an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Much has been written about the detention provisions of the National Defense Authorization Act (NDAA), which the President signed into law on December 31. Marty Lederman and Steve Vladeck provide a comprehensive analysis at Opinio Juris (Part I is here and Part II here). (For other perspectives, see Raha Wala here, David Cole here, Bobby Chesney and Ben Wittes here, and Joanne Mariner here). There remains, however, considerable debate over the NDAA's meaning, and the extent to which it alters the status quo. I will not repeat the various arguments made on both sides nor will I attempt to cover the waterfront of issues the legislation raises. Rather, I offer a few broader points about the NDAA and what it signifies about U.S. counter-terrorism detention policy, more than a decade after 9/11.
The Militarization of Counter-Terrorism Detention. The military detention of suspected terrorists has been a cornerstone of U.S. counter-terrorism policy since 9/11. Both the Bush and Obama administrations have construed the 2001 Authorization for Use of Military Force (AUMF) to authorize the indefinite military detention of individuals who were part of or supported al Qaeda, the Taliban, or associated forces. (The Obama administration has required that the support be "substantial"). The Supreme Court in Hamdi v. Rumsfeld and lower courts in the post-Boumediene habeas litigation have upheld indefinite detention under the AUMF, although important questions remain over the scope of that detention authority. Under the AUMF, military detention is an option, as the executive remains free to choose between military detention or Article III prosecution (with prosecution in a military commission as a third option).
In 2009, however, Congress started to limit that discretion, largely in response to Obama's plan to close Guantanamo. Those limitations initially took the form of restrictions on the president's authority to release Guantanamo detainees into the United States. Before long, Congress had prohibited the president from using military funds to transfer a Guantanamo detainee to the United States for any purpose, including for federal prosecution. The ban on Article III prosecutions was sparked by the administration's decision to try Khalid Sheikh Mohammed and his 9/11 co-conspirators in federal court (a decision the administration abandoned in the face of mounting political and public opposition). The Article III-transfer-ban effectively mandated that Guantanamo detainees who remained in U.S. custody would remain in military custody. At the same time, Congress placed significant constraints on the president's ability to transfer Guantanamo detainees to their home countries or to third countries by imposing burdensome certification requirements that were difficult to satisfy.
The NDAA expands mandatory military detention beyond Guantanamo by requiring military jurisdiction over all "covered" terrorist suspects, as defined in the statute (except for U.S. citizens, whom the NDAA exempts from mandatory military detention). Prior versions of the bill threatened to go further. The Senate version, for example, would have required that the president seek a waiver from the Secretary of Defense to prosecute a covered terrorism suspect in federal court, while the House version restricted the use of funds for terrorism prosecutions. In the face of a veto threat, Congress diluted the mandatory detention provision. Under the NDAA, the President can waive the requirement of military detention. Additionally, the NDAA states that the requirement "shall not be construed to affect the existing criminal law enforcement and national security authorities of the FBI or any other domestic law enforcement agency." These changes, however, only slow the continued creep of militarization. The NDAA not only continues the ban on prosecuting Guantanamo detainees in federal court but creates a new--and wholly unprecedented--presumption of military custody. While the current administration will seek to preserve its options, the legislation tilts the balance further towards military detention and away from Article III courts. It could also provide political cover to this--or to a future--administration that chooses to place a terrorism suspect in military custody.
Codification and Institutionalization. The NDAA, for the first time, codifies an indefinite military detention standard. Tracking the Department of Justice's position in the Guantanamo detainee litigation, it authorizes the military detention of, inter alia, individuals who were "part of" or "substantially supported" al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the U.S. or its coalition partners. The AUMF, by contrast, was silent on detention, and spoke only of the President's authority to use military force against those nations, organizations, or persons responsible for the 9/11 attacks and those who harbored them. Courts, as noted above, have nevertheless interpreted the AUMF to authorize some quantum of military detention. While the Supreme Court has thus far upheld more limited detention authority under the AUMF, the NDAA's detention standard roughly mirrors the broader standard applied by the D.C. Circuit in the Guantanamo habeas litigation, a standard that contains no geographical limitation or requirement of direct participation in hostilities.
