Privacy SOS

Terror Tuesday: The NDAA is back!

What was the most underreported story of 2012?

According to Project Censored, it was “Signs of an Emerging Police State,” as evidenced by President Obama putting his signature last New Year’s Eve on the NDAA of 2012.

“FBI Agents Responsible for Terrorist Plots” made number 4 on the list.

But back to Number 1: Congress is now in the process of passing the National Defense Authorization Act (NDAA) of 2013, and chances are it has been entirely off your radar screen.

You may recall that sections 1021 and 1022 of the NDAA of 2012 authorized the President to order the military to arrest and indefinitely imprison people anywhere in the world, far from any battlefield.

Although the language of these resolutions was deliberately ambiguous, several Members of Congress asserted that they could be used against US citizens who could be picked up within the United States and denied their constitutional rights. And once a “suspect” was in military custody, the NDAA provisions made it very difficult for him or her to be transferred to the civilian judicial system.

There was considerable grassroots activism against the NDAA of 2012, much of it coordinated by the Bill of Rights Defense Committee and the ACLU. Activism has spanned the political spectrum, with Tea Party activists and the Occupy movement organizing opposition to the provisions.

In Virginia, the Republican governor signed into law legislation that prohibited any “agency of the Commonwealth” from “knowingly” aiding the US armed forces “in the detention of any citizen” pursuant to the NDAA of 2012.

The legislatures of Arizona and Maine went on record opposing the NDAA, while

two bills were recently filed against it in the Texas state legislature by Republican representatives.

And a few months ago, Katherine Forrest, a federal judge appointed by President Obama, sided with the US citizen plaintiffs who challenged the constitutionality of these NDAA provisions. Her rulings brought swift appeals from the Obama Administration.

While all of this was happening, the 600-page NDAA of 2013 authorizing 2/3rds of a trillion dollars in spending for the armed forces was before Congress.

Introduced on March 29, 2012, by the time the new defense bill was voted on in mid May by the House it contained some troubling provisions.

Sections 1221 and 1222 essentially authorized war with Iran. Again, the NDAA severely restricted the executive branch’s ability to transfer detainees out of Guantanamo.

An amendment termed “The Smith-Mundt Modernization Act” which was added to the NDAA permits the government to create and distribute pro-American propaganda within the US to counter al-Qaeda propaganda, striking down a long-standing ban.

But what about the indefinite detention provisions?

The version of the NDAA of 2013 that passed the House on May 18 by a vote of 299 – 120 – with the entire Massachusetts delegation except for Rep. Tsongas voting against it – contained language revealing that the grassroots campaign was having some impact:


Congress finds the following:

(1) Article 1, section 9 of the Constitution states `The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.'.

(2) Regarding the Great Writ, the Supreme Court has noted `The writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.'.


(a) Rule of Construction- 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 for any person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) and who is otherwise entitled to the availability of such writ or such rights.

(b) Notification of Detention of Persons Under Authorization for Use of Military Force- Not later than 48 hours after the date on which a person who is lawfully in the United States is detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note), the President shall notify Congress of the detention of such person.

(c) Habeas Applications- A person who is lawfully in the United States when detained pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) shall be allowed to file an application for habeas corpus relief in an appropriate district court not later than 30 days after the date on which such person is placed in military custody.

These are reassuring words. But what do they mean?

They confirm what we already knew – that habeas corpus is a right established in the federal court system under Article III of the Constitution.

But they do not in so many words specify that Americans detained as “belligerents” would not be held in indefinite military detention and would not be subjected to military tribunals. Yes, they would eventually be able to file habeas petitions to the federal court system, but that does not guarantee their transfer from military detention to civilian jurisdiction.

