States.”  E.O. 13567, sec. 2 (Mar. 7, 2011).  Likewise, procedures the Department of Defense recently promulgated for the Bagram Theater Internment Facility at Parwan (see Harward Declaration and its Exhibits B and C) permit the military to intern persons there only if the person falls within the March 13^th definition and the internment is determined to be “necessary to mitigate the threat the detainee poses.”  The Executive’s choice to impose more robust constraints such as these on its detention practices, however, does not change the scope of the legal detention authority the AUMF confers.  And, more to the point, nothing in section 1021 will deter such salutary policy choices.

But what about “supporters” of al Qaeda and other enemy forces?  As David Cole notes, “[t]hus far, the lower federal courts have upheld detention of al-Qaeda or Taliban members,” but have not yet upheld the detention of “mere supporters”—which is true, because every case thus far has turned on whether the detainee was “part of” enemy forces.  Therefore, David writes, there is “much dispute about whether the laws of war [would] permit detention in those circumstances.”  David fears that “[u]nless this and future administrations construe these provisions as limited by the laws of war, they risk authorizing detention that the laws of war would not.”

David raises an extremely important question abut the effect of section 1021.  In our companion post, we will discuss the relationship between the AUMF detention authority and the laws of war, and what section 1021 of the NDAA has to say about that question.

[*DISCLOSURE:  Marty Lederman worked at the Department of Justice when some of the briefs discussed herein were filed, and Steve Vladeck represented amici in some of the cases discussed.  The views expressed herein, however, are only their own and do not necessarily reflect the views of their former employer and clients.]