National Defense Authorization Act (NDAA)

H.R. 4435, National Defense Authorization Act for FY15  passed the House of Representatives on May 22, 2014. The legislation provides the pay, funding and authorities for America’s men and women in uniform, and is the key mechanism by which Congress fulfills its primary constitutional responsibility to “provide for the common defense.”

Fact sheet

Detainee language

Two years ago, through the incorporation of H.R. 4388, Right to Habeas Corpus Act, which I cosponsored, the bill makes clear beyond a shadow of a doubt that every American will have his day in court. The FY13 NDAA also prohibits the transfer of detainees from Guantanamo Bay to the United States and prohibits use of funds to house Guantanamo terrorist detainees in the United States.

Section 1029. Rights Unaffected. (Actual conference report text)

Nothing in the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112-81) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.

FY12 NDAA

As terrorists have decentralized and sought new safe havens from which to carry out attacks on U.S. soil, Congress acted last year to ensure our military men and women risking their lives to defend us from such attacks on are on solid legal ground. Last year the FY12 NDAA reaffirmed the authority to go after terrorists who are part of or substantially supporting al Qaeda, the Taliban, or associated forces. 

There was a fair amount of inaccurate information and misunderstanding about the FY12 NDAA. There were some misunderstandings related to two provisions involving the detention of Al Qaeda terrorists. Over the past decade, the United States has detained members of Al Qaeda, the Taliban, and associated groups when they have been captured on the battlefield. In fact, some were released and had to be recaptured or killed because they went back to killing American soldiers. Both the Bush and Obama Administrations have detained those individuals who are members of Al Qaeda, the Taliban, and associated groups, and the courts have affirmed the ability to do so under the U.S. Constitution. But, the specific authorization for detention was inferred from the Authorization to Use Military Force; it was not explicitly stated in statute.

The NDAA explicitly stated that authority in statute, on the exact same terms as the courts have recognized it with one exception. The bill added explicit protections for American citizens – even American citizens who have joined Al Qaeda to take up arms against the United States.

Some people have argued that these provisions would allow a President to detain American citizens within the United States indefinitely if he brands them a terrorist. That is not true.

Here are two specific provisions from the bill. Read them yourself.

SUBTITLE D. SEC. 1021. (p. 655)

(e) AUTHORITIES.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

SUBTITLE D. SEC. 1022. (p. 657)

(b) APPLICABILITY TO UNITED STATES CITIZENS AND LAWFUL RESIDENT ALIENS.—

    (1) UNITED STATES CITIZENS.—The requirement to detain a person in military custody under this section does not extend to citizens

    of the United States.

If words have meaning, that is about as clear as English can get.

Some of the misunderstanding arose because there have been several versions of the bill language and previous versions did not have all of the protections that were in the final bill. Other misunderstanding came because some groups do not agree with current law. Some of them believe that all Al Qaeda terrorists should have the full constitutional rights of an American citizen, including the right to consult a lawyer, even on the battlefield.

Those debates will continue. But the purpose of this bill was to put into statute the current legal standard agreed upon by two administrations and the courts.

Prior to the passage of the FY13 NDAA with the amended language, for my constituents who believed even further clarity was needed, I cosponsored H.R. 3676 to amend the detainee provisions of the National Defense Authorization Act (NDAA) for Fiscal Year 2012. The legislation would "specifically state that United States citizens may not be detained against their will without all the rights of due process afforded to citizens in a court ordained or established by or under Article III of the Constitution of the United States."

To all of my constituents with whom I spoke personally, as well as those who contacted my office to express their concerns, I was pleased to be able to offer this constructive solution.

FULL BILL TEXT FOLLOWS:

To amend the detainee provisions of the National Defense Authorization Act for Fiscal Year 2012 to specifically state that United States citizens may not be detained against their will without all the rights of due process afforded to citizens in a court ordained or established by or under Article III of the Constitution of the United States.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. DUE PROCESS RIGHTS OF UNITED STATES CITIZENS.

    (a) Application to Detainee Provisions- Subsection (e) of section 1021 of the National Defense Authorization Act for Fiscal Year 2012 is amended to read as follows:

    `(e) Protections-

        `(1) UNITED STATES CITIZENS- In applying this section and section 1022, no United States citizen may be detained against his or her will without all the rights of due process afforded to the citizen in a court ordained or established by or under Article III of the Constitution of the United States.

        `(2) LAWFUL RESIDENT ALIENS AND OTHER PERSONS IN THE UNITED STATES- Nothing in this section shall be construed to affect existing law or authorities relating to the detention of lawful resident aliens of the United States or any other persons who are captured or arrested in the United States.'.

    (b) Effective Date- The amendment made by subsection (a) shall take effect as of the date of the enactment of the National Defense Authorization Act for Fiscal Year 2012.