In the words of Lawfare’s Benjamin Wittes, Section 1033 “is completely inconsequential. Indeed…its very purpose is to be inconsequential. House Republicans were not prepared for the sagebrush rebellion that developed in the conservative world against the NDAA’s detention provisions – and for the resulting pressure Republican members have come under from their constituents on this issue. This pressure has produced a strong desire on the part of some members to appear to be changing things. At the same time, Buck McKeon and many of his colleagues don’t really want to change last year’s NDAA, which was, please remember, rather less detention-happy than what they had originally proposed. The result is a bill consciously designed to appear to shift gears – and thereby calm conservatives down – yet actually change nothing at all.”

The fact that the House on May 18 voted 238 to 182 to reject the Smith-Amash Amendment that would have explicitly forbidden indefinite detention and military trials for anyone arrested on US soil on charges stemming from the NDAA is a good indication that the majority are not interested in making fundamental changes to the 2012 provisions.

The Smith-Amash Amendment was supported by the entire Massachusetts delegation.

So what happens now?

Attention shifts to the Senate. The text marked up and unanimously approved by a roll call vote of the Senate Armed Service Committee in late May did not contain Sections 1032 and 1033.

Senator Mark Udall (D-CO), a member of the Armed Services Committee, had introduced the Due Process and Military Detention Amendments Act of 2012 in early March. Along with its companion piece, the “Civil Liberties Act” or HR 5936 (with Reps. Adam Smith, Justin Amash and John Garamendi among co-sponsors), it was considered the best route for meaningful NDAA reform since it repealed Section 1022 outright and specifically banned the indefinite detention and use of military commissions within the US.

Senator Udall’s bill was referred to the Armed Services Committee but never got a roll call vote. The House version has similarly never made it out of committee. The Senator has said he will wait until the bill reaches the Senate floor before trying again to undo indefinite detention.

Meanwhile, misleading, piecemeal reform has been put forward by Sen. Rand Paul (R-KY). Entitled the “Protection of 6th Amendment Rights of United States Citizens Captured in the United States Pursuant to the Authorization for Use of Military Force,” it states:

A citizen of the United States who is captured or arrested in the United States and detained by the Armed Forces of the United States pursuant to the Authorization for Use of Military Force (Public Law 107-40) shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

It has been called purely symbolic by critics since it simply reiterates what the Sixth Amendment says and would apply only to citizens, not all “persons” which is the language used by the Bill of Rights.

As Robert Chesney wrote in Lawfare, Sen. Paul might have intended to preclude the use of military detention, but the text does not actually say so:

Instead, it merely specifies a set of prosecution-related rights (specifically, those already guaranteed by the Sixth Amendment) that must be adhered to should the government decide to pursue a prosecution. This will not effectively foreclose a decision to forego prosecution in favor of relying on the non-criminal option of military detention under color of the law of war, the AUMF, and the NDAA. If Congress aims to foreclose military detention for citizens in the U.S. (either altogether or at least for periods of detention lasting beyond some initial stage), it will need to be more explicit.

Senate Majority Leader Harry Reid (D-NV) had hoped to get a vote in the Senate on the NDAA before the Thanksgiving break. But Sen. Paul put a hold on the legislation and threatened a filibuster if Reid does not permit a vote on his amendment.

The Senate has now resumed its operations and wants to get the NDAA passed and reconciled with the House version during this lame duck session. Negotiations are underway to induce Sen. Paul to allow the bill to move forward.

Unless Members of Congress hear overwhelmingly from their constituents, the indefinite detention provisions of last year’s NDAA clothed in language designed to dupe the public into thinking that this is a new and improved version that is in tune with the Constitution is likely to end up on the President’s desk before the end of the year.

A recent New York Times editorial recommends that Obama veto the NDAA of 2013 if it still contains “damaging restrictions on dealing with terrorism suspects” and current provisions barring the executive branch from transferring Guantanamo detainees “for repatriation or settlement in foreign countries or for prosecution in a federal criminal court.” To sign it would mean “permanently marring Mr. Obama’s record of safeguarding American justice and protecting human rights.”

Stay tuned for future developments – and get ready to weigh in with your elected representatives before the final vote.

The alternative is to lie down before the emerging police state.

© 2021 ACLU of Massachusetts.