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 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. It also addresses detainee provisions in the FY2013 national defense authorization bills, H.R. 4310 and S. 3254.


Date of Report: December 11, 2012
Number of Pages: 44
Order Number: R42143
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Women in Combat: Issues for Congress

David F. Burrelli
Specialist in Military Manpower Policy

Over the years, more than 283,000 female servicemembers have been deployed worldwide. In approximately 10 years of combat operations in Iraq and Afghanistan, over 800 women have been wounded and over 130 have died. According to the Department of Defense (DOD), as of February 29, 2012, over 20,000 female members have served or are serving Afghanistan and Iraq. (U.S. forces were out of Iraq as of Dec. 2011.) On numerous occasions women have been recognized for their heroism, two earning Silver Star medals. This has resulted in a renewed interest in Congress, the Administration, and beyond in reviewing and possibly refining or redefining the role of women in the military. The expansion of roles for women in the armed forces has evolved over decades. Women are not precluded from serving in any military unit by law today. (Past laws that precluded women from serving on board military aircraft and ships assigned combat missions were repealed in the early 1990s.) DOD policy restricting women from serving in ground combat units was most recently modified in 1994. Under this policy, women may not be assigned to units, below the brigade level, whose primary mission is to engage in direct combat on the ground. Primarily, this means that women are barred from infantry, artillery, armor, combat engineers, and special operations units of battalion size or smaller. Since there are no laws precluding such service, changes made in assigning women are only controlled under current policies which may be modified by the Administration and DOD.

In 2006, Congress enacted language prohibiting any change in existing policies without the Secretary of Defense first notifying Congress of such changes followed by a waiting period. In 2010, the Navy notified Congress that it was modifying its policy to allow women to serve as permanent crew members aboard submarines. The Navy has been in the process of assigning women to submarines; on December 5, 2012, it was reported that three female sailors were assigned to the USS Maine (SSBN 741) and USS Wyoming (SSBN 742), becoming the first female officers to qualify for submarine duty.

Recent changes in Army doctrine have called into question the ground exclusion policy, or at least, the services’ adherence to it. This is the result particularly from the policy of collocating support units (to which women are assigned) with combat units, along with adapting to the unusual (nonlinear) warfare tactics encountered in Iraq and Afghanistan, and the utilization of women in what some view as new nontraditional roles in Iraq and Afghanistan (for example, the “Lioness” program, which employed women to search Muslim women, and the emerging allfemale Cultural Support Teams).

The FY2009 Duncan Hunter National Defense Authorization Act contained language establishing the Military Leadership Diversity Commission. Among its duties, the Commission was to conduct a study and report on the “establishment and maintenance of fair promotion and command opportunities for ethnic- and gender-specific members of the Armed Forces at the O-5 (Lieutenant Colonel for Army, Marine Corps and Air Force, and Commander for Navy and Coast Guard) grade level and above.” Among its recommendations, the Commission stated that DOD should take deliberate steps to open additional career fields and units involved in direct ground combat. Such a move would essentially limit or repeal, in its entirety, the 1994 DOD policy regarding women serving in combat units. In February 2012, DOD announced modifications to this policy. Women’s right supporters contend that the exclusionary policy prevents women from gaining leadership positions and view expanding the roles of women as a matter of civil rights. Critics view such changes as potentially damaging to military readiness.


Date of Report: December 13, 2012
Number of Pages: 15
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Defense Contracting: A Compendium

This Compendium includes a wealth of reports on defense contracting and acquisition including topics such as competition in federal contracting; the Government Accountability Office (GAO) bid-protest process; contracting programs for minority-owned and other small businesses; the Berry Amendment requiring defense procurement to come from domestic sources; the Buy America Act; the specialty metal clause of the Defense Federal Acquisition Regulation Supplement (DFARS); Department of Defense food and military uniform procurement; defense surplus equipment disposal; and more.

