National Defense Authorization Act FY2012: An obscure and likely danger
On Monday a House-Senate conference reported out compromise language for the FY2012 National Defense Authorization Act. Last night, Wednesday, the House passed the conference-approved version. The vote was 283 to 186, with Republican libertarians and Democratic liberals sharing the minority.
As previously posted at Homeland Security Watch, the separate House and Senate versions of the legislation included provisions that had caused the President to threaten a veto. As I write this on Wednesday night, the White House has, according to CNN, decided not to veto what emerged from the conference.
I have not yet been able to secure a copy of the conference language. It’s certainly out there and I have just not had time to look in the right place. (It’s been a tough week.) Following is the language adopted by the Senate that causes me the greatest concern:
(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) 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 111–25 84)).428† S 1867 ES1 (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.
This executive authority is evidently extended even to citizens. Again, I have not seen the conference language. I hope there has been a substantive change.
But if not, and news reports suggest this section was not substantively changed, a citizen whom the Executive — on its own authority — determines has “substantially supported” a group that the executive has determined — on its own authority — is “associated” with Al-Qaeda or the Taliban, can be held without trial until the end of hostilities. No judicial review limits this power. Nothing but the Executive’s good faith and wisdom stands between a person and unlimited detention… until the end of hostilities.
There are other provisions of the Act worth active concern. But I have read and re-read this language and thought and re-thought the last ten years (3000 years) and I cannot fathom why any Congress would give any President this kind of authority.
If the President does not veto — and from a purely political perspective he should not veto — I find it hard to imagine the detention of a citizen under the Act being allowed to stand by the Supreme Court. It was, after all, Justice Scalia who wrote in Hamdi v. Rumsfeld, “The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive.”
But then a few years ago I would not have imagined such a measure ever moving beyond a quick burial by Congressional committee.
I see no clear and present danger suddenly springing from the law’s passage. But that the House and Senate in Congress assembled adopted this legislation — overwhelmingly — and a President will apparently sign it, ought be noted by future historians with keen interest. I hope those future scholars will have cause to claim the body-politic soon recovered its courage and sense of constitutional integrity.
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I am posting this quickly — perhaps too quickly — as a matter of keen personal interest. I have not had the time to research this as fully as I would like and my schedule for the next several days may not allow me to participate in discussion. It is a good time to tear me to shreds. I will not be around to defend myself. But especially because I will not be in a position to post, I welcome your informed corrections.
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UPDATE
Please see comments for link to conference language.
Please also see commentary by Glenn Greenwald providing substantive analysis of the actual legislation, another contribution from a reader.
