The National Defense Authorization Act would allow 'the U.S. Military to arrest American citizens in their own back yard without charge or trial.
Lawmakers and the public have expressed concerns over provisions inserted into the annual National Defense Authorization Act (NDA)), a defense appropriations bill, which would mandate military interrogation and detention for any suspected member of Al Qaeda and authorize indefinite detention of terrorist suspects without trial. Critics expressed concern that these provisions would virtually eliminate the role of federal law enforcement (i.e., F.B.I., federal prosecutors, and federal courts) in dealing with terrorist suspects, and that the provisions would worded so broadly that they could be applied to Americans and legal residents of the United States, allowing U.S. citizens to be seized and held in indefinite military custody. An amendment to the NDAA proposed by Senator Mark Udall of Colorado would have stripped the detainee measures out of the NDAA, but that proposal was defeated in the Senate.Critics of the bill maintain that section 1021 is overly broad in its wording because it allows for the detention of 'covered persons pending disposition under the law of war' but does not preclude indefinite detention. As well, Section 1022 makes military custody mandatory for a subset of detainees, and although that section does include an exception for U.S. citizens and legal permanent residents, critics maintain that the exception does not prevent U.S. citizens from being detained by the military; it merely does not require the military to detain U.S. citizens.The original version of the NDAA allowed for the issuance of waivers granting exceptions to mandated military custody of Al Qaeda suspects if the secretary of defense, the attorney general, and the head of national intelligence all agreed. President Obama initially threatened to veto the NDAA, but then indicated he would agree to sign a revised version that allowed the president to issue such waivers on his own and no longer explicitly banned the use of civilian courts in prosecuting Al Qaeda suspects.President Obama signed the NDAA at the end of 2011, stating in his signing statement that he disagreed with the necessity of its detention provisions and asserting that his 'Administration will not authorize the indefinite military detention without trial of American citizens' because 'doing so would break with our most important traditions and values as a Nation,' promising that his 'Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law':The fact that I support this bill as a whole does not mean I agree with everything in it. In particular, I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists. Section 1021 affirms the executive branch's authority to detain persons covered by the 2001 Authorization for Use of Military Force (AUMF) (Public Law 107-40; 50 U.S.C. 1541 note). This section breaks no new ground and is unnecessary. Section 1022 seeks to require military custody for a narrow category of non-citizen detainees who are 'captured in the course of hostilities authorized by the Authorization for Use of Military Force.' This section is ill-conceived and will do nothing to improve the security of the United States. The executive branch already has the authority to detain in military custody those members of al-Qa'ida who are captured in the course of hostilities authorized by the AUMF, and as Commander in Chief I have directed the military to do so where appropriate. I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat. While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.
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