Wikipedia.org | The National Defense Authorization Act (NDAA) for Fiscal Year 2012[1] was signed into United States law on December 31, 2011 by President Barack Obama.[2][3]
The Act authorizes $662 billion[4] in funding, among other things "for the defense of the United States and its interests abroad." In a signing statement, President Obama described the Act as addressing national security programs, Department of Defense health care costs, counter-terrorism within the U.S. and abroad, and military modernization.[5][6] The Act also imposes new economic sanctions against Iran (section 1045), commissions reviews of the military capabilities of countries such as Iran, China, and Russia,[7] and refocuses the strategic goals of NATO towards energy security.[8]
The most controversial provisions to receive wide attention are contained in Title X, Subtitle D, entitled "Counter-Terrorism." In particular, sub-sections 1021 and 1022, which deal with detention of persons the government suspects of involvement in terrorism, have generated controversy as to their legal meaning and their potential implications for abuse of Presidential authority. Although the White House[9] and Senate sponsors[10] maintain that the Authorization for Use of Military Force (AUMF) already grants presidential authority for indefinite detention, the Act states that Congress "affirms" this authority and makes specific provisions as to the exercise of that authority.[11][12] The detention provisions of the Act have received critical attention by, among others, the American Civil Liberties Union (ACLU) and some media sources which are concerned about the scope of the President's authority, including contentions that those whom they claim may be held indefinitely could include U.S. citizens arrested on American soil, including arrests by members of the Armed Forces.[13][14][15][16][17]
[edit] Indefinite detention without trial: Section 1021
Detainees upon arrival at
Camp X-Ray, January 2002. In May 2006, the UN Committee against Torture condemned prisoners' treatment at Guantánamo Bay, noting that indefinite detention constitutes per se a violation of the UN Convention Against Torture.
Pursuant to the AUMF passed in the immediate aftermath of the September 11, 2001 attacks, the NDAA text affirms the President's authority to detain, via the Armed Forces, any person "who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners," and anyone who commits a "belligerent act" against the U.S. or its coalition allies, under the law of war, "without trial, until the end of the hostilities authorized by the [AUMF]." The text authorizes trial by military tribunal, or "transfer to the custody or control of the person's country of origin," or transfer to "any other foreign country, or any other foreign entity."[18] An amendment to the Act that would have explicitly forbidden the indefinite detention without trial of American citizens was rejected by the Senate.[19]
Addressing previous conflict with the Obama Administration regarding the wording of the Senate text, the Senate-House compromise text, in sub-section 1021(d), also affirms that nothing in the Act "is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force." The final version of the bill also provides, in sub-section(e), that "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." As reflected in Senate debate over the bill, there is a great deal of controversy over the status of existing law.[20].
[edit] Requirement for military custody: Section 1022
All persons arrested and detained according to the provisions of section 1021, including those detained on U.S. soil, whether detained indefinitely or not, are required to be held by the United States Armed Forces. The law affords the option to have U.S. citizens detained by the armed forces but this requirement does not extend to them, as with foreign persons. Lawful resident aliens may or may not be required to be detained by the Armed Forces, "on the basis of conduct taking place within the United States."[21][22]
[edit] Actions from the White House and Senate leading to the vote
In an executive statement to the Senate (11/17/11) President Obama expressed his administration's opposition to the provision as follows: "The Administration strongly objects to the military custody provision, which would appear to mandate military custody for a certain class of terrorism suspects... Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets." The White House threatened to veto the Senate version of the Act,[9] arguing that while "the authorities granted by the Authorization for Use of Military Force Against Terrorists, including the detention authority... are essential to our ability to protect the American people... (and) Because the authorities codified in this section already exist, the Administration does not believe codification is necessary and poses some risk."
