Elsea Legislative Attorney
Michael John Garcia Legislative Attorney
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 appropriations enactments in effect for FY2012).
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 2012 NDAA into law, President Obama stated that he would
“not authorize the indefinite military detention without trial of American
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.
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. Among other things, he declared that the mandatory military
detention provision would be implemented in a manner that would preserve a
maximum degree of flexibility, and that the Administration would not
“adhere to a rigid across-the-board requirement for military detention.”
In February 2012, President Obama issued a directive to implement this
policy, including by exercising waiver authority to prevent the mandatory
military detention provision’s application in a broad range of circumstances.
This report offers a brief background of the salient issues raised by the
detainee provisions of the FY2012 NDAA, provides a section-by-section
analysis, and discusses executive interpretation and implementation of the
act’s mandatory military detention provision.
Document available via e-mail as a pdf file or in paper form.
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