The Department of Defense (DOD) has fielded a technologically advanced and superior military force and is supplied by a sophisticated acquisition system. This acquisition system is comprised of the management policy and processes that guide all DOD acquisition programs. However, at the same time, DOD has experienced significant problems managing the costs, schedule, and performance of this acquisition system, despite continued efforts to reform defense acquisition policies, personnel, and processes. In recent years, Congress has expressed increasing concerns with the management of the DOD acquisition system. Congressional concerns include the failure of DOD to develop effective acquisition strategies to field weapons systems and effectively provide oversight and accountability for service contracts and contractors.

Weapon acquisition programs such as the Future Combat System and the U.S. Coast Guard Deepwater Program have raised concerns in Congress because they have been managed by private-sector lead system integrators (LSIs), instead of being managed by DOD personnel. DOD has conceded in the past that the government has lacked the organic capability to manage these programs, and is now taking steps to transfer the role of the LSI to performance by defense acquisition workforce personnel.

Some observers, for example, point to an increased use of private security contractors to perform functions traditionally considered inherently governmental, and question whether using contractors to perform such functions reduces incentives to build governmental capacity to carry out these functions. Despite congressional efforts to expand court-martial jurisdiction and jurisdiction under the Military Extraterritorial Jurisdiction Act (MEJA), some contractors may still remain outside the jurisdiction of U.S. courts, both civil or military, for improper conduct in connection with U.S. counterinsurgency operations overseas.


Date of Report: August 7, 2012
Number of Pages: 192
Order Number: C-12011
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Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings

Jennifer K. Elsea
Legislative Attorney

Michael John Garcia
Legislative Attorney

As part of the conflict with Al Qaeda and the Taliban, the United States has captured and detained numerous persons believed to have been part of or associated with enemy forces. Over the years, federal courts have considered a multitude of petitions by or on behalf of suspected belligerents challenging aspects of U.S. detention policy. Although the Supreme Court has issued definitive rulings concerning several legal issues raised in the conflict with Al Qaeda and the Taliban, many others remain unresolved, with some the subject of ongoing litigation.

This report discusses major judicial opinions concerning suspected enemy belligerents detained in the conflict with Al Qaeda and the Taliban. The report addresses all Supreme Court decisions concerning enemy combatants. It also discusses notable circuit court opinions addressing issues of ongoing relevance. In particular, it summarizes notable decisions which have (1) addressed whether the Executive may lawfully detain only persons who are “part of” Al Qaeda, the Taliban, and affiliated groups, or also those who provide support to such entities in their hostilities against the United States and its allies; (2) adopted a functional approach for assessing whether a person is “part of” Al Qaeda; (3) decided that a preponderance of evidence standard is appropriate for detainee habeas cases, but suggested that a lower standard might be constitutionally permissible, and instructed courts to assess the cumulative weight of evidence rather than each piece of evidence in isolation; (4) determined that Guantanamo detainees have a limited right to challenge their proposed transfer to foreign custody, but denied courts the authority to order detainees released into the United States; and (5) held that the constitutional writ of habeas does not presently extend to noncitizen detainees held at U.S.-operated facilities in Afghanistan. Finally, the report discusses a few criminal cases involving persons who were either involved in the 9/11 attacks (Zacarias Moussaoui) or were captured abroad by U.S. forces or allies during operations against Al Qaeda, the Taliban, and associated entities (John Walker Lindh and Ahmed Ghailani).