During debate within the Senate and before the Act's passage, Senator Mark Udall introduced an amendment intended to forbid the indefinite detention of U.S. citizens[23][citation needed]; the amendment was rejected by a vote of 37–61.[24] Udall subsequently voted for the Act in the joint session of congress that passed it, and though he remained "extremely troubled" by the detainee provisions, he promised to "push Congress to conduct the maximum amount of oversight possible." [25]
The Senate later adopted by a 98 to 1 vote a compromise amendment, based upon a proposal by Senator Dianne Feinstein, which preserves current law concerning U.S. citizens and lawful resident aliens detained within the United States.[26] After a Senate-House compromise text explicitly ruled out any limitation of the President's authorities, but also removed the requirement of military detention for terrorism suspects arrested in the United States, the White House issued a statement saying that it would not veto the bill.[27]
While Senator Feinstein and others have argued that current law does not allow the indefinite detention of American citizens, the Obama Administration, Senators Carl Levin and John McCain have argued that it may still allow it.[10] In his Signing Statement, President Obama stated his executives’ position: “"I have signed the Act chiefly because it authorizes funding for the defense of the United States and its interests abroad, crucial services for service members and their families, and vital national security programs that must be renewed…I have signed this bill despite having serious reservations with certain provisions that regulate the detention, interrogation, and prosecution of suspected terrorists." [28]
[edit] Controversy over indefinite detention
[edit] American and international reactions
Section 1021 and 1022 have been called a violation of constitutional principles and of the Bill of Rights.[29] Internationally, the UK-based newspaper The Guardian has described the legislation as allowing indefinite detention "without trial [of] American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay;"[30] Al Jazeera has written that the Act "gives the US military the option to detain US citizens suspected of participating or aiding in terrorist activities without a trial, indefinitely."[31] The official Russian international radio broadcasting service Voice of Russia has been highly critical of the legislation, writing that under its authority "the US military will have the power to detain Americans suspected of involvement in terrorism without charge or trial and imprison them for an indefinite period of time;" it has furthermore written that "the most radical analysts are comparing the new law to the edicts of the 'Third Reich' or 'Muslim tyrannies.'"[32] The Act has been opposed by the ACLU and Human Rights Watch, and received criticism from The New York Times,[33] and other news organizations.[34][35]
[edit] Views of the White House
On December 31 and after signing the National Defense Authorization Act for Fiscal Year 2012 into law, President Obama issued a statement on it that addressed "certain provisions that regulate the detention, interrogation, and prosecution of terrorism suspects." In the statement Obama maintains that "the legislation does nothing more than confirm authorities that the Federal courts have recognized as lawful under the 2001 AUMF. I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens. [...] My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable law. [...] As my Administration has made clear, the only responsible way to combat the threat al-Qa'ida poses is to remain relentlessly practical, guided by the factual and legal complexities of each case and the relative strengths and weaknesses of each system. Otherwise, investigations could be compromised, our authorities to hold dangerous individuals could be jeopardized, and intelligence could be lost. I will not tolerate that result, and under no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention."[36]
[edit] Legal arguments that the legislation does not allow indefinite detention
Mother Jones has written that the Act "is the first concrete gesture Congress has made towards turning the homeland into the battlefield," arguing that "codifying indefinite detention on American soil is a very dangerous step." The magazine has nevertheless contested claims by The Guardian and The New York Times that the Act "allows the military to indefinitely detain without trial American terrorism suspects arrested on US soil who could then be shipped to Guantánamo Bay," writing that "they're simply wrong... It allows people who think the 2001 Authorization to Use Military Force against the perpetrators of the 9/11 attacks gives the president the authority to detain US citizens without charge or trial to say that, but it also allows people who can read the Constitution of the United States to argue something else."[37] Some legal commentators emphasize the different ramifications of (1) applying the "laws of war" to persons detained pursuant to the AUMF or (2) applying domestic criminal law.[38] Rivkin & Casey, for example, argue that detention under the AUMF is authorized under the laws of war and is not indefinite because the authority to detain ends with the cessation of hostilities. They argue that the NDAA invokes "existing Supreme Court precedent . . . that clearly permits the military detention (and even trial) of citizens who have themselves engaged in hostile acts or have supported such acts to the extent that they are properly classified as 'combatants' or 'belligerents.'" This reflects the fact that, in their view, the United States is, pursuant to the AUMF, at war with al-Qaeda, and detention of enemy combatants in accordance with the laws of war is authorized. In their view, this does not preclude trial in civilian courts, but it does not require that the detainee be charged and tried. If the detainee is an enemy combatant who has not violated the laws of war, he is not chargeable with any triable offense. Commentators who share this view emphasize the need not to blur the distinction between domestic criminal law and the laws of war. [39] [40]
[edit] Legal arguments that the legislation allows indefinite detention
The American Civil Liberties Union has responded that despite claims by the Obama Administration to the contrary, "The statute contains a sweeping worldwide indefinite detention provision... [without] temporal or geographic limitations, and can be used by this and future presidents to militarily detain people captured far from any battlefield." The ACLU furthermore commented that "While President Obama issued a signing statement saying he had 'serious reservations' about the provisions, the statement only applies to how his administration would use the authorities granted by the NDAA," and maintains that "the breadth of the NDAA’s detention authority violates international law because it is not limited to people captured in the context of an actual armed conflict as required by the laws of war."[41]
[edit] Sanctions targeting the Iranian Central Bank
As part of the ongoing dispute over Iranian uranium enrichment, section 1245 of the NDAA imposes unilateral sanctions against the Central Bank of Iran, effectively blocking Iranian oil exports to countries which do business with the United States.[42][43] The new sanctions impose penalties against entities — including corporations and foreign central banks — which engage in transactions with the Iranian central bank. Sanctions on transactions unrelated to petroleum take effect 60 days after the bill is signed into law, while sanctions on transactions related to petroleum take effect a minimum of six months after the bill's signing.[43] The bill grants the U.S. President authority to grant waivers in cases in which petroleum purchasers are unable, due to supply or cost, to significantly reduce their purchases of Iranian oil, or in which American national security is threatened by implementation of the sanctions.[43][44] Following the signing into law of the NDAA, the Iranian rial fell significantly against the U.S. dollar, reaching a record low two days after the bill's enactment, a change widely attributed to the expected impact of the new sanctions on the Iranian economy.[45][46][47][48] Officials within the Iranian government have threatened to close the Strait of Hormuz, an important passageway for Middle East oil exports, should the U.S. press forward with the new sanctions, as planned.[46][49]