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Thursday, April 19, 2012

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 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 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. 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.

Date of Report: April 10, 2012
Number of Pages: 41
Order Number: R42143
Price: $29.95

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