For over a decade, the primary legal authority governing the detention of enemy belligerents in the conflict with Al Qaeda was the 2001 Authorization for Use of Military Force (“AUMF,” P.L. 107-40. In December 2011, Congress passed the National Defense Authorization Act for FY2012 (“2012 NDAA,” P.L. 112-81), which contains a provision that is largely intended to codify the current understanding of the detention authority conferred by the AUMF, as has been interpreted and applied by the Executive and the D.C. Circuit. The full implications of the 2012 NDAA upon wartime detention jurisprudence remain to be seen. In any event, the act does not address many of the legal issues involving wartime detention that have not been squarely resolved by the Supreme Court. Among other things, these unresolved issues include the precise scope of the Executive’s wartime detention authority, including the circumstances in which U.S. citizens may be detained; the degree to which noncitizens (or in one case, U.S. citizens) held abroad are entitled to protections under the Constitution; the authority of federal habeas courts to compel the release into the United States of detainees determined to be unlawfully held; and the ability of detainees to receive advance notice and to challenge their proposed transfer to foreign custody.

Several rulings addressed in this report are discussed in greater detail in other CRS products, including CRS Report RL33180, Enemy Combatant Detainees: Habeas Corpus Challenges in Federal Court, by Jennifer K. Elsea and Michael John Garcia; CRS Report RL34536, Boumediene v. Bush: Guantanamo Detainees’ Right to Habeas Corpus, by Michael John Garcia; CRS Report RS21884, The Supreme Court 2003 Term: Summary and Analysis of Opinions Related to Detainees in the War on Terrorism, by Jennifer K. Elsea; and CRS Report R42337, Detention of U.S. Persons as Enemy Belligerents, by Jennifer K. Elsea.


Date of Report: December 11, 2012
Number of Pages: 49
Order Number: R41156
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Navy Ohio Replacement (SSBN[X]) Ballistic Missile Submarine Program: Background and Issues for Congress

Ronald O'Rourke
Specialist in Naval Affairs

The Navy’s proposed FY2013 budget requests $564.9 million for continued research and development work on the Ohio replacement program (ORP), a program to design and build a new class of 12 ballistic missile submarines (SSBNs) to replace the Navy’s current force of 14 Ohioclass SSBNs. The Ohio replacement program is also known as the SSBN(X) program.

Under the Navy’s FY2012 budget, the first Ohio replacement boat was scheduled to be procured in FY2019, and Ohio replacement boats were to enter service on a schedule that would maintain the Navy’s SSBN force at 12 boats. The Navy’s proposed FY2013 budget defers the procurement of the first Ohio replacement boat by two years, to FY2021. As a result of this deferment, the Navy’s SSBN force will drop to 11 or 10 boats for the period FY2029-FY2041.

The Navy in 2011 estimated the average procurement cost of boats 2 through 12 in the Ohio replacement program at $5.6 billion each in FY2010 dollars, and is working to reduce that figure to a target of $4.9 billion each in FY2010 dollars. Even with this cost-reduction effort, observers are concerned about the impact the Ohio replacement program will have on the Navy’s ability to procure other types of ships at desired rates in the 2020s and early 2030s.

Potential oversight issues for Congress for the Ohio replacement program include the following:

• the reasons for deferring the start of SSBN(X) procurement by two years, to FY2021, the cost and operational impact of this decision, and whether it would be feasible and cost effective to restore the start of procurement to FY2019, as planned under the FY2012 budget; 
• the plan to design the SSBN(X) with 16 SLBM tubes rather than 20; 
• the likelihood that the Navy will be able to reduce the average procurement cost of boats 2-12 in the program to the target figure of $4.9 billion each in FY2010 dollars; 
• the accuracy of the Navy’s estimate of the procurement cost of each SSBN(X); 
• the prospective affordability of the Ohio replacement program and its potential impact on funding available for other Navy shipbuilding programs; and 
• the question of which shipyard or shipyards will build SSBN(X)s. 

This report focuses on the Ohio replacement program as a Navy shipbuilding program. CRS Report RL33640, U.S. Strategic Nuclear Forces: Background, Developments, and Issues, by Amy F. Woolf, discusses the SSBN(X) as an element of future U.S. strategic nuclear forces in the context of strategic nuclear arms control agreements.


Date of Report: December 10, 2012
Number of Pages: 44
Order Number: R41129
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