Revisiting the NDAA

Jan 29, 2012 - NEWS
Over the last two weeks, there have been a number of calls into numerous talk radio shows that are claiming that the NDAA contains a provision that states that the law does not apply to US citizens. Our writeup on the 2012 NDAA explains this misconception and shows the floor debates in which numerous Senators flatly state that any US citizen accused of being allied with al-Qaeda should not be able to access a lawyer.
The relevant portion of the legislation is section 1021. In that section, Congress affirms that the President has the right to arrest and detain any "covered person" under the 2001 authorization for the use of force against al-Qaeda. It then defines a "covered person" as anyone that participated in the September 11, 2001 attacks or supports or al-Qaeda. It allows these people to be detained until the end of hostilities, until they are tried under the Military Commissions Act, or until they are transfered to their home country.
As stated, the ability of the President to arrest and detain US citizens who are allied with al-Qaeda is already defined through the 2001 use of force. However, in the case of Jose Padilla it was determined that US citizens arrested on US soil who were accused of terrorism were in fact accused of a crime and had access to a lawyer and their civil rights. The reason given by the courts was that the US homeland was not a part of the battlefield in the war on terror.
The NDAA changes that by declaring that the homeland is now a battlefield. The changes the accusation of terrorism from a crime to an act of war. The legislation uses the the phrase "affirms" because the President already has the power of arrest and indefinite detention on a battlefield.
Subsection e of section 1021 states 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." This is the section that people are confusing as possibly stating that the law does not apply to US citizens.
However, the section states that nothing in the legislation is meant to change current law relating to detaining US citizens, because no change is necessary. As we have said, US law already states that the President can arrest and detain US citizens that were captured on the battlefield in the war on terror. The NDAA simply declares the US a part of the battlefield in that war, so there is no need to change US law relating to arrest and detention. The US is simply re-classified to fall under that law. The relevant section is shown below.
SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARYFORCE.
(a) IN GENERAL.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) COVERED PERSONS.—A covered person under this section is any person as follows:
  1. A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
  2. A person who was a 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, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) DISPOSITION UNDER LAW OF WAR.—The disposition of a person under the law of war as described in subsection (a) may include the following:
  1. Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
  2. Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).
  3. Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
  4. Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.
(d) CONSTRUCTION.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.
(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.

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