The National Defense Authorization Act for FY2012: Detainee Matters

Jennifer K. Elsea
Legislative Attorney

Michael John Garcia
Legislative Attorney

The National Defense Authorization Act for FY2012 (2012 NDAA, P.L. 112-81) contains a subtitle addressing issues related to detainees at the U.S. Naval Station at Guantanamo Bay, Cuba, and more broadly, the disposition of persons captured in the course of hostilities against Al Qaeda and associated forces. Much of the debate surrounding passage of the act centered on what appears to be an effort to confirm or, as some observers view it, expand the detention authority that Congress implicitly granted the President via the Authorization for Use of Military Force (AUMF, P.L. 107-40) in the aftermath of the terrorist attacks of September 11, 2001.

The 2012 NDAA, as enacted, largely adopts the detention provisions from the Senate bill, S. 1867, with several modified provisions from the House bill, H.R. 1540, along with a few modifications inserted at conference in an effort to avoid a presidential veto. It authorizes the detention of certain categories of persons and requires the military detention of a subset of them (subject to waiver by the President); regulates status determinations for persons held pursuant to the AUMF, regardless of location; regulates periodic review proceedings concerning the continued detention of Guantanamo detainees; and continues current funding restrictions that relate to Guantanamo detainee transfers to foreign countries. The act continues to bar military funds from being used to transfer detainees from Guantanamo into the United States for trial or other purposes, although it does not directly bar criminal trials for terrorism suspects (similar transfer restrictions are found in the Consolidated and Further Continuing Appropriations Act, 2012 (P.L. 112-55) and the Consolidated Appropriations Act, 2012 (P.L. 112-74)).

During floor debate on S. 1867, significant attention centered on the extent to which the bill and existing law permit the military detention of U.S. citizens believed to be enemy belligerents, especially if arrested within the United States. A single amendment was made to the detainee provisions (ultimately included in the final version of the act) to clarify that the bill’s affirmation of detention authority under the AUMF is not intended to affect any existing authorities relating to the detention of U.S. citizens or lawful resident aliens, or any other persons captured or arrested in the United States. When signing the FY2012 NDAA into law, President Obama stated that he would “not authorize the indefinite military detention without trial of American citizens.”

While Congress deliberated over the competing House and Senate bills, the White House expressed strong criticism of both bills’ detainee provisions, and threatened to veto any legislation “that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation.” A few modifications were made during conference to assuage some of the Administration’s concerns. Notably, the conferees added a statement to confirm that the provision mandating the military detention of certain categories of persons does not affect existing authorities of domestic law enforcement agencies, even with respect to persons held in military custody. President Obama ultimately lifted the veto threat and signed the 2012 NDAA into law, though he issued a statement criticizing many of the bill’s detainee provisions. He declared that his Administration would implement the mandatory military detention provision so as to preserve a maximum degree of flexibility, and that it would not “adhere to a rigid across-the-board requirement for military detention.” He also criticized the restrictions placed on Guantanamo detainee transfers, arguing that some applications might violate constitutional separation of powers principles.

This report offers a brief background of the salient issues raised by the detainee provisions of the FY2012 NDAA and provides a section-by-section analysis.


Date of Report: January 11, 2012
Number of Pages: 34
Order Number: R42123
Price: $29.95

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