As a practical matter, the NDAA will have limited effect on the Guantanamo habeas cases. The D.C. Circuit has accepted that individuals who are "part of" al Qaeda, the Taliban, or associated forces are detainable under the AUMF. The NDAA ratifies this construction. The NDAA provides more clarity on the "support" prong than the D.C. Circuit has. (See Marty and Steve's post for a detailed discussion of this issue as well as Kevin Jon Heller's insights here http://opiniojuris.org/2011/12/31/detention-under-the-ndaa-and-the-limits-of-analogy/ on the tensions created by the effort to apply international armed conflict principles to a non-international armed conflict with a transnational terrorist organization). Yet, none of the Guantanamo habeas cases thus far have turned on the "support" prong, and it would be a rare situation in which a person provided the requisite support to al Qaeda or an associated force without also being "part of" those groups, as these terms have been interpreted. The NDAA aside, the main controversy in the Guantanamo litigation today centers on procedural and evidentiary issues, which the NDAA does not purport to address. By supplying a detention standard, the NDAA will shift the focus even further from defining the category of individuals who may be detained and towards the question of what evidence the government must provide in a habeas proceeding (and how) to demonstrate that a person falls within that category.
Yet, the codification of the detention standard is not without consequence. It makes indefinite detention at once more durable and permanent. It also signifies the degree to which indefinite detention has gained acceptance among all three branches of government. The NDAA could, moreover have an impact on this or a future administration's decision to employ military detention against individuals arrested in the United States. Because of a late amendment from Senator Feinstein, the NDAA states that it does not affect existing law relating to the military detention of individuals arrested in the United States. Domestic military seizure and detention has proven highly controversial: it has been utilized only in two instances (the cases of Jose Padilla and Ali al-Marri), and not since 2003. Yet, the Supreme Court has not ruled definitively on the issue and the Obama administration has never conceded that it lacks authority under the AUMF to detain militarily a terrorism suspect arrested in the United States. The NDAA--with its presumption of military detention for covered non-citizens--could embolden a future president to place a suspected terrorist arrested in the United States in military custody. Indeed, in his signing statement, President Obama pledged only that he would not place U.S. citizens in military detention; he remained silent with respect to using the AUMF domestically against non-citizens (whereas before, administration officials had said the President would not subject anyone arrested in the United States to military detention). If there is any silver lining from a litigation perspective, it is that the NDAA potentially strengthens arguments that a clear statement is required to authorize domestic military detention given the new crop of constitutional problems such detention would raise (e.g., by triggering mandatory military detention inside the United States).
Executive Power, Tool Maximization, and Civil Liberties. The NDAA prompted far more vigorous opposition from the Obama administration than any of Congress' prior restrictions on the his authority over detainee affairs--including its previous transfer restrictions that have rendered the President's promise to close Guantanamo a dead letter. The reason is that the NDAA's mandatory detention provision presented the most serious threat to the President's ability to use all available tools--criminal prosecution, law-of-war-detention, and military commissions--as he deems appropriate. Thus, the administration's veto statement emphasized the threat the legislation posed to the executive's ability to incapacitate terrorism suspects and not the civil liberties ramifications of denying individuals federal trials. While this is hardly surprising, the opposition to the NDAA highlights the extent to which concerns for individual rights remain marginalized in debates over counter-terrorism policy. Indeed, defenses of federal courts--including those from many human rights and civil liberties groups--buy into this framework, emphasizing federal courts' conviction rates in terrorism cases rather than their due process guarantees. To the extent civil liberties concerns are raised, the emphasis is on preserving the rights of U.S. citizens, not all individuals in U.S. custody.
The Obama administration has demonstrated its willingness to resist measures that would limit its use of all available tools to incapacitate terrorism suspects. It has proven far less willing to expend political capital on closing Guantanamo, once a centerpiece of its efforts to restore the rule of law. The NDAA provides a small window of opportunity to breath a modicum of life into closure. It permits the Defense Secretary to waive certification requirements for transferring Guantanamo detainees to other countries--requirements that, along with the Obama administration's own suspension of repatriations to Yemen, have brought detainee transfers to a standstill. Under the NDAA, the Defense Secretary can waive the requirement of certifying that there have not been any cases of recidivism in the receiving country if he certifies that "alternative actions will be taken" that will "substantially mitigate" the risk that the individual will engage in future terrorist activities. Whether this waiver provision is invoked to transfer detainees the administration has cleared for release will prove instructive. For one thing, it will shed on light on whether maintaining the executive's flexibility is a one-way street, intended only to maximize the state's power to incapacitate, without concern for protecting those deprived of their